HB4126 95TH GENERAL ASSEMBLY


 


 
95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB4126

 

Introduced , by Rep. Jim Durkin

 

SYNOPSIS AS INTRODUCED:
 
5 ILCS 315/3   from Ch. 48, par. 1603

    Amends the Illinois Public Labor Relations Act. Provides that no employee may be considered a "managerial employee" because he or she belongs to a classification of employees to whom executive and managerial functions may be delegated, unless the labor board in a hearing finds actual delegation on a regular basis. Provides that no employee may be classified a "managerial employee" because he or she performs professional duties. Provides that in determining an employee's status, the labor board shall consider the employee's actual job duties and responsibilities and the extent to which the employee has actual authority concerning the overall operations and governance of the employee's office or workplace. Provides that an employee of the Cook County States Attorney shall not be considered a "managerial employee" if that employee is not directly responsible for wages, fringe benefits, hours, holidays, vacations, sick leave, or other conditions of employment. Effective immediately.


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A BILL FOR

 

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1     AN ACT concerning government.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Illinois Public Labor Relations Act is
5 amended by changing Section 3 as follows:
 
6     (5 ILCS 315/3)  (from Ch. 48, par. 1603)
7     Sec. 3. Definitions. As used in this Act, unless the
8 context otherwise requires:
9     (a) "Board" means the Illinois Labor Relations Board or,
10 with respect to a matter over which the jurisdiction of the
11 Board is assigned to the State Panel or the Local Panel under
12 Section 5, the panel having jurisdiction over the matter.
13     (b) "Collective bargaining" means bargaining over terms
14 and conditions of employment, including hours, wages, and other
15 conditions of employment, as detailed in Section 7 and which
16 are not excluded by Section 4.
17     (c) "Confidential employee" means an employee who, in the
18 regular course of his or her duties, assists and acts in a
19 confidential capacity to persons who formulate, determine, and
20 effectuate management policies with regard to labor relations
21 or who, in the regular course of his or her duties, has
22 authorized access to information relating to the effectuation
23 or review of the employer's collective bargaining policies.

 

 

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1     (d) "Craft employees" means skilled journeymen, crafts
2 persons, and their apprentices and helpers.
3     (e) "Essential services employees" means those public
4 employees performing functions so essential that the
5 interruption or termination of the function will constitute a
6 clear and present danger to the health and safety of the
7 persons in the affected community.
8     (f) "Exclusive representative", except with respect to
9 non-State fire fighters and paramedics employed by fire
10 departments and fire protection districts, non-State peace
11 officers, and peace officers in the Department of State Police,
12 means the labor organization that has been (i) designated by
13 the Board as the representative of a majority of public
14 employees in an appropriate bargaining unit in accordance with
15 the procedures contained in this Act, (ii) historically
16 recognized by the State of Illinois or any political
17 subdivision of the State before July 1, 1984 (the effective
18 date of this Act) as the exclusive representative of the
19 employees in an appropriate bargaining unit, (iii) after July
20 1, 1984 (the effective date of this Act) recognized by an
21 employer upon evidence, acceptable to the Board, that the labor
22 organization has been designated as the exclusive
23 representative by a majority of the employees in an appropriate
24 bargaining unit; (iv) recognized as the exclusive
25 representative of personal care attendants or personal
26 assistants under Executive Order 2003-8 prior to the effective

 

 

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1 date of this amendatory Act of the 93rd General Assembly, and
2 the organization shall be considered to be the exclusive
3 representative of the personal care attendants or personal
4 assistants as defined in this Section; or (v) recognized as the
5 exclusive representative of child and day care home providers,
6 including licensed and license exempt providers, pursuant to an
7 election held under Executive Order 2005-1 prior to the
8 effective date of this amendatory Act of the 94th General
9 Assembly, and the organization shall be considered to be the
10 exclusive representative of the child and day care home
11 providers as defined in this Section.
12     With respect to non-State fire fighters and paramedics
13 employed by fire departments and fire protection districts,
14 non-State peace officers, and peace officers in the Department
15 of State Police, "exclusive representative" means the labor
16 organization that has been (i) designated by the Board as the
17 representative of a majority of peace officers or fire fighters
18 in an appropriate bargaining unit in accordance with the
19 procedures contained in this Act, (ii) historically recognized
20 by the State of Illinois or any political subdivision of the
21 State before January 1, 1986 (the effective date of this
22 amendatory Act of 1985) as the exclusive representative by a
23 majority of the peace officers or fire fighters in an
24 appropriate bargaining unit, or (iii) after January 1, 1986
25 (the effective date of this amendatory Act of 1985) recognized
26 by an employer upon evidence, acceptable to the Board, that the

 

 

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1 labor organization has been designated as the exclusive
2 representative by a majority of the peace officers or fire
3 fighters in an appropriate bargaining unit.
4     (g) "Fair share agreement" means an agreement between the
5 employer and an employee organization under which all or any of
6 the employees in a collective bargaining unit are required to
7 pay their proportionate share of the costs of the collective
8 bargaining process, contract administration, and pursuing
9 matters affecting wages, hours, and other conditions of
10 employment, but not to exceed the amount of dues uniformly
11 required of members. The amount certified by the exclusive
12 representative shall not include any fees for contributions
13 related to the election or support of any candidate for
14 political office. Nothing in this subsection (g) shall preclude
15 an employee from making voluntary political contributions in
16 conjunction with his or her fair share payment.
17     (g-1) "Fire fighter" means, for the purposes of this Act
18 only, any person who has been or is hereafter appointed to a
19 fire department or fire protection district or employed by a
20 state university and sworn or commissioned to perform fire
21 fighter duties or paramedic duties, except that the following
22 persons are not included: part-time fire fighters, auxiliary,
23 reserve or voluntary fire fighters, including paid on-call fire
24 fighters, clerks and dispatchers or other civilian employees of
25 a fire department or fire protection district who are not
26 routinely expected to perform fire fighter duties, or elected

 

 

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1 officials.
2     (g-2) "General Assembly of the State of Illinois" means the
3 legislative branch of the government of the State of Illinois,
4 as provided for under Article IV of the Constitution of the
5 State of Illinois, and includes but is not limited to the House
6 of Representatives, the Senate, the Speaker of the House of
7 Representatives, the Minority Leader of the House of
8 Representatives, the President of the Senate, the Minority
9 Leader of the Senate, the Joint Committee on Legislative
10 Support Services and any legislative support services agency
11 listed in the Legislative Commission Reorganization Act of
12 1984.
13     (h) "Governing body" means, in the case of the State, the
14 State Panel of the Illinois Labor Relations Board, the Director
15 of the Department of Central Management Services, and the
16 Director of the Department of Labor; the county board in the
17 case of a county; the corporate authorities in the case of a
18 municipality; and the appropriate body authorized to provide
19 for expenditures of its funds in the case of any other unit of
20 government.
21     (i) "Labor organization" means any organization in which
22 public employees participate and that exists for the purpose,
23 in whole or in part, of dealing with a public employer
24 concerning wages, hours, and other terms and conditions of
25 employment, including the settlement of grievances.
26     (j) "Managerial employee" means an individual who is

 

 

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1 engaged predominantly in executive and management functions
2 and is charged with the responsibility of directing the
3 effectuation of management policies and practices. No employee
4 may be considered a "managerial employee" because he or she
5 belongs to a classification of employees to whom executive and
6 management functions may be delegated unless the Board finds on
7 the basis of a record of a fact-finding hearing that the
8 employee has actually been delegated executive and management
9 functions on a regular basis. No employee may be considered a
10 "managerial employee" because he or she performs professional
11 duties. In determining an employee's status as a "managerial
12 employee", the Board shall consider the employee's actual job
13 duties and responsibilities and the extent to which the
14 employee has actual authority concerning the overall
15 operations and governance of the employee's office or
16 workplace. An employee of the Cook County States Attorney shall
17 not be considered a "managerial employee" if that employee is
18 not directly responsible for wages, fringe benefits, hours,
19 holidays, vacations, sick leave, or other conditions of
20 employment.
21     (k) "Peace officer" means, for the purposes of this Act
22 only, any persons who have been or are hereafter appointed to a
23 police force, department, or agency and sworn or commissioned
24 to perform police duties, except that the following persons are
25 not included: part-time police officers, special police
26 officers, auxiliary police as defined by Section 3.1-30-20 of

 

 

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1 the Illinois Municipal Code, night watchmen, "merchant
2 police", court security officers as defined by Section 3-6012.1
3 of the Counties Code, temporary employees, traffic guards or
4 wardens, civilian parking meter and parking facilities
5 personnel or other individuals specially appointed to aid or
6 direct traffic at or near schools or public functions or to aid
7 in civil defense or disaster, parking enforcement employees who
8 are not commissioned as peace officers and who are not armed
9 and who are not routinely expected to effect arrests, parking
10 lot attendants, clerks and dispatchers or other civilian
11 employees of a police department who are not routinely expected
12 to effect arrests, or elected officials.
13     (l) "Person" includes one or more individuals, labor
14 organizations, public employees, associations, corporations,
15 legal representatives, trustees, trustees in bankruptcy,
16 receivers, or the State of Illinois or any political
17 subdivision of the State or governing body, but does not
18 include the General Assembly of the State of Illinois or any
19 individual employed by the General Assembly of the State of
20 Illinois.
21     (m) "Professional employee" means any employee engaged in
22 work predominantly intellectual and varied in character rather
23 than routine mental, manual, mechanical or physical work;
24 involving the consistent exercise of discretion and adjustment
25 in its performance; of such a character that the output
26 produced or the result accomplished cannot be standardized in

 

 

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1 relation to a given period of time; and requiring advanced
2 knowledge in a field of science or learning customarily
3 acquired by a prolonged course of specialized intellectual
4 instruction and study in an institution of higher learning or a
5 hospital, as distinguished from a general academic education or
6 from apprenticeship or from training in the performance of
7 routine mental, manual, or physical processes; or any employee
8 who has completed the courses of specialized intellectual
9 instruction and study prescribed in this subsection (m) and is
10 performing related work under the supervision of a professional
11 person to qualify to become a professional employee as defined
12 in this subsection (m).
13     (n) "Public employee" or "employee", for the purposes of
14 this Act, means any individual employed by a public employer,
15 including (i) interns and residents at public hospitals, (ii)
16 as of the effective date of this amendatory Act of the 93rd
17 General Assembly, but not before, personal care attendants and
18 personal assistants working under the Home Services Program
19 under Section 3 of the Disabled Persons Rehabilitation Act,
20 subject to the limitations set forth in this Act and in the
21 Disabled Persons Rehabilitation Act, and (iii) as of the
22 effective date of this amendatory Act of the 94th General
23 Assembly, but not before, child and day care home providers
24 participating in the child care assistance program under
25 Section 9A-11 of the Illinois Public Aid Code, subject to the
26 limitations set forth in this Act and in Section 9A-11 of the

 

 

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1 Illinois Public Aid Code, but excluding all of the following:
2 employees of the General Assembly of the State of Illinois;
3 elected officials; executive heads of a department; members of
4 boards or commissions; the Executive Inspectors General; any
5 special Executive Inspectors General; employees of each Office
6 of an Executive Inspector General; commissioners and employees
7 of the Executive Ethics Commission; the Auditor General's
8 Inspector General; employees of the Office of the Auditor
9 General's Inspector General; the Legislative Inspector
10 General; any special Legislative Inspectors General; employees
11 of the Office of the Legislative Inspector General;
12 commissioners and employees of the Legislative Ethics
13 Commission; employees of any agency, board or commission
14 created by this Act; employees appointed to State positions of
15 a temporary or emergency nature; all employees of school
16 districts and higher education institutions except
17 firefighters and peace officers employed by a state university;
18 managerial employees; short-term employees; confidential
19 employees; independent contractors; and supervisors except as
20 provided in this Act.
21     Personal care attendants and personal assistants shall not
22 be considered public employees for any purposes not
23 specifically provided for in the amendatory Act of the 93rd
24 General Assembly, including but not limited to, purposes of
25 vicarious liability in tort and purposes of statutory
26 retirement or health insurance benefits. Personal care

 

 

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1 attendants and personal assistants shall not be covered by the
2 State Employees Group Insurance Act of 1971 (5 ILCS 375/).
3     Child and day care home providers shall not be considered
4 public employees for any purposes not specifically provided for
5 in this amendatory Act of the 94th General Assembly, including
6 but not limited to, purposes of vicarious liability in tort and
7 purposes of statutory retirement or health insurance benefits.
8 Child and day care home providers shall not be covered by the
9 State Employees Group Insurance Act of 1971.
10     Notwithstanding Section 9, subsection (c), or any other
11 provisions of this Act, all peace officers above the rank of
12 captain in municipalities with more than 1,000,000 inhabitants
13 shall be excluded from this Act.
14     (o) Except as otherwise in subsection (o-5), "public
15 employer" or "employer" means the State of Illinois; any
16 political subdivision of the State, unit of local government or
17 school district; authorities including departments, divisions,
18 bureaus, boards, commissions, or other agencies of the
19 foregoing entities; and any person acting within the scope of
20 his or her authority, express or implied, on behalf of those
21 entities in dealing with its employees. As of the effective
22 date of the amendatory Act of the 93rd General Assembly, but
23 not before, the State of Illinois shall be considered the
24 employer of the personal care attendants and personal
25 assistants working under the Home Services Program under
26 Section 3 of the Disabled Persons Rehabilitation Act, subject

 

 

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1 to the limitations set forth in this Act and in the Disabled
2 Persons Rehabilitation Act. The State shall not be considered
3 to be the employer of personal care attendants and personal
4 assistants for any purposes not specifically provided for in
5 this amendatory Act of the 93rd General Assembly, including but
6 not limited to, purposes of vicarious liability in tort and
7 purposes of statutory retirement or health insurance benefits.
8 Personal care attendants and personal assistants shall not be
9 covered by the State Employees Group Insurance Act of 1971 (5
10 ILCS 375/). As of the effective date of this amendatory Act of
11 the 94th General Assembly but not before, the State of Illinois
12 shall be considered the employer of the day and child care home
13 providers participating in the child care assistance program
14 under Section 9A-11 of the Illinois Public Aid Code, subject to
15 the limitations set forth in this Act and in Section 9A-11 of
16 the Illinois Public Aid Code. The State shall not be considered
17 to be the employer of child and day care home providers for any
18 purposes not specifically provided for in this amendatory Act
19 of the 94th General Assembly, including but not limited to,
20 purposes of vicarious liability in tort and purposes of
21 statutory retirement or health insurance benefits. Child and
22 day care home providers shall not be covered by the State
23 Employees Group Insurance Act of 1971.
24     "Public employer" or "employer" as used in this Act,
25 however, does not mean and shall not include the General
26 Assembly of the State of Illinois, the Executive Ethics

 

 

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1 Commission, the Offices of the Executive Inspectors General,
2 the Legislative Ethics Commission, the Office of the
3 Legislative Inspector General, the Office of the Auditor
4 General's Inspector General, and educational employers or
5 employers as defined in the Illinois Educational Labor
6 Relations Act, except with respect to a state university in its
7 employment of firefighters and peace officers. County boards
8 and county sheriffs shall be designated as joint or
9 co-employers of county peace officers appointed under the
10 authority of a county sheriff. Nothing in this subsection (o)
11 shall be construed to prevent the State Panel or the Local
12 Panel from determining that employers are joint or
13 co-employers.
14     (o-5) With respect to wages, fringe benefits, hours,
15 holidays, vacations, proficiency examinations, sick leave, and
16 other conditions of employment, the public employer of public
17 employees who are court reporters, as defined in the Court
18 Reporters Act, shall be determined as follows:
19         (1) For court reporters employed by the Cook County
20     Judicial Circuit, the chief judge of the Cook County
21     Circuit Court is the public employer and employer
22     representative.
23         (2) For court reporters employed by the 12th, 18th,
24     19th, and, on and after December 4, 2006, the 22nd judicial
25     circuits, a group consisting of the chief judges of those
26     circuits, acting jointly by majority vote, is the public

 

 

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1     employer and employer representative.
2         (3) For court reporters employed by all other judicial
3     circuits, a group consisting of the chief judges of those
4     circuits, acting jointly by majority vote, is the public
5     employer and employer representative.
6     (p) "Security employee" means an employee who is
7 responsible for the supervision and control of inmates at
8 correctional facilities. The term also includes other
9 non-security employees in bargaining units having the majority
10 of employees being responsible for the supervision and control
11 of inmates at correctional facilities.
12     (q) "Short-term employee" means an employee who is employed
13 for less than 2 consecutive calendar quarters during a calendar
14 year and who does not have a reasonable assurance that he or
15 she will be rehired by the same employer for the same service
16 in a subsequent calendar year.
17     (r) "Supervisor" is an employee whose principal work is
18 substantially different from that of his or her subordinates
19 and who has authority, in the interest of the employer, to
20 hire, transfer, suspend, lay off, recall, promote, discharge,
21 direct, reward, or discipline employees, to adjust their
22 grievances, or to effectively recommend any of those actions,
23 if the exercise of that authority is not of a merely routine or
24 clerical nature, but requires the consistent use of independent
25 judgment. Except with respect to police employment, the term
26 "supervisor" includes only those individuals who devote a

 

 

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1 preponderance of their employment time to exercising that
2 authority, State supervisors notwithstanding. In addition, in
3 determining supervisory status in police employment, rank
4 shall not be determinative. The Board shall consider, as
5 evidence of bargaining unit inclusion or exclusion, the common
6 law enforcement policies and relationships between police
7 officer ranks and certification under applicable civil service
8 law, ordinances, personnel codes, or Division 2.1 of Article 10
9 of the Illinois Municipal Code, but these factors shall not be
10 the sole or predominant factors considered by the Board in
11 determining police supervisory status.
12     Notwithstanding the provisions of the preceding paragraph,
13 in determining supervisory status in fire fighter employment,
14 no fire fighter shall be excluded as a supervisor who has
15 established representation rights under Section 9 of this Act.
16 Further, in new fire fighter units, employees shall consist of
17 fire fighters of the rank of company officer and below. If a
18 company officer otherwise qualifies as a supervisor under the
19 preceding paragraph, however, he or she shall not be included
20 in the fire fighter unit. If there is no rank between that of
21 chief and the highest company officer, the employer may
22 designate a position on each shift as a Shift Commander, and
23 the persons occupying those positions shall be supervisors. All
24 other ranks above that of company officer shall be supervisors.
25     (s) (1) "Unit" means a class of jobs or positions that are
26     held by employees whose collective interests may suitably

 

 

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1     be represented by a labor organization for collective
2     bargaining. Except with respect to non-State fire fighters
3     and paramedics employed by fire departments and fire
4     protection districts, non-State peace officers, and peace
5     officers in the Department of State Police, a bargaining
6     unit determined by the Board shall not include both
7     employees and supervisors, or supervisors only, except as
8     provided in paragraph (2) of this subsection (s) and except
9     for bargaining units in existence on July 1, 1984 (the
10     effective date of this Act). With respect to non-State fire
11     fighters and paramedics employed by fire departments and
12     fire protection districts, non-State peace officers, and
13     peace officers in the Department of State Police, a
14     bargaining unit determined by the Board shall not include
15     both supervisors and nonsupervisors, or supervisors only,
16     except as provided in paragraph (2) of this subsection (s)
17     and except for bargaining units in existence on January 1,
18     1986 (the effective date of this amendatory Act of 1985). A
19     bargaining unit determined by the Board to contain peace
20     officers shall contain no employees other than peace
21     officers unless otherwise agreed to by the employer and the
22     labor organization or labor organizations involved.
23     Notwithstanding any other provision of this Act, a
24     bargaining unit, including a historical bargaining unit,
25     containing sworn peace officers of the Department of
26     Natural Resources (formerly designated the Department of

 

 

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1     Conservation) shall contain no employees other than such
2     sworn peace officers upon the effective date of this
3     amendatory Act of 1990 or upon the expiration date of any
4     collective bargaining agreement in effect upon the
5     effective date of this amendatory Act of 1990 covering both
6     such sworn peace officers and other employees.
7         (2) Notwithstanding the exclusion of supervisors from
8     bargaining units as provided in paragraph (1) of this
9     subsection (s), a public employer may agree to permit its
10     supervisory employees to form bargaining units and may
11     bargain with those units. This Act shall apply if the
12     public employer chooses to bargain under this subsection.
13         (3) Public employees who are court reporters, as
14     defined in the Court Reporters Act, shall be divided into 3
15     units for collective bargaining purposes. One unit shall be
16     court reporters employed by the Cook County Judicial
17     Circuit; one unit shall be court reporters employed by the
18     12th, 18th, 19th, and, on and after December 4, 2006, the
19     22nd judicial circuits; and one unit shall be court
20     reporters employed by all other judicial circuits.
21 (Source: P.A. 93-204, eff. 7-16-03; 93-617, eff. 12-9-03;
22 94-98, eff. 7-1-05; 94-320, eff. 1-1-06; revised 8-19-05.)
 
23     Section 99. Effective date. This Act takes effect upon
24 becoming law.