Written by Paige Kinder
On January 4, 2022, the Chicago Teacher’s Union (CTU) voted with overwhelming support to refuse to work in person as the omicron and delta variants caused coronavirus cases to soar. This decision led the Chicago Public Schools (CPS), the nation’s third largest school district, to cancel classes completely for their 350,000 students as officials claim district-wide remote learning is not an option. CTU has stated they will not return to in-person work until covid cases decline, or Mayor Lori Lightfoot works with the union to establish conditions, which are voted on and approved by the CTU, on how to handle rapidly rising coronavirus cases. However, Mayor Lightfoot and CPS CEO Pedro Martinez have repeatedly reiterated that in person learning is best for students and parents and they will not give in to union pressure.
While negotiations are said to be occurring between the two parties, no progress seems to have been made which lead to frustration amongst the union, city officials, and families of CPS students. This frustration boiled over on January 7, after three days of classes being canceled, when a lawsuit was filed by seven families of CPS students alleging CTU had engaged in an illegal work stoppage. The lawsuit seeks an injunction which would force the teachers to return to school.
Public Sector Unions
Unlike private sector employees, public employees’ right to strike is against the law in thirty-nine states. These laws predominately stem from a strike by nearly all of Boston’s Police force in 1919. This three-day strike caused an increase in criminal acts around the city, which caused the state guard to intervene and fire into a crowd, killing nine and wounding twenty-three.
Following the Boston Strike until the 1960’s, public employers often forbade their employees from joining unions through yellow dog contracts, which allowed the firing of any employee who joined a union. The phrase “yellow dog contract” was meant to show that those who gave up Constitutionally protected rights by refusing to join a union were perceived as cowardly by their peers. The Norris-LaGuardia Act, which was passed in 1932, and the National Labor Relations Act, which was passed in 1935, banned yellow dog contracts for private sector employees, but not public sector. It wasn’t until the 1960’s that the Courts began to rely on the First Amendment to provide protection to public sector unions. In Garrity v. New Jersey and Keyishian v. Board of Regents, the Supreme Court found that public sector employees were guaranteed the same version of constitutional rights as everyone else, and those rights could not be violated because of their jobs.
However, current labor laws still severely limited the rights of public sector employees. Many states laws limit the topics which can be discussed in bargaining, what methods can be used in the case of a bargaining impasse, and if bargaining is even allowed amongst public workers and their employers. The Supreme Court has been mostly silent about the restrictions applied to public sectors workers, including the thirty-nine state laws which prevent strikes.
What does Illinois Law Say?
The governing law for teacher strikes in Illinois is the Illinois Educational Labor Relations Act. Under the Act, an educational employee shall not strike, except under the following conditions: 1) they are represented by an exclusive bargaining representative; 2) mediation has been used without success; 3) at least ten days have elapsed after notice of intent to strike to the employer; 4) the collective bargaining agreement has expired or been terminated; and 5) the employer and union representative have not agreed to send the unresolved issues to arbitration.
Conclusion & Likely Outcome
Under the Illinois law, it is possible, even likely, that a Court could find the CTU’s strike unlawful. However, CTU is no stranger to striking. In 2019, CPS canceled class for eleven days following unsuccessful negotiations on a variety of topics, including working conditions and wages. Additionally, in 2016 teachers walked out of the job over unfair labor practices and in 2012 there was a seven-day strike. Though the Illinois Educational Labor Relations Act was in place during all of the previous strikes, no teachers nor the union faced discipline and the courts never stepped in to enforce the law.
Seth Harris, et al., Modern Labor Law in the Private and Private Sectors (2021).
Garrity v. New Jersey, 385 U.S. 4893 (1967).
Keyishan v. Board of Regents, 385 U.S. 589 (1967).
115 ILCS 5/13 (LexisNexis 1984).
Photo courtesy of WFLA