FREQUENTLY ASKED QUESTIONS
UNFAIR LABOR PRACTICE ISSUES
Section 10 of the Illinois Public Labor Relations Act (Act) defines the protected rights of public employers, labor organizations and public employees.
Section 10 of the Act also defines unfair labor practices under the Act. Section 1220 of the Board’s Rules and Regulations (Rules) explains the Board’s procedures for filing unfair labor practice charges.
If you believe that your employer or your union has committed an unfair labor practice under the Illinois Public Labor Relations Act,
you may file an unfair labor practice charge with either the State Panel or the Local Panel, depending on the identity of your employer (see first question, below).
You may file a charge by mail or by in-person delivery to the appropriate Board office. For State Panel petitions, the form must be filed in the Springfield office.
For Local Panel petitions, the form must be filed in the Chicago office. The following are the most commonly asked questions concerning the Board’s unfair labor practice procedures:
Who is covered under the Act’s unfair labor practice provisions?
The Act applies only to public employers, public employees, and the labor organizations which represent those public employees.
The first step in processing an alleged unfair labor practice is the filing of a charge, which may be against either a public employer, union, or in some cases, both.
Before the Board can process a charge, it must determine if it has jurisdiction. The State Panel has jurisdiction over only those public employers which employ 5 or more public employees.
This employee limit does not include executive department heads or elected officials, or employees who meet the managerial, supervisory, confidential, independent contractor or
short-term employee definitions contained in Section 3 of the Act. Further, individuals who meet any of these definitions are not public employees within the meaning of the Act.
With the exception of firefighters and peace officers employed by a State university or a school district, the State Panel does not have jurisdiction over educational employers.
The Local Panel has jurisdiction over units of local government with a population in excess of 2 million persons, excluding the Regional Transportation Authority.
This includes the County of Cook and the City of Chicago, as well as such public entities as the Chicago Transit Authority, the Chicago Park District, and the Chicago Housing Authority.
Again, individuals who meet the managerial, supervisory, confidential, independent contractor or short-term employee definitions contained in Section 3 of the Act, or
who are executive department heads or elected officials, are not public employees within the meaning of the Act.
What is an unfair labor practice?
The Act grants certain rights to public employees, labor organizations and public employers. A public employer or a labor organization commits an unfair labor practice when it violates those rights under the Act.
Not every workplace action that you may view as unfair constitutes an unfair labor practice within the jurisdiction of the Illinois Public Labor Relations Act (Act), as only those particular rights set forth in the Act are protected.
What employee rights are protected by the Act?
- The right to form, join or assist labor organizations without fear of discrimination, penalty or retaliation:
- the right to bargain collectively with their employer through representatives of their own choosing;
- the right to engage in other lawful, concerted activities for the purpose of collective bargaining; and
- the right to refrain from participating in any and all of these activities.
When does a public employer commit an unfair labor practice?
A public employer commits an unfair labor practice whenever it engages in any of the following acts:
- Interfering with, restraining or coercing employees in the exercise of their rights granted in the Act; or dominating or interfering with a labor organization;
- discriminating against employees in order to encourage or discourage membership in/or support for a labor organization;
- discriminating against an employee who has signed or filed an affidavit, petition or charge with the Board, or who has provided any information or testimony pursuant to the Act;
- refusing to bargain in good faith with the exclusive bargaining representative;
- violating any rule or regulation of the Board concerning the conduct of representation elections;
- spending public funds to an external agent, individual, agency or association in an attempt to influence the outcome of a representational election; and
- refusing to reduce a collective bargaining agreement to writing or to sign such an agreement. (Section 10(a) of the Act).
When does a labor organization commit an unfair labor practice?
A labor organization commits an unfair labor practice whenever it engages in any one of the following:
- Restraining or coercing public employees in the exercise of rights granted in the Act or violating its duty to fairly represent employees by acting with intentional misconduct;
- restraining or coercing a public employer in the selection of its representative for collective bargaining or grievance settlement purposes;
- attempting to cause an employer to discriminate against an employee, thereby causing the employer to commit an unfair labor practice;
- refusing to bargain in good faith, if it is the exclusive bargaining representative;
- violating any rule or regulation of the Board concerning the conduct of representation elections;
- discriminating against an employee who has signed or filed an affidavit, petition or charge with the Board, or has provided any information for or testified at a Board hearing;
- unlawfully picketing a public employer; and
- refusing to reduce a collective bargaining agreement to writing or to sign such an agreement. (Section 10(b) of the Act).
Who may file unfair labor practice charges with the Board?
A public employee, labor organization or a public employer may file unfair labor practice charges with the Board.
However, an individual is not permitted to file a charge alleging a violation of either the Employer's or the Union's duty to bargain in good faith.
Who represents an individual employee who files a charge?
The union represents an individual employee when it files a charge on behalf of the individual.
When an individual files a charge without the union’s assistance, the individual represents himself/herself or hires an attorney to represent him/her.
In certain circumstances, the Board may appoint and pay for an attorney to represent an individual who satisfies certain income eligibility requirements.
What is the time limit for the filing of an unfair labor practice charge?
Generally, a charge must be filed within six (6) months of the date the alleged violation occurred, or within six (6) months of the date the charging party should reasonably have become aware of the alleged violation. (Section 11(a) of the Act)
Who bears the responsibility for proving that an unfair labor practice has been committed?
The person or the entity filing the charge has the burden of proving that an unfair labor practice has been committed.
What happens when a charge is filed with the Board?
The charge is assigned to a Board investigator. The investigator speaks with the party filing the charge (Charging Party) and the person or entity against whom the charge is filed (Respondent)
to discover the circumstances surrounding the charge. The investigator may request additional information or documents.
The investigator may also schedule a meeting with the parties in an effort to resolve the matter informally.
If the investigation reveals the existence of an issue of law or fact, the Executive Director will issue a Complaint for Hearing (Complaint) setting the matter for hearing before an Administrative Law Judge.
If the investigation reveals that there are no legal or factual issues sufficient to warrant a hearing, the Executive Director will dismiss the unfair labor practice charge.
What happens when the Executive Director issues a dismissal of the unfair labor practice charge?
If the Executive Director issues a dismissal of the entire charge or a portion of the charge, the Charging Party may appeal the dismissal to the appropriate Panel of the Board.
The appeal must be filed with the Board's General Counsel in the Chicago office no later than 10 days after service of the notice of dismissal.
The Board will either sustain the Executive Director's order of dismissal, or reverse the dismissal and either remand the matter for further investigation or order that a hearing be held.
What happens when the Executive Director issues a Complaint?
The Complaint sets the hearing process in motion. The Complaint sets forth the dispositive facts and allegations; informs the parties that a hearing is necessary to resolve the matter;
names the administrative law judge who will preside over the hearing; and requires the Respondent to answer each of the allegations in the Complaint prior to a hearing.
What happens in a hearing?
Unfair labor practice hearings are held before an impartial Administrative Law Judge appointed by the Board.
Unfair labor practice hearings are adversarial proceedings, and the party filing the unfair labor practice charge has the burden of proving that the Act has been violated.
During the hearing, each party has an opportunity to question witnesses under oath, present relevant written evidence, argue orally and file written briefs.
A court reporter transcribes the proceedings. After the hearing closes and briefs are filed, the Administrative Law Judge reviews the entire record and issues a written Recommended Decision and Order which is sent to both parties.
What remedies may the ALJ order when it determines that an unfair labor practice has been committed?
The Administrative Law Judge can order the Respondent take whatever action is necessary to “effectuate the purposes of the Act.”
As far as is possible, the Board attempts to "restore the status quo ante;" that is, to place the parties in the same position they were in before the unfair labor practice occurred.
Often, the Administrative Law Judge will require the Respondent to post a notice that it has violated the Act and that it will cease and desist from engaging in the unfair labor practice.
Depending on the nature of the unfair labor practice, other remedies might include ordering the Respondent to reinstate employees, with or without back pay; to rescind a work rule or policy; or to engage in good-faith bargaining.
Do the parties have appeal rights to the Administrative Law Judge’s Recommended Decision?
Parties may appeal an Administrative Law Judge’s Recommended Decision by filing “exceptions” with the Board within 30 days of receiving the recommended Decision.
The exceptions must be accompanied by a detailed written brief in support of the exceptions. The Board reviews the entire record and the exceptions to the Administrative Law Judge’s recommended decisions.
The Board then issues a decision either affirming or reversing the Administrative Law Judge’s recommended decision. Parties may appeal a Board’s decision directly to the Appellate Court. (Section 1220.60 of the Rules)
Sections 6 and 9 of the Illinois Public Labor Relations Act (Act) define representation rights protected by the Act.
Section 1210 of the Boards’ Rules and Regulations (Rules) outlines the procedures for representation issues. The following are the most commonly asked questions concerning representation issues:
What is a public employer?
Section 3(o) of the Act defines a public employer as the State of Illinois; any political subdivision of the State, or a unit of local government.
Who is a public employee?
Section 3(n) of the Act defines a public employee as an individual employed by a public employer.
However, the Act excludes certain employees such as supervisors, managers, confidential employees, short-term employees or independent contractors as they are so defined by the Act.
Why is the Act’s public employee definition so important?
Individuals designated as public employees have representation rights as defined by the Act. Individuals who are excluded from the definition of public employee do not enjoy the rights and protections of the Act.
What is a labor organization?
Section 3(i) of the Act defines a labor organization as an organization in which public employees participate and which exists for the purpose, in whole or in part,
of dealing with a public employer concerning wages, hours and other terms and conditions of employment, including the settlement of grievances.
What is an appropriate bargaining unit?
Section 3(s) of the Act defines a bargaining unit as a class of jobs or positions that are held by employees whose collective interests may suitably be represented by a labor organization for collective bargaining.
Section 9(b) of the Act provides that the Board will determine in each case whether a bargaining unit is appropriate for purposes of collective bargaining.
The factors that the Board considers in determining unit appropriateness include, but are not limited to, the following: historical pattern of recognition; community of interest
including employee skill and functions; degree of functional integration; interchangeability and contact among employees; fragmentation of employee groups;
common supervision, wages, hours and other working conditions of the employees involved; and the desires of the employees.
What is an exclusive bargaining representative?
Section 3(f) of the Act defines an exclusive bargaining representative as a labor organization that has been designated by the Board as the representative of a majority of public employees in an appropriate bargaining unit.
When a labor organization is designated as the exclusive bargaining representative it acts as the voice of employees when negotiating with the employer regarding terms and conditions of employment.
How does a labor organization become the exclusive bargaining representative for a unit of public employees?
A labor organization becomes the exclusive bargaining representative for public employees when it wins an election held pursuant to an appropriately filed representation,
decertification, or intervention petition or when the employer voluntarily recognizes the labor organization as the exclusive bargaining representative pursuant to a voluntary recognition petition.
What is a representation petition?
A representation petition is a Board designated form filed by a labor organization requesting that the Board hold an election to determine whether a majority of employees in an appropriate bargaining unit
desire the labor organization as their exclusive bargaining representative. The representation petition must be supported by a showing of interest that at least 30% of the employees in the petitioned for bargaining unit
wish to be represented by the labor organization. (Section 1210.40 of the Rules).
What is a showing of interest?
A showing of interest is evidence 1) in the case of a representation petition or intervention petition, that an employee desires to represented by a particular labor organization or
2) in the case of a decertification petition, that an employee no longer wishes to be represented by the labor organization which is the current exclusive bargaining representative.
Such evidence may consist of authorization cards or petitions that are signed, dated and clearly state the employee’s intent. The cards and petitions are valid for 12 months following the date of the employee signatures.
The Board maintains the confidentiality of the cards and petitions submitted to support the showing of interest. (Section 1210.80 of the Rules).
What happens after a representation petition is filed?
Upon receipt of the petition, a Board Agent (Investigator) is assigned to investigate the petition. Generally, the investigation consists of first determining whether the petition is, on its face, appropriate.
If so, the investigator then determines whether the parties can agree to an appropriate bargaining unit and consent to holding an election.
If the parties do not consent to holding an election, a hearing will be ordered to resolve any issues of law or fact.
Can the Board dismiss a representation petition without a hearing?
The Board will dismiss a representation petition without a hearing under a variety of circumstances such as: when the petition is untimely filed; the petitioned for employees are not covered by the Act;
the petition is not supported by the requisite showing of interest; or when the unit is clearly not appropriate.
What types of issues do representation hearings address?
Representation hearings are held to determine a variety of issues such as whether a petition should be dismissed for any of the above reasons.
Most often, however, the hearing involves the appropriateness of a bargaining unit and/or the definition of a public employee.
What is an intervention petition?
An intervention petition is a Board designated form filed by a labor organization seeking to participate in an election to be held pursuant to a representation petition.
The petition must be supported by a showing of interest that at least 10% of the employees wish to be represented by the intervening labor organization.
If the intervening labor organization satisfies the above requirements it will also be placed on the ballot for the representation election. (Section 1210.50 of the Rules).
What is a decertification petition?
A decertification petition is a Board designated form filed by public employees requesting that the Board order an election
to determine whether a majority of employees in a bargaining unit maintain their desire to be represented by the exclusive bargaining representative.
The petition must be supported by a showing of interest that at least 30% of the employees do not want the incumbent labor organization to continue serving as their exclusive bargaining representative. (Section 1210.60 of the Rules).
What is a voluntary recognition petition?
A voluntary recognition petition is a Board designated form that is filed jointly by an employer and a labor organization requesting the Board certify the labor organization as the exclusive bargaining representative
without holding an election because the labor organization clearly represents a majority of employees in an appropriate unit.
Upon receipt of the petition, the Board requires the employer to post, for 20 days, a Board designated notice of its intent to recognize the labor organization.
The employer is then required to file a Certification of Posting with the Board confirming that it has posted the notice for the 20 days and certifying that no intervening petitions have been filed. (Section 1210.160 of the Rules).
When can representation, intervention, voluntary recognition, or decertification petitions be filed?
When there is a current exclusive bargaining representative and a valid collective bargaining agreement in effect, such petitions can only be filed during what is referred to as the “window period”
(generally not less than 60 days or more than 90 days prior to the expiration date of the agreement). When there is no collective bargaining agreement, the petitions may be filed at any time. (Section 1210.70 of the Rules).
What are the Board's election procedures?
Once the parties agree on the relevant issues or the Board determines any uncontested issues an election is held under the supervision of a Board Agent.
The ballot lists the labor organization or organizations involved and the choice of “no representation”. The employees vote by secret ballot. After the voting is completed the Board Agent counts the ballots.
The choice receiving the majority of the votes is declared the winner. If there is no majority the Board will order a run-off election.
What is a decertification election?
A decertification election is held just like a representation election except that the ballot asks the employees to answer “yes” or “no” as to whether they wish to retain the existing labor organization as their exclusive representative.
What are the eligibility requirements for voting in an election?
To be eligible to vote in an election, an employee must have been in the bargaining unit as of the last day of the payroll period immediately prior to the date of the direction of election or
the approval of a consent election agreement and must still be a member of the bargaining unit on the date of the election. (Section 1210.130 of the Rules).
MAJORITY INTEREST PETITION ISSUES
What is a majority interest petition?
A majority interest petition is a board generated form filed by a union seeking certification as the exclusive bargaining representatives for a unit of employees, not through an election but through the Board's card check procedures.
What is card check?
Card check is simply another name to describe the majority interest procedures, whereby a union may be certified as the exclusive bargaining representative,
if a majority of employees sign cards (or other evidence) indicating their desire to be represented by the union. The Board checks the cards to determine majority showing of interest.
Upon a satisfactory determination, the Board issues the certification.
Can a petitioner file a majority interest petition when another labor organization is currently recognized by the Act?
Section 1210.20(b) provides that a petitioner cannot file a majority interest petition when another labor organization is currently recognized by the Act.
Do contract, certification and election bars apply to majority interest petitions?
All three bars apply to majority interest petitions. (Section 1210.35(a), (b) and (c)).
What happens if a majority interest petition proposes a bargaining unit that includes craft and non-craft employees?
First, the Board will conduct an election to determine whether the employees wish to be included in a combined craft/no-craft unit.
Following the election the board will calculate the union's majority status for either a combined unit or separate units depending on the results of the election. (Section 1210.40(h))
What happens if the majority interest petition proposes a bargaining unit that includes professional and non-professional employees?
The Board will first conduct an election to determine if the employees wish to be included in a combined professional/non-professional unit.
Following the election, the Board will then calculate the union's majority status for either a combined unit or separate units, depending upon the results of the election. (Section 1210.40(i))
How is the showing of interest determined in majority interest petitions?
If labor organization is seeking to utilize the Board's card check procedures for determination of majority support,
the petition must be accompanied by a showing of interest evidencing that a majority of the employees in the petitioned for bargaining unit wish to be represented by the labor organization. (Section 1210.80(b))
What types of evidence are acceptable to support a showing of interest in majority interest petitions?
The showing of interest in support of a majority interest petition may consist of authorization cards, petitions or
any other evidence that demonstrates that a majority of the employees wish to be represented by the union for the purposes of collective bargaining. (Section 1210.80(2)(a))
How long is the showing of interest in majority interest petitions valid?
The showing of interest is valid if signed within six months of the filing of the petition. (Section 1210.80(2)(c))
What happens if an employee signed an authorization card for a majority interest petition but also signed an authorization card for other labor organizations to represent them?
The most recently signed card counts for the purpose of determining majority status. (Section 1210.80(e)(2))
What if the evidence submitted does not demonstrate the appropriate level of showing of interest?
The petitioner has five days to provide necessary showing of interest to the Board Agent. (Section 1210.80(e)(4))
Can an employee withdraw its authorization card or other documents evidencing majority support after the filing of a majority interest petition?
An employee may not withdraw its authorization card or other documents unless the basis for the withdrawal constitutes evidence of fraud or coercion on the part of the petitioner. (Section 1210.80(e)(6))
When can a party challenge the Board's showing of interest?
The showing of interest determination is not subject to litigation except upon a finding of a material issue of fact or law relating to fraud or coercion in majority interest petition cases. (Section 1210.80(e)(3)
What are the Board's procedures when a party has provided evidence relating to fraud or coercion?
If the Board finds a party has provided evidence demonstrating a material issue of fact or law relating to fraud or coercion,
it will conduct a hearing to determine whether there is clear and convincing evidence of fraud or coercion. (Section 1210.100(5)(b))
POLICE OFFICER DECERTIFICATION PROCEEDINGS
Under what circumstances does the Board participate in police officer decertification proceedings?
There are two circumstances when the Board becomes involved with police officer decertification proceedings:
1. When there has been an acquittal on a charge of murder and the defendant, or a police officer with personal knowledge of perjury, files a verified complaint with the Illinois Law Enforcement Training Standards Board (LETSB),
and LETSB has submitted a report to the Board's Executive Director; or
2. When there has been a finding of guilt on the offense of murder and a new trial has been granted on direct appeal or a State post-conviction evidentiary hearing has been ordered
based on the claim that a police officer committed perjury and an interested party has filed a petition for hearing with the Board. (Section 1240.40 (a) and (b))
What is the statute of limitation for filing a petition for hearing with the Board?
An interested party must file a petition for hearing with the Board within two years after the court's decision in order for the petition to be considered timely filed. (Section 1240.50(c)(2))
In a case arising upon a finding of appeal, where the Executive Director determines that a hearing should not be conducted, may interested parties appeal the Executive Director's determination?
The Executive Director's decision is within his sole discretion and the dismissal may not be appealed. (Section 1230.60(2)(a)(2))
How are verified complaints or petitions for hearing prosecuted?
An agent of the Illinois Department of Professional and Financial Regulation, Division of Professional Regulations prosecutes both verified complaints and petitions for hearing. (Section 1240.130(a)
What are the appeal procedures in police officer decertification proceedings?
Parties may file exceptions to the Administrative Law Judge's recommended decision. The Board reviews the Administrative Law Judge's recommended decision upon the timely filing of exceptions.
The Board's review constitutes a final, non-precedential order. A party aggrieved by the final order of the Board may obtain judicial review of that order in the Appellate Court for the district in which the accused officer resides.
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