Professor Gerald Berendt, who teaches labor law, has been a member of the Illinois Education Labor Relations Board since June 1986. He was first appointed to an unexpired four-year term by Gov. Jim Thompson, and was reappointed by him in 1990 to a second four-year term. In 1994 Berendt was appointed to a six-year term by Gov. Jim Edgar as the Democrat on the three-member board. Berendt has the longest continuous service on the board.
The John Marshall Law School: When was this board established, and for what purpose?
Professor Gerald Berendt: The Illinois Educational Labor Relations Act (IELRA) of 1984 gave collective bargaining rights to teachers and other educational employees in the public sector in Illinois. The IELRA has special provisions designed to reflect the realities of public education, a system designated to minimize the possibility of strikes.
Prior to passage of this law, there were on average 25 strikes a year in public education in Illinois, but it wasn’t uncommon to have as many as 40. Since the passage of the Educational Labor Relations Act, the number of annual strikes has gone down markedly, to the point where we’ve only had four this year. Last year we had five, and the year before that we had six. Compared to what was going on in 1983, the year before we passed the law, that’s just a
tremendous reduction.
JMLS: What type of complaints are you getting and how does the Educational Labor Relations Act offset the possibility of a strike?
Professor Berendt: A party who believes the other side isn’t bargaining in good faith or is otherwise
committing an unfair labor practice can file a charge which the Educational Labor Relations Board will investigate.
Frequently during the investigatory process the parties will settle their dispute. It gives them a forum to talk and work out their differences. Thus, they don’t have to resort to self-help in the form of a strike as much as they did in previous years. In addition, even if they don’t work out their differences in the investigation process, the case will go to a hearing before an administrative law judge. We have very highly qualified, impartial administrative law judges who will then decide whether an unfair labor practice has been committed, and if so, they provide for a remedy. That allows the parties to use the judicial-type process we offer instead of having to coerce each other. It relieves a lot of the tension and pressure compared to years past when disputes could lead to strikes.
In addition the Educational Labor Relations Board conducts elections. A union, for example, can file a petition asking to represent teachers at a particular school. We verify a “showing of interest” through authorization cards that the union already has support of at least 30% of the teachers who would be eligible to vote. The Educational Labor Relations Board runs the election, counts the votes and certifies the results. If the union wins, the employer (the school district), has a bargaining obligation. If the union loses, we certify the results and the employer gets a year free from any kind of organizing activity. The union always can come back in the future.
JMLS: Consider a typical complaint and estimate how long it will take to get through your system versus what happened previously?
Professor Berendt: We have a 45-day target to complete an investigation of a charge, and we generally meet that target. Previously there was no system, unless the parties volunteered to hire someone, like the American Arbitration Association, to help find a solution. But one of the peculiarities of the law prior to 1984 was that even if there was a collective bargaining agreement (a labor contract) between a school district and a labor union, the school district didn’t always have to observe the arbitration part of the contract. The Illinois courts had held that for many purposes those arbitration agreements were not enforceable, so the unions used to call the bargaining prior to 1984 “collective begging” as opposed to collective bargaining. Even if they negotiated a contract with an arbitration clause they never knew whether the school district would comply with it.
But since 1984, the statute provides for mandatory collective bargaining if there’s a union, and the collective bargaining agreement is enforceable. So in addition to any arbitration clause being enforced by the Educational Labor Relations Board, if there is an unfair labor practice, the parties have someone to go to now and they’re bound by our decisions.
If a party doesn’t comply with one of our decisions, then we can go into court and seek enforcement against that party. And remember, although most people think that we deal in the business of employer unfair labor practices, we frequently get union unfair labor practices as well. There are times when the school district comes to us and files charges against the union.
JMLS: Are you getting complaints from throughout the state?
Professor Berendt: Absolutely. There were four strikes this year and there were some charges filed in those strikes. One was in Niles, another in Illini Bluff, and the other two were further down state. We’ve had important cases out of Hardin County, out of Brown County which are far south. Every county in the state has schools and many of them have labor issues that come to us.
JMLS: As a professor at The John Marshall Law School, your area of expertise is labor relations. Having looked at other labor options, what is the feedback to this approach?
Professor Berendt: I think almost everyone, whether they’re management or labor, will agree that we’ve been much better off with the Illinois Educational Labor Relations Act. The statistics alone bear that out. Before there was such a law, there were many, many more strikes than the state should have had. Since the law passed, there have been far fewer. That alone is an endorsement of the law.
JMLS: Schools are beginning to change their management styles. Several have moved to team management approaches. Will these changes mean future changes for the law?
Professor Berendt: The abandonment of the hierarchical scheme is popular these days, not just in public education where I think it is particularly appropriate to abandon the hierarchical scheme, but also in the private sector, and that has caused some problems with the National Labor Relations Board. Many of these laws are based on an assumption that the relationship between the employees and their union on the one side, and the employer on the other, is adversarial.
With the development of these new types of team management concepts, we may have to re-evaluate the application of these adversarial models and come up with models that are more participatory. That’s not unheard of in public education. There is a model for collective bargaining that has been in place for at least 15 years, that is called win-win, and allows parties to sit across the table from each other and thrash out their differences in a more cooperative fashion.
Committees are appointed of teachers, board members, union leaders, superintendents, assistant superintendents, principals and the fiscal officers to work out the provisions in a collegial manner. It’s a participatory, cooperative model, and that type of model is not unknown in Illinois. Evanston schools have famously used win-win.
The Illinois Educational Labor Relations Act has been amended from time to time. The most significant amendment in recent years was to take away the right to strike by Chicago Board of Education employees for 18 months. Another substantial amendment at the same time removed from mandatory collective bargaining a number of topics that were previously negotiated in Chicago and at the community college level in Chicago. School calendars and reductions-in-force are no longer subject to mandatory bargaining. I don’t think it will be necessary for the statute to be amended to allow for the kind of participatory systems that we’ve been talking about because the statute is written broadly enough to allow for it.