dissenting:
Promotion procedures are important both to unions and to employers. If an employer is allowed to promote only antiunion employees, the survival of the union may be threatened. On the other hand, if the union controls promotions, the union might end up running the company, destroying any pretense of managerial authority. The solution has been to provide a legislative middle ground of neutral promotion procedures. Leaving promotion procedures to mandatory collective bargaining may not be a solution; if an impasse is reached and the matter is resolved by an arbitrator, the employer may still lose important rights without its agreement. Promotions at all levels are important to employers, but promotions to supervisory positions are particularly important. See Department of Central Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 83, 662 N.E.2d 131, 134 (1996) (noting the concern that prounion bias might impair a supervisor’s ability to apply the employer’s policies).
Along these lines, the Promotion Act (2003 Promotion Act) set minimum standards for promotion procedures. The 2003 Promotion Act was a comprehensive restatement of fire department promotional procedures. It followed and to some extent modified provisions set out in the Board of Fire and Police Commissioners Division of the Illinois Municipal Code. Ill. Rev. Stat. 1989, ch. 24, pars. 10 — 2.1—1 through 10 — 2.1—30. It followed the First District’s decision in Village of Franklin Park, 265 Ill. App. 3d 997, 638 N.E.2d 1144, which had endorsed a decision of the Board. Under the 2003 Promotion Act, eligibility requirements shall be published a year in advance and all members shall be given an equal opportunity. 50 ILCS 742/15(b) (West 2004). The employer shall prepare a promotion list and a person’s position on that list shall be determined by certain listed factors. 50 ILCS 742/20(a), (b) (West 2004). Appointments shall be made in accordance with rankings on the list, with the employer having the right to pass over a person in some circumstances. 50 ILCS 742/20(d) (West 2004). The Union may select impartial persons as observers. 50 ILCS 742/25(b) (West 2004). The weight given to any test component may be set at the discretion of the employer. 50 ILCS 742/30 (West 2004). Test questions and materials must be pertinent. 50 ILCS 742/35(a) (West 2004). Examinees have the right to obtain their scores immediately and review their answers. 50 ILCS 742/35(b) (West 2004). No employer personnel may see the questions before the examination. 50 ILCS 742/35(c) (West 2004). The basis for ascertained merit points shall be published in advance and all persons given an equal opportunity. 50 ILCS 742/45(a) (West 2004). Subjective evaluation components shall be identified to all candidates prior to application, be job-related, and be applied uniformly. 50 ILCS 742/50(b) (West 2004).
It may be a mistake to describe these standards as “minimum standards.” “Default standards” may be a better phrase. The standards are not set in stone and can be changed if the union and the employer choose to do so. They do not set a limit beyond which the parties cannot go. The 2003 Promotion Act provided:
“(d) This Act is intended to serve as a minimum standard and shall be construed to authorize and not to limit:
(2) The negotiation by an employer and an exclusive bargaining representative of clauses within a collective[-]bargaining agreement relating to conditions, criteria, or procedures for the promotion of employees who are members of bargaining units.” 50 ILCS 742/10(d)(2) (West 2004).
See also 50 ILCS 742/30 (West 2004) (weight of test components shall be subject to modification by negotiations between employer and union).
The 2003 Promotion Act was addressed in the Board’s 2005 decision in Village of Libertyville. In that case, the Union sought mandatory bargaining over its proposal to depart from the 2003 Promotion Act regarding promotions to the nonbargaining unit position of lieutenant. The ALJ recognized that the parties could depart from the minimum standards but rejected the argument that the 2003 Promotion Act required mandatory bargaining, concluding that the 2003 Promotion Act “simply establishes that employers are to abide by the minimum requirements set forth in the [Promotion Act] and permits parties to bargain over procedures relating to promotions.” Village of Libertyville, 21 Pub. Employee Rep. (Ill.) par. 211, No. S — CA—05— 045, at 767 (Illinois Labor Board, State Panel, ALJ recommended decision and order April 4, 2005) (hereinafter Libertyville (ALJ recommended decision)). The ALJ found it significant that the legislature did not use the term “mandatory” when it referred to negotiation in section 10(d)(2) (50 ILCS 742/10(d)(2) (West 2004)). Libertyville (ALJ recommended decision), 21 Pub. Employee Rep. (Ill.) par. 211, at 767. In a surprising decision however, the Board, one member dissenting, reversed the decision of the ALJ, concluding that its decision was required by the 2003 Promotion Act:
“[T]he legislature pointedly included language providing that the [2003 Promotion Act’s] terms shall serve as a minimum standard and directed bodies interpreting that language that its terms should be construed to authorize and not limit bargaining over promotions, which include promotion to non[ ]unit titles. In our view, there is no other way to read this language other than requiring, or, in other words, not limiting in any way, that parties bargain over promotions to non[ bargaining unit titles that are immediately above the highest unit rank.” Libertyville, (ALJ recommended decision), 21 Pub. Employee Rep. (Ill.) par. 211, at 763.
The words “not limit” must be.read as “requiring”? The 2003 Promotion Act would be “meaningless” unless it mandates bargaining over promotions to nonunit titles? The decision was appealed, but unfortunately the case was settled before the appellate court could address it. The majority asserts that the 2003 Promotion Act overruled Franklin Park. 373 Ill. App. 3d at 608. The 2003 Promotion Act did not overrule Franklin Park. Franklin Park was “overruled” by the Board’s decision in Libertyville. Our present case is the first opportunity for a court to review the Board’s decision in Libertyville.
Franklin Park is noted for its emphatic rejection of the argument that predecessor statutes imposed a duty on the employer to bargain over promotion criteria for nonunit employees. “That captains are not members of the bargaining unit controls analysis of the argument. *** The Union does not represent captains.” Franklin Park, 265 Ill. App. 3d at 1005, 638 N.E.2d at 1149. Also significant, however, is its rejection of the employer’s appeal. The employer had argued that even where negotiation was required, the parties could not negotiate below the minimum standards established by the legislature. For example, the employer argued that the union’s proposal that the highest-ranking candidate be promoted violated the provision of the Municipal Code that “[a]ll promotions shall be made from the 3 having the highest rating.” Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—15. The court rejected the argument, concluding those provisions shall not be construed as “limiting” the duty to bargain collectively. Franklin Park, 265 Ill. App. 3d at 1006, 638 N.E.2d at 1149. That conclusion related to employees in the bargaining unit, where bargaining was mandatory. If the court had been dealing with an area of permissive bargaining, nonunit employees, it would have said “such other law shall not be construed as limiting the duty to bargain permissively.” In the 2003 Promotion Act the word “limit” is again used to say that the minimum standards are not controlling. 50 ILCS 742/10(d) (West 2004). The word does not address what form of bargaining is required to go beyond the minimum standards.
The argument is made that the definition of the word “promotion” in the 2003 Promotion Act to include advancement to a rank “that is the next rank immediately above the highest rank included within a bargaining unit” (50 ILCS 742/5 (West 2004)) overturned Franklin Park. 373 Ill. App. 3d at 609.1 do not see that to be the case. The Municipal Code standards applicable to fire and police departments, considered in Franklin Park, did not appear to be limited to promotions inside the bargaining unit. See, e.g., Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—15. The 2003 Promotion Act was a comprehensive act setting minimum standards for promotion both inside and to some extent, outside, the bargaining unit. The 2003 Promotion Act expressed no intention to overturn the long-standing rule that there was no duty to bargain over promotion criteria for employees outside the bargaining unit.
In 2006, perhaps to bolster the Board’s decision in Libertyville, the legislature enacted a specific provision, amending section 10(d)(2) to recognize “[t]he right of an exclusive bargaining representative to require an employer to negotiate clauses within a collective[-]bargaining agreement relating to conditions, criteria, or procedures for the promotion of employees to ranks, as defined in [s]ection 5, covered by this Act.” (Added language underlined/italicized.) Pub. Act 94 — 809, §5, eff. May 26, 2006 (2006 Ill. Legis. Serv. 1494 (West)). The amendment clearly seems to change the meaning of section 10(d)(2), but the majority seizes upon a legislator’s use of the word “clarifies” in his remarks on the floor. The majority’s stretch illustrates the dangers of using the passing remarks of a single legislator to interpret a statute, particularly when those remarks find no support in the language of the statute. The majority’s holding that the 2006 amendment only “clarified” the 2003 Promotion Act is contrary to its holding that the 2006 amendment is not retroactive. “[T]he legislature did not specifically indicate the amendment would apply retroactively ***.” 373 Ill. App. 3d at 603. The majority, however, uses the word “clarified” to make the amendment retroactive.
In the present case, after the passage of the 2003 Promotion Act, hut before the Libertyville decision, the Union asserted that “the City is required to bargain *** over the weights assigned to the various components of the test” and demanded that “we commence formal negotiations over the new Assistant Chief promotional exam.” The Union did not complain that the minimum standards of the 2003 Promotion Act had not been met. Its complaint was that the City refused to bargain. In June 2006, the Board held that the City had committed an unfair labor practice and ordered that the City rescind any promotions to the position of assistant fire chief made after May 21, 2004. Because Libertyville was incorrectly decided, and because promotions outside the bargaining unit were not a subject of mandatory bargaining until the 2006 amendment, I would reverse.