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Municipal Law Q&A
Question: Must you engage in collective bargaining
if you employ 20 regular employees and 20 summer employees?
As you may have expected, the answer to this question is not
a simple yes or no. Based on a recent Illinois Appellate Court decision,
the answer to this question depends on whether or not the summer employees
were "assured" that they would be rehired the subsequent year.
In City of Tuscola v. The Illinois State Labor Relations Board and The
Policemen's Benevolent Labor Committee, 732 N.E.2d 784, 247 Ill. Dec. 729
(4th Dist. 2000), the Policemen's Benevolent Labor Committee ("the
Union") filed its representation and certification petition with the
State Labor Relations Board ("the Board") seeking to represent
all sworn police officers of the city below the rank of Chief of Police.
The City subsequently filed a motion to dismiss the Union's petition, arguing
that the Board lacked jurisdiction since the City had fewer than 35 employees
and, as such, did not meet the threshold jurisdictional requirement under
section 20(b) of the Public Labor Act. 5 ILCS 315/20(b) (West 1998).
The administrative law judge had to determine whether the City's 21 swimming
pool employees were "short-term employees," because "short
term employees" do not meet the definition of "employees"
under the Act. The administrative law judge found that the swimming pool
employees had a reasonable assurance of being rehired from year-to-year,
and therefore, the swimming pool employees could not be considered short-term
employees. The administrative law judge concluded that the Board had jurisdiction
over the City because, once the swimming pool employees were included in
the count (since they were not short-term employees), the city had 35 employees
or more. The city appealed this decision.
The appellate court stated that the Act defines short-term employees
as "an employee . . . who does not have a reasonable assurance that
he or she will be rehired by the same employer for the same service in a
subsequent calendar year." The court held that a "reasonable assurance
of rehire" requires some evidence that the employer made some type
of representation that the employee could have reasonable construed as an
"assurance" that he or she would be rehired at a later date. Because
the City did not have a policy favoring former summer swimming pool employees
over other applicants nor did any city employee ever make a statement that
would provide swimming pool employees with a reasonable assurance that they
would be rehired, the court found that there was no evidence that the employees
had been assured rehire.
Therefore, the appellate court concluded that the swimming pool employees
were short-term employees that would not be counted toward the 35 threshold
jurisdictional requirement under the Act. The court reversed the Public
Labor Board's decision, holding that the board did not have jurisdiction
over the City because the City was a municipality with fewer than 35 employees.
Governmental bodies in their contracts and personnel documents should
clearly delineate that short-term employees have no assurance of being rehired.
Our lawyers can help you in the drafting and review of these documents.
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