‘Entire Agreement’ Proposal Not Mandatory For Bargaining

On May 12, 2016, the Village of Skokie and Local 3033 of the International Association of Fire Fighters reached an impasse in bargaining. One of the key issues was the Village’s proposal to maintain the “entire agreement” clause in the contract as mandatory for collective bargaining. The Village and Local 3033 jointly filed a petition with the Illinois Labor Relations Board, seeking a ruling on whether the continuation of the clause was a negotiable topic.

The disputed language provided: “The Village and the Union, for the duration of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject or matter referred to or covered in this Agreement, including the impact of the Village’ s exercise of its rights as set forth herein on wages, hours or terms and conditions of employment…”

The general counsel for the Board found the clause non-negotiable, finding that “the proposal on the Entire Agreement clause is a permissive subject of bargaining because it seeks the Union’s waiver of its right to midterm bargaining over the impacts of the Employer’s exercise of management rights.”

The general counsel reasoned that “a proposal that seeks the waiver of a statutory right is a permissive subject of bargaining. Public employees have the statutory right to midterm bargaining, but that right is not absolute. The right to midterm bargaining applies only to those subjects that are neither fully bargained nor the subject of a clause in a collective bargaining agreement.

“Accordingly, a proposal that forecloses bargaining over unknown or unforeseeable matters (‘broad zipper clause’) waives the right to midterm bargaining. By contrast, a proposal that forecloses bargaining only over subjects that the parties fully negotiated (‘narrow zipper clause’) does not waive the right to midterm bargaining, even if the parties did not include reference to that subject in their agreement.

“Here, the Employer’s proposal is analogous to a broad zipper clause because it forecloses the Union’s right to bargain over unforeseeable matters that arise during the term of the contract, specifically, the impact of the Employer’s exercise of its management rights. The Union cannot know the full impact of the Employer’s exercise of management rights, particularly where those rights are broadly stated. In fact, the impetus for the exercise of those rights may have not yet arisen at the time of bargaining, and the Employer itself may not yet know how it will exercise the rights it reserved.

“The Union’s anticipation of some managerial changes, such as layoffs, and its present decision to bargain over their effects, does not eliminate the uncertainty inherent in the Employer’s exercise of its rights in full. The proposal’s broad foreclosure of bargaining over all impacts of the Employer’s exercise of management rights therefore forecloses bargaining over at least some unforeseeable matters, including matters not referenced by the agreement. Thus, the Employer’s proposal in this case qualifies as a zipper clause that is not clearly narrow and that is therefore a permissive subject of bargaining.

“Notably, the Employer’s proposal remains permissive under this analysis even though the parties anticipate that the Employer’s future exercise of its management rights might raise impacts issues. The parties’ recognition of this self-evident employment reality adds no definition to the Employer’s future managerial changes or the form that its impacts might take. It is this uncertainty that renders the Employer’s proposal a permissive subject of bargaining because the proposal consequently seeks the Union’s waiver of midterm bargaining over some unforeseeable and unknown matters.”

Village of Skokie, 2016 WL 4036275 (Ill. LRB Gen. Coun. 2016).