Fire Union Still Furiously Spinning Staffing Bill Facts

Is it possible to award more than four Pinocchio's? 

The AFFI must be getting some push back from their ill-conceived fire department staffing legislation. Despite passage of the bill, the union's president felt compelled to respond to an editorial in the Champaign News-Gazette and tried to once again get the carousel spinning in defense of the legislation. Let's deconstruct some of the "facts" asserted by the union in the op-ed:

Assertion
When Illinois firefighters in 1986 surrendered their right to strike, they traded service for the sake of the public's safety and well-being.

In return, they received several collective-bargaining considerations. One consideration was the implication that safe staffing levels could be negotiated with the employer and resolved through binding arbitration if the parties were unable to reach an agreement.

Reality
You need to read this statement carefully to understand the full measure of what's really being asserted. There's some word parsing going on. Notice the use of the word "implication?" 

Why is the word "implication" being used? Because the actual text of the law doesn't say what they want it to say. HB 5485 deliberately inserts the word "manning" into the bill because it was never there to begin with. That's why the union had to introduce HB 5485. And it's quite curious to introduce a bill that sets out to achieve what you claim to already have as a function of statutory law.  

Despite the word not being included in current law, the union persisted in telling legislators and anyone that would listen that staffing levels have always been a mandatory subject of bargaining. How do they argue this in the absence of such a provision in the actual law? The union argues that the sponsor of the firefighter collective bargaining legislation "intended" for staffing to become subject to bargaining and interest arbitration. The union points to the transcripts of the 1986 floor debate to make its point. But even the transcripts don't go that far. 

The transcripts, which are available here, only contain references to "equipment" manning. This pertains to the number of firefighters that must accompany an apparatus and is a wholly separate issue from the number of firefighters that must staff a shift. HB 5485 would require bargaining and interest arbitration over shift manning.

References to fire department staffing levels are not only absent from the text of the Illinois Labor Relations Act, but a review of the House transcripts cited by the fire union doesn't even carry the "implication" that "staffing levels" were intended to be included as a mandatory subject of bargaining within the 1986 law.

Assertion
The General Assembly's action on firefighter staffing does not establish the arbitration process for manning. It was already there and has been there for nearly 30 years. There are numerous examples of firefighters arbitrating this very important topic with their employer.

Reality
This is partly true, but mostly false because it takes an exception and attempts to suggest that it is the rule. 

Cities that have agreed to bargain and arbitrate over staffing are required by law to include staffing within future collective bargaining negotiations. HB 5485 would not alter this requirement one iota. These cities would have been compelled to continue to bargain over staffing with or without HB 5485. 

HB 5485 is a significant change in law because of what it would mean for cities that don't have staffing provisions in their contracts. These cities are not presently required to bargain over staffing. That is, unless HB 5485 becomes law. If enacted, all cities with unionized fire departments would be mandated to bargain over staffing levels as a function of law. But the union conveniently omits the full explanation of current law and the important distinction contained therein - that a few cities have elected to bargain over manning and must continue to do so, while most cities have not and are not required to bargain. Instead, the union infers that the arbitration requirement has been applicable in all cities with unionized fire departments since the 1986 collective bargaining law was enacted. This is bogus and extremely misleading.

Assertion
Furthermore, you suggest the legislation will cost local governments untold chunks of money. In fact, the opposite is true.

Let's look at Oak Lawn, a Chicago suburb whose mayor and village trustees tried to end-run the arbitration process and were rejected by circuit, appellate and state supreme courts.

The taxpayers of Oak Lawn wasted $2.5 million in lawyers' fees and court awards, money for litigation that could have paid for over 25 firefighters for a year — including salary and all related benefits.

Reality
Partly true but with a very notable omission. Oak Lawn did expend $2.5 million in trying to remove the staffing requirement from its collective bargaining contract. But the Village did so because the staffing provision is costing Village taxpayers almost $2 million per year in overtime costs in order to meet the terms of the staffing levels. Spending $2.5 million to try and save Village taxpayers tens of millions over multiple years changes the complexion of this story dramatically. But the annual overtime cost was somehow omitted from the union's narrative. Funny how that works!

The op-ed then becomes sanctimonious about how the $2.5 million in legal fees could have been spent:

Or it could have fixed dozens of potholes, replaced crumbling sewers and sidewalks or put a couple bad guys in jail. Better yet, the money could have been abated back to the people who pay their property taxes with the expectation they'll get service, not pay for lawyers' vacation homes.

Good to see the fire union so concerned about the many financial obligations incurred by the Village. Perhaps they'll give up the many more millions in unnecessary overtime out of concern for the Village and its taxpayers? Don't hold your breath. 

While on the subject of Oak Lawn, let's shine a spotlight on another matter that the union saw fit to exclude. Here's an excerpt from labor lawyer Ben Gehrt's testimony before the Senate Executive Committee:

Let’s talk a little more about Oak Lawn. The Union claims that the litigation in Oak Lawn has been a boondoggle, wasting tax payers money on lawyers. What the Union wants you to ignore is this: in 2014, Oak Lawn went to interest arbitration. The Village showed that because of minimum staffing, their overtime costs increased from $200,000 to $1.8 million. The Village proposed changes that would save $1.3 million per year in overtime costs. The Union refused to even consider those changes. In interest arbitration, the Village proved with expert testimony that it could change its staffing levels without any adverse impact on safety. 

Arbitrator Ed Benn, one of the most respected arbitrators in the state, called the Village’s proposal a “good idea.” Nonetheless, the Arbitrator’s ruling was straightforward: no, the Village has to keep the artificially inflated staffing levels simply because that is the “status quo.” Oak Lawn is saddled with $1.3 million in unnecessary overtime costs. That is money that could go towards pensions, police officers, roads, business development, tax relief, or any one of hundreds of good causes. Instead, it has to be spent on an inflated staffing level.

So the union portends to be the defender of the taxpayer and prudent fiscal practices in an op-ed (even throwing in some class warfare for good measure), but not so much at the bargaining table. And therein lies a big part of the problem, particularly when the union argues that HB 5485 will "save" money. And yes, they actually argued that point. 

Unfortunately, 9 members of the Senate Executive Committee listened to Mr. Gerht's testimony about the costs (or deprived savings) that arbitrating staffing levels can impose on taxpayers and weren't influenced by it whatsoever. 

The fire union got away with a big one here. And they received some help in doing so. But perhaps this is another case of having to pass the bill so that we can find out what's in it. 

Related Posts:
Politics Trumps Policy with Passage of Fire Department Staffing Bill
The Anatomy of a Spin Job
The Evolution of the Fire Service in Three Graphs
Is Illinois' Fire Service Economically Viable?

Legislators Should Carefully Vet Minimum Wage Legislation

Business groups have understandably cried foul about legislation in the Illinois Senate that would incrementally increase the minimum wage to $11 per hour. Raising the minimum wage would obviously increase the cost of doing business, particularly for retailers. And much of this cost would be passed onto consumers through higher prices for goods and services. Probably not a great policy at a time when Illinois' economy is already sluggish and slow to rebound. 

But now it seems that the state could potentially burden human service providers if it follows through with a minimum wage increase:

As Democratic lawmakers renew their push to raise the state's minimum wage, there's a key sector of employers that finds itself stuck in the middle — nonprofit groups that care for some of the state's most vulnerable, including the elderly and disabled. 

That's because while they'd like to pay their workers more, many of those agencies receive the bulk of their funding from the state. Given Illinois' dire financial situation — which will only grow worse if portions of a temporary income tax increase expire as scheduled Jan. 1 — it means they could be on the hook for higher salaries without getting more money from the state to cover the additional costs.

I suppose that the state could always increase payments to these providers to offset the additional costs, but anyone with any knowledge of the depth of Illinois' fiscal problems would find that to be an unlikely option. If anything, it wouldn't be surprising to see the state reducing payments to human service providers over the next few budget cycles. Governor-elect Rauner has reportedly requested that state agencies draft-up FY2016 budgets to reflect 20 percent cost reductions. Those would be some pretty significant cuts if they come to fruition. 

In any event, the impact to service providers is probably another reason for the General Assembly to exercise considerable discretion and slow things down a bit on the drive to increase the minimum wage. 

SB 68 is expected to be further amended, with one of the amendments possibly restricting Chicago's home rule authority to increase the minimum wage above the level established by the state. And there might be a disagreement brewing between the House and Senate over how many votes this would require: 

Lawmakers would need a three-fifths vote margin in each chamber to pre-empt home rule. Lightford says she has enough votes to do that in the Senate. The fate of a minimum wage hike is less certain in the House, where Democrats have a large but narrower margin and lawmakers tend to be more conservative. Legislators are scheduled to return to the Capitol for action in early December.

This is generally correct. Per the Illinois Constitution, home rule preemptions require a supermajority vote of both chambers. This is apparently how the Senate intends to proceed. But the House may see things differently. From Capitol Fax (no link):

And such a preemption bill would not necessarily require a three-fifths majority to pass, says the top House Democratic attorney.

"If the state is saying we're not going to regulate it and you can't regulate it either, that requires (a super-majority)," Heather Weir Vaught explained. However, when the state decides to regulate something and tells municipalities they can't, then that only requires a simple majority, she said.

Could each chamber require a different vote threshold based upon two different "interpretations" of the Illinois Constitution? And could this introduce the possibility of litigation over "process" questions should a minimum wage cap be enacted without a supermajority vote? Anyway, both chambers should figure this out and get on the same page if they're intent to move forward on some kind of minimum wage cap. 

Here's what Article 7, Section 6 says about preempting home rule power:

(g) The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (l) of this section.

But there's no guarantee that the House would rush to embrace the broader minimum wage bill anyway:

House Majority Leader Barbara Flynn Currie, who is a sponsor of the minimum wage bill, doesn’t anticipate much movement. 

“We didn’t have the votes to do it in the spring, and I’m not sure even though there was good support for it,” she said.

But then again...

But Mr. Madigan got big-time help from labor unions this year, including some unions (such as the American Federation of State, County and Municipal Employees) that haven't contributed to him in many a year. He told the Chicago Tribune Nov. 13 that he's “encouraging” his members to vote for the minimum wage hike.

Illinois politics always keeps you guessing.

Update (December 1):

I spoke with Heather Weir Vaught and she said that both chambers are on the same page in the view that a home rule preemption to cap the minimum wage would only require a simple majority. 

Politics Trumps Policy With Passage of Fire Department Staffing Bill

Sometimes policy takes a backseat to politics in the legislative process. This usually happens when legislators want to advance legislation to either bolster their re-elections or reward loyal political supporters. 

We saw an example of "politics trumping policy" to appease a powerful political ally last week when the Illinois Senate sided with the statewide firefighter union to advance a bill proposing an expansion of collective bargaining rights to allow firefighters to bargain over fire department staffing levels. 

The bill represents a substantial change to labor law because it makes negotiation over staffing levels a mandatory subject of bargaining in all unionized fire departments. 

Not to get overly wonky, but Illinois law essentially puts cities into two camps with respect to mandatory bargaining over staffing levels. 

The first camp includes cities that have already agreed to bargain over staffing levels and have such provisions in their labor contacts. These cities are mandated to continue to bargain over staffing levels with their unions. 

The second camp includes cities that do not presently have staffing provisions within their firefighter labor contracts. Negotiations over staffing levels are considered to be a "permissive" subject of bargaining in these cities. This means that the cities can discuss staffing levels with their unions, but the unions can't force the issue before an arbitrator if there is a disagreement. This reality is supported by numerous arbitration and Illinois Labor Relations Board decisions. 

Which brings us to why the firefighter union introduced HB 5485.

The bill would eliminate this distinction and allow firefighter unions to take staffing level decisions to interest arbitration in any city if the parties reach impasse. Consequently, third party arbitrators with no knowledge of fire science would have more power to make staffing level decisions than the elected leaders of a community.

Cities with unionized fire departments stood in vehement opposition to this bill. They were joined in their opposition by newspapers and editorial boards around the state: 

Examples of statewide editorial opinion against HB 5485.

Some of these editorials successfully shined a spotlight on the bill last spring. The resulting attention influenced bill proponents to avoid calling the bill in the Senate prior to the November election. The bill had already passed the House with a narrow majority last spring. 

Why was the bill so unpopular with cities? Two reasons. First, it was the latest proposal out of Springfield to curtail the authority of locally-elected officials. Second, and more importantly, the bill allows fire unions a major say in something that has been a managerial right because it pertains to "standards of service." 

There is a direct correlation between service standards and budgetary resources. So, if an arbitrator determines that a city must hire one additional firefighter per shift for a community with three fire stations, then the community would need to hire nine additional firefighters to cover each shift. If it costs that community $100 thousand per firefighter for wages and benefits, then the city has just assumed a new funding obligation of about one million dollars. This obligation grows each year with wage and health insurance cost increases.

And then there's the flipside. Because the arbitrator would have to approve any staffing reductions when revenues decline, it would become exceedingly difficult to reduce headcount to reflect fiscal realities. Taxes would need to be increased, or services would need to be disproportionately reduced among other departments (i.e., police). 

Another example of the cost impact of obligatory staffing levels can be seen in my hometown of Oak Lawn. Under existing law, cities that have staffing level provisions in their labor contracts must continue to bargain over staffing.  Oak Lawn agreed to include a staffing provision years ago and is now stuck with it. The taxpayers of Oak Lawn are obligated to pay $2 million per year in overtime costs because the Village is contractually obligated to maintain staffing levels. The Village wants out from under this expensive staffing requirement, but the union and arbitrators won't budge. 

But these are policy issues and I want to get back to motivation and process factors because these are what ultimately carried the day.

Because the stakes were high, cities poured their efforts into an organized campaign to stop the bill during the Veto Session. This included another round of opposition editorials and stories. 

Mayors held a Springfield press conference to rally public opposition to HB 5485.

Cities reached out to their Senators to urge that they vote against the bill. Some even did so publicly: 

Unfortunately, the Senator didn't heed the request of the mayor of his largest city and voted for the bill.

With the election a thing of the past, the bill was assigned to the Senate Executive Committee for a November 19 hearing. This was probably the first indication that the skids were likely greased to advance the bill.  The Senate Executive Committee is tightly-controlled by Senate Leadership. Union-supported bills aren't assigned to Senate Executive Committee to die.

Cities relied primarily on the testimony of a highly-respected labor attorney in an effort to derail the bill in the Executive Committee. But, as I indicated, union-supported bills don't go to the Executive Committee to die. The bill was approved 9-2-3 and advanced to the Senate Floor. 

Labor attorney Ben Gehrt testified against HB 5485 before the Senate Executive Committee.

Want proof that pressure was brought to bear on legislators to support this bill? Without mentioning names, one of the Democratic Senators on the Executive Committee had committed to a mayor that he would oppose the bill. Immediately before the hearing began, that Senator entered the public gallery to seek out the mayor to tell him that he had to change his vote and support the bill. Hey, at least he told him before the vote. That does count for something in this business.

For procedural reasons the proponents weren't able to call the bill for final Senate passage until the day after the Senate Executive Committee hearing. During debate, Senator Pam Althoff (R-McHenry) urged her Senate colleagues to hold the bill until a compromise could be fully explored that might mitigate opposition from the cities. A compromise amendment had already been offered and summarily rejected, by the way. Bill supporters, particularly the statewide firefighter union, weren't interested in waiting when they were a Senate vote away from sending the bill to the Governor. And they knew that they likely had the votes.

Senators debating HB 5485 on the Senate Floor. Senator Pam Althoff is standing at left. The sponsor, Senator John Mulroe, is standing in the back row to the right of the doors.

Proponents unveiled some dubious arguments in favor of passing the bill during debate in the Executive Committee and on the Senate Floor. For example, that the bill would somehow cap litigation costs (it won't) and only clarifies existing law (it changes existing law). They even argued that a 2011 appellate court case determined outright that staffing was a mandatory subject of bargaining (it didn't) only to later argue the reverse position by positing that the case actually undermined the law (that was a real head-spinner!). But, whatever, they wanted to pass their bill pretty badly. Rich Miller summed it up perfectly in his post about the staffing bill over at the Capitol Fax blog:

Indeed.

To increase the likelihood that the votes would be there to pass the bill, proponents indicated their intention to pass a "trailer" bill in the spring to try and address some of the objections raised by opponents. While there may in fact be such a bill, offering to address issues only after the bill becomes law is a fairly common legislative tactic used to provide some cover to convince fence-sitters to support a bill. In this instance, they can vote for the bill and tell their mayors that they did so because they were assured that the concerns of the mayors would be addressed later.

A "trailer bill" may in fact occur, but the mayors now have no leverage to extract anything of real value because the firefighter union and its supporters already got what they wanted. Why give anything of value back after you've already won?

The bill passed 42-11-4. It needed a super-majority of 36 votes to pass because it had an immediate effective date and the vote occurred after May 31. A simply majority is needed between January and June. 

I'm almost certain that a few Senators voted for the bill once it became obvious that it would get the required 36 votes. These Senators will go back to their mayors and tell them that they made a tactical vote to join the prevailing side, but wouldn't have been the "36th vote." And that's probably the case. 

The bill still has to be signed into law by the Governor, but Governor Quinn is a strong supporter of the firefighter union and is likely to sign the bill.

And that's what happens when politics takes priority over good public policy. 

Related Posts:
The Anatomy of a Spin Job
The Evolution of the Fire Service in Three Graphs

Is Illinois' Fire Service Economically Viable?

Media:
Daily Herald: Sinister Signals: Lawmakers Show Their Loyalties with Vote on Union Staffing Bill

The Anatomy of a Spin Job

Cities across Illinois are girding for an uphill fight during the Veto Session to prevent the Illinois State Senate from acquiescing to the demands of the Associated Fire Fighters of Illinois for an unprecedented expansion to Illinois' collective bargaining law. HB 5485 would confer the right to submit disagreements over fire department staffing levels to interest arbitration.

The powerful firefighter union is trying to hoodwink legislators into believing that firefighters are being denied a statutory right that they have, in fact, never possessed. Under this bogus narrative, villainous local officials have suddenly become emboldened to harass financially-strapped local bargaining units by trying to take away their right to bargain over how many firefighters work on a shift.

In reality, the fire union is poised to achieve a feat that no other local government unions have accomplished through statutory fiat. The absolute and uncontestable right to have a third-party, unappointed by city officials and unelected by voters, decide how many employees work for a municipal department.

Under Illinois law, fire department staffing levels are a permissive subject of bargaining. This means that cities without staffing level provisions in their contracts are under no requirement to have the matter submitted to third-party arbitration. 

To be fair, Illinois law provides that a city must bargain and be subject to binding arbitration over fire department staffing levels if the provision is already included within the contract. This point is not being disputed by opponents of HB 5485.

But the firefighter union is working overtime to bamboozle legislators into believing that ALL cities fall under this bargaining and arbitration requirement. Based on this fallacious argument, the firefighters contend that cities that refuse to submit to interest arbitration over staffing levels are subverting the law. They further contend that this "subversion" if forcing local fire unions to expend financial resources to "reclaim" a right that does not exist under Illinois law.

Why is this issue so significant?

Personnel expenses are the most significant cost drivers facing cities. These costs include wages, health insurance benefits, and pension obligations. Each of these provisions must be bargained under current law. If the city and labor union reach impasse, the matter goes before an arbitrator. If the city loses, then it's taxpayers on the hook for the additional costs associated with the arbitration award.

But as personnel costs increase, cities have always had recourse to hold the line on costs by reducing headcount. They could reduce staff, or forego planned hires, without the need to seek permission from the union. Determining how many employees work in a municipal department is an exclusive prerogative of management and directly related to the determination of "standards of service." Service standards are a policy matter exclusively reserved for officials that possess the legitimacy of having been elected by the residents of a community.

If cities lose control over the number of firefighters employed by the fire department, then the likelihood of local tax hikes and service cuts increase.

Beware the interest group that claims it is only trying to "clarify what the law already says." Such claims are always signs of a soft sell and a clear indication that something much more substantial is afoot. The Associated Fire Fighters of Illinois is betting that it can create enough confusion over the issue that legislators already predisposed to support firefighters can be seduced into making a major change in law without even realizing the extent of their actions.