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Pro-labor, anti-employer 'replacement worker' law effective Jan. 1
By KERRY L. SMITH

   Several pro-labor, anti-employer laws that eased their way through passage during the Illinois Assembly's 93rd session are already hampering Illinois employers.

   Michael Walters, executive director of the Southwestern Illinois Employers' Association, said an "anti-employer" law that passed in Springfield at the session's close - one that is effective Jan. 1 and is already being challenged in the courts - is Senate Bill 90, also known as the Strikebreakers Act.

   The latest version of the law amends the Employment of Strikebreakers Act, he said. The law, which Blagojevich signed in late July, states that no person may knowingly contract with a day and temporary labor service agency to replace an employee during a strike or lockout.

   "This legislation, also known as the Replacement Act, takes away all negotiation powers for businesses. It gives all the power to the unions and none to the employers. This one is already being challenged in courts," Walters said.

   For years, the Illinois' Strikebreakers Act prohibited employers from hiring a "professional strikebreaker" - defined by the Illinois Assembly as "any person who repeatedly and habitually offers himself for employment on a temporary basis, where a lockout or strike exists, to take the place of an employee whose work has ceased as a direct consequence of such lockout or strike."

   But now, the expanded version of this law prohibits employers from hiring any individuals referred from a temporary employment service, according to Thomas E. Berry, Jr., partner in the law firm of McMahon, Berger, Hanna, Linihan, Cody & McCarthy.

   "For example, a grocery store whose workers have gone on strike is no longer able to hire temporary replacements via any third party, such as an employment service," he said.

   The federal government's view, historically from a labor policy perspective, Berry said, is to let the free market - not the government - resolve these situations.

   Caterpillar Inc. has already filed a lawsuit in U.S. District Court in Peoria to protest the latest version of the state's Replacement Act legislation. Berry said a number of the company's union contracts are up in early 2004.

   Another piece of legislation, House Bill 3396, which has been in effect since Gov. Rod Blagojevich signed it into law Aug. 5 (Public Act 93-0444), amends the Illinois Public Labor Relations Act and the Illinois Educational Labor Relations Act.

   The crux of the amended language is this: public and education-specific employers in Illinois no longer have the secret ballot-style election as a means of assembling or disassembling a union comprised of some of their employees.

   "Even federal law still requires an election before a union is regarded and certified as being the exclusive bargaining unit," said Berry. "Before this law took effect in August, a union would have had to prove at least 30 percent of that workforce wanted to be represented by a union. If the employer didn't want to be represented, he could schedule a secret ballot election."

   Prior to the passage of this law, Berry said, both sides - union and management - could lobby the employee as to whether or not he wanted to become part of a union specific to his trade.

   An element of irony exists, he said, in that private employers are still governed by federal law - law that states the secret ballot method still applies. But for public employers in Illinois, this law signed by the governor (and sponsored by state representatives and senators not from Southwestern Illinois) trumps federal law.

   An example of where the new state legislation could hamper both public and private employers would be an instance in which a privately held company buys a publicly owned firm or an educational institution, Berry said. The new owner, although privately held, will have to abide by Public Act 93-0444, having to go through a comprehensive desertification process in order to disband any of the unions that were in effect at the time of the buyout.

   "Gov. Blagojevich appears to be signing legislation that makes the process more expedient for the unions," Berry said. "The irony is that this is actually not a (two-sided) desertification process. If we're trying to be expedient, wouldn't the process work both ways? Democracy - via the employees' secret ballot provision - has been eliminated under the guise of expediency."