Shift Trade Qualifications a Mandatory Subject of Bargaining for Illinois Firefighters

The Illinois Court of Appeals has ruled that it is an unfair labor practice for a fire department to unilaterally alter the qualifications of those eligible for shift-trades. In doing so the court affirmed a decision by the Illinois Labor Relations Board in favor of the Park Ridge Fire Fighters, IAFF Local 2697.

The case offers a good review of several basic labor law concepts including the scope of bargaining, mandatory subjects of bargaining, unfair labor practices, and management prerogatives. Let’s start with the facts:

• On November 4, 2018, Lieutenant/Paramedic John Ortlund submitted a shift trade request, pursuant to which Firefighter/Paramedic Zivko Kuzmanovich would cover his shift on December 25, 2018.
• Battalion Chief Scott Sankey approved the trade.
• However, Fire Chief Jeff Sorenson instructed Sankey to cancel the trade.
• In December 2018, Sorenson decided that individuals who were on the promotional list were the only individuals who were qualified to trade shifts with lieutenants.
• Kuzmanovich was not on the promotional list.
• Sorenson also decided that non-paramedic firefighters were no longer qualified to trade shifts with paramedics.
• For the past 25 years, non-paramedic firefighters could trade with paramedics and firefighters who qualified to act as lieutenants … could trade with lieutenants.
• Ortlund filed a grievance over the cancellation of his shift trade.
• About a month later, the Union filed a charge with the Board.
• Specifically, the Union alleged that without notice or bargaining the City unilaterally changed its policy regarding shift trades while contract negotiations were ongoing and during the pendency of interest arbitration proceedings.

The Illinois Labor Relations Board concluded that the city committed an unfair labor practice by making a unilateral change to a mandatory subject of bargaining, and rejected the city’s arguments of management prerogative and/or waiver. The city appealed.

In upholding the Labor Relations Board’s decision, the Court of Appeals ruled as follows (quotation marks and citations removed to facilitate reading):

• On appeal, the City contends that the new shift trade qualifications policy is not a mandatory subject of bargaining, as it was within the City’s inherent managerial authority and the burden of bargaining outweighs the benefits.
• An employer …  commits an unfair labor practice when it refuses to bargain in good faith with a labor organization that is the exclusive representative of a bargaining unit of public employees.
• Section 7 of the Act requires parties to bargain with respect to employees’ wages, hours and other conditions of employment, that is, with mandatory subjects of bargaining.
• We determine whether a matter is a mandatory subject of bargaining by applying the balancing test set forth in Central City Education Ass’n v. Ill. Education Labor Relations.
• The first part of the test requires a determination of whether the matter is one of wages, hours and terms and conditions of employment. If the answer to this question is no, the inquiry ends and the employer is under no duty to bargain.
• In determining whether the first prong of the Central City test has been fulfilled, we must determine if the change of the shift trade qualifications policy (1) involved a departure from previously established operating practices, (2) effected a change in the conditions of employment, or (3) resulted in a significant impairment of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit.
• Here, the City does not dispute that the shift trade qualification policy involved wages, hours and terms and conditions of employment.
• The change of the policy also departed from a 25-year practice of allowing out of class shift trades.
• If the answer to the first question is yes, then the second question is whether the matter is one of inherent managerial authority.
• Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees, examination techniques and direction of employees.
• The City argues that the qualifications for shift trades impacts the inherent management right to provide appropriate level of services for the community.
• That is, the City suggests Sorenson needed to be able to restrict who could request shift trades so that there were adequate paramedics/lieutenants available at any given time.
• However, this justification for Sorenson’s restrictions is undermined by the City’s actual practices.
• Following the change to the qualifications policy, the City still required firefighters who were not on the promotional list to act as a lieutenant [in non-shift trade situations].
• Sorenson acknowledged that these situations took place after he changed the policy.
• Accordingly, the City’s conduct of ignoring the new restrictions undermines its suggestion that they were necessary in the first place to meet the community’s needs.
• This belies its assertion that the restrictions fall within the scope of inherent managerial authority.
• Even if the changes to the shift trade qualifications policy was within the City’s inherent managerial authority, the City failed to establish that the burdens of bargaining outweigh the benefits.
• The third prong of the Central City test asks the Board to balance the benefits that bargaining will have on the decision making process with the burden that bargain imposes on the employer’s authority.
• The City failed to establish a burden since it previously allowed out-of-class trades for a period of 25-years.
• Accordingly, the Board did not err when it determined that shift trade qualifications were a mandatory subject of bargaining.
• The City argues that … the CBA established clear and unmistakable evidence that the Union waived its right to bargain over shift trade qualifications… [due to language that gives the Fire Chief or the Chief’s designee sole discretion to approve shift trades].
• We disagree. The “sole discretion” language modifies “approval of shift trades.”
• Thus, Sorenson has the sole discretion to approve or deny a trade.
• The CBA did not contain any express language regarding the qualifications for shift trades nor did it define the term “qualified.”
• Based on our reading of [the CBA] an employee must first be qualified to perform the duties of another employee before they can even request to trade shifts.
• Then once the request is made, Sorenson has sole discretion to approve or deny the request.
• Contrary to the City’s reading of [the CBA] the determination of qualifications comes before the trade request is submitted to Sorenson.
• Accordingly, the Board did not err by determining that [the CBA] did not constitute a “clear and unmistakable” waiver of the Union’s right to bargain over shift trade qualifications.

Here is a copy of the complaint: