M. Spencer Green / AP
Chicago Mayor Rahm Emanuel speaks during a news conference at Tarkington School of Excellence in Chicago, Tuesday, Sept. 11, 2012 as Vincent Iturralde, right, principal at at Tarkington listens.
Chicago Mayor Rahm Emanuel said yesterday that he believes the two key issues in the Chicago Teachers Union strike are legally "non-strikeable," the Chicago Sun-Times reported on Tuesday. Of teacher evaluations and the rehiring of fired teachers, he said, "the legal answer is, they’re not allowed to be strikeable on it. Those are the two final issues that we’re dealing with of significance." However, he added he would rather bargain with the union than fight a legal battle against it.
Martin Malin, a professor at Illinois Institute of Technology's Chicago-Kent College of Law, said that such a battle would be "uncharted legal waters." When Lean Forward asked Malin if Emanuel was right and the CTU strike was illegal, he burst out laughing. "There's enough legal ambiguity here to fill a law school final exam," he said. "The answer is maybe. We're dealing with probably uncharted territory here."
"Strikes are legally protected only if they are over mandatory subjects of bargaining," University of Oregon Professor Gordon Lafer, an expert in American labor law, told Lean Forward. Mandatory bargaining subjects vary by state and industry; in Illinois, mandatory bargaining subjects for public school teachers are outlined in the Illinois Educational Labor Relations Act, or IELA. In June of last year, Illinois Governor Pat Quinn approved the law SB7, amending the IELA so that several new bargaining subjects were explicitly labeled "permissive" instead of mandatory.
If certain bargaining subjects are permissive, said Lafer, "they can be part of the negotiations, but one can't strike exclusively over these issues." SB7 made the length of the school day and year permissive [PDF]. Section 4.5 of the IELA stipulates that class size and "[d]ecisions to layoff or reduce in force employees" are also permissive.
"It's important to know that it is very, very common for people to strike over a disagreement that involves more than one issue, where some of the issues are mandatory and some are permissive," said Lafer. "The law says that it is not legal to strike if the strike is only over permissive subjects."
In a terse statement replying to Emanuel, the Chicago Teachers Union said, "The union is not on strike over matters governed exclusively by IELRA Section 4.5 and 12(b)." As previously reported, CTU's demands include stipulations about compensation, benefits, and classroom air conditioning.
"While new Illinois law prohibits us from striking over the recall of laid-off teachers and compensation for a longer school year, we do not intend to sign an agreement until these matters are addressed," said CTU President Karen Lewis in her statement announcing the strike.
Some rank and file CTU members have been open about the fact that their grievances go beyond mandatory bargaining subjects. "The law says we can't negotiate directly on student conditions," Xian Barrett, a Chicago school teacher, told Lean Forward. "But ultimately, to us—not union leadership, they have to comply with those rules—but to us rank and file, that's unconscionable."
In order for Emanuel to take legal action against the union, he would need to file for an unfair labor practice complaint with the Illinois Labor Relations Board. "The labor board would have to decide whether there's enough there to issue a complaint," said Malin. If there is enough for a complaint, the board would then have to decide whether to request an injunction on the union from a circuit court. And even if the circuit court granted the injunction, it wouldn't stop there.
"I would imagine, if a circuit court granted an injunction, the union would immediately file a notice of appeal and an emergency notice to stay the injunction," said Malin.
Ultimately, Malin said, Emanuel would have to consider both the legal and political implications of a court battle. "The mayor is damned if he doesn't, damned if he doesn't," he said. "If he doesn't [file a complaint], he's subject to political attack that he's not doing everything he can to open the schools. If he does, he opens himself to comparisons to the late 19th, early 20th century, when court injunctions were a favored legal tactic to bust unions."
However, Malin thought that the strike could have serious legal implications for the union going beyond just an injunction. "If the current strike turns out to be lengthy and gets messier, I would not be surprised if there's a call for further legislative restrictions on CPS [Chicago Public Schools] employees' right to strike," he said.