Chicago teachers strike: Illegal under Illinois law?

With the Chicago teacher’s strike entering its third day, both sides appear determined to settle matters behind closed doors and not in a courtroom, even though the city has authority to take the fight there – though at significant political risk, legal experts say.

Although untested in the courts, a provision added to the Illinois Educational Labor Relations Act last year could prohibit teachers from striking on all matters except compensation involving pay and benefits. The walkout, which started Monday, appears to be about a broad range of issues, many of which have little to do with wages.

Chicago Teachers Union representatives have acknowledged that their gripes with the city are not necessarily financial. "What I would say about the economics of this thing is that that isn’t the main issue,” Chicago Teachers Union Vice President Jesse Sharkey told reporters late Sunday.

Indeed Chicago teachers, on average, are paid more than most others in the state, according to a 2012 report by Northern Illinois University in DeKalb. The average public teacher salary in Chicago is $74,236, compared with a state average of $64,978. As of Sunday, the Chicago Public Schools district offered teachers a 16 percent raise over four years. On Sunday, Chicago Teachers Union President Karen Lewis said the offer was “not far apart” from what the union was seeking.

So if the strike is not strictly about compensation, it may be an illegal action according to state law, which even the union recognizes. “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,” the union said in a statement released Sunday.

Representatives from the Chicago Teachers Union would not return requests for comment Wednesday.

Another tool that Chicago Mayor Rahm Emanuel, a Democrat, has at his ready is a provision in state law that says if a teacher strike “is or has become a clear and present danger to the health or safety of the public,” the mayor can seek a court injunction to stop it. However, this option seems unlikely, because the provision does not cover public welfare, which would be more germane for the strike, says Martin Malin, director of the Institute for Law and the Workplace at the Illinois Institute of Chicago.

So far, the city is not pursuing the possible illegality of the strike, but instead is taking its case to the public, describing the union as conducting a “strike of choice.” Sarah Hamilton, communications director for Mayor Emanuel, says his administration’s “focus is getting kids back in the classroom learning from their teachers, and we believe this is best resolved at the negotiating table, not in front of a judge.”

On Tuesday, Emanuel said the two primary issues in the negotiations – teacher evaluations and teacher rehiring – are legally “non-strikeable.”

Emanuel’s comments “may be setting things up, particularly if the strike is lengthy, for him to appeal to the Legislature to further restrict [the union’s] right to strike, perhaps by requiring additional third-party intervention or restricting the subject over which a union may strike,” says Mr. Malin.

It is not uncommon for public-sector workers who defy state rules on strike actions to face the risk of prison time or large fines. More than 200 teachers in Middletown, N.J., were jailed in December 2001 for defying a judge’s back-to-work order after breaking state law. More recently, a transit-workers strike in New York City in December 2005 resulted in a $2.5 million fine for the Transport Workers Union Local 100 and a 10-day jail sentence for its president.

If the teacher strike in Chicago hits the two-week mark, it is likely Emanuel will turn to the courts for a resolution, says Randolph McLaughlin, a labor attorney and professor at Pace University Law School in White Plains, N.Y.

“This can become very serious. The city, to its credit, isn’t pulling that trigger yet. They realize that once you start jailing teachers, battle lines are drawn and there will be no compromise,” Mr. McLaughlin says. However, the longer the strike endures and tests the patience of parents, Emanuel will likely feel emboldened to seek guidance from the courts.

“If this continues for two weeks, the city will ratchet it up to the next level, because pressure from parents will become so severe. That’s the critical issue,” he says.

Unlike strikes in the private sector, public-sector strikes have an added political dimension, which is why both sides are presenting dueling narratives to explain to the public what is at stake.

For Emanuel, the two central issues are teacher evaluations that include measures of student achievement and the authority of principals to hire the teachers they want. The unions are presenting a more complex set of issues: increasing class size, deteriorating school buildings, and job security. They worry that factors like neighborhood violence and family discord will drive down student performance, unfairly penalize teachers, and result in some 6,000 teacher layoffs. They also say teachers who lose their jobs as a result of school closings should be priority hires when open positions are available.

The jockeying for public support, particularly from parents, is common in public-sector labor battles, says William Powell Jones, an associate professor of history specializing in labor issues at the University of Wisconsin in Madison.

“They’re emphasizing things that are more important to each other but are also issues that are seen in the public as sympathetic. The reality is all of these issues are at stake here and it’s complicated by the fact that Rahm Emanuel is a national figure,” Mr. Jones says.

Moreover, it's difficult for the public to grasp what's at issue in the standoff, because the talks are sequestered behind closed doors.

“The problem is that, since this matter is in the midst of a collective bargaining process, both sides spin the story to their advantage. Without access to the actual proposals and responses it is difficult to say what the real issues are,” says McLaughlin, the labor attorney.

What is known is that the strike is being seen in a much broader context about the purpose of public unions and the effectiveness of the reforms levied against them in recent years by legislative majority leaders, particularly Republicans, in neighboring states like Wisconsin, Indiana, and Ohio.

“It’s about the legitimacy of public-sector unions,” says Jones. “These are issues that go far beyond Chicago, and that’s why people are paying attention this strike.”