Chicago Teachers Union’s threatened April 1 strike date isn’t legal

Jeffrey Schwab

Jeffrey Schwab is a senior attorney with the Liberty Justice Center.

Jeffrey Schwab
March 3, 2016

Chicago Teachers Union’s threatened April 1 strike date isn’t legal

The Chicago Teachers Union has threatened to strike as early as April 1 over Chicago Public Schools’ announced plan to stop paying a portion of teachers’ required contributions to their pension fund. Under Illinois labor law, however, CTU cannot legally strike before mid- to late-May.

On Feb. 29, the Chicago Teachers Union, or CTU, threatened to strike as soon as April 1 if Chicago Public Schools, or CPS, ends “pension pickups” – the practice through which CPS pays most of the amount teachers are required to contribute toward their pensions. But can CTU members strike – legally – so soon? Illinois law says they cannot.

CPS CEO Forrest Claypool said CPS gave CTU 30 days’ notice in early February, as required by the CTU contract, that the district planned to cancel the 7 percent pension pickups CPS has been making on behalf of teachers since 1981. Public school teachers in Chicago are legally required to pay 9 percent of their salaries toward their own pensions, but actually only pay 2 percent, with CPS picking up the balance.

CTU Vice President Jesse Sharkey responded that if CPS goes through with the cancelation of the pension pickup, CTU will “prepare for an unfair labor practice strike on April 1,” according to WTTW’s “Chicago Tonight.”

But under state law, CTU cannot strike on April 1 in response to CPS’ canceling its pension pickup. CTU lawyer Robert Bloch said that the National Labor Relations Act allows employees to lawfully strike over unfair labor practices as a way to induce the employer to stop committing them, according to the Chicago Sun-Times. On this claim, however, Bloch is almost certainly wrong, as the National Labor Relations Act does not cover local-government employees, such as Chicago public school teachers.

The relationship between CPS and CTU is governed by the Illinois Educational Labor Relations Act, or ELRA. Nothing in the ELRA authorizes CTU to strike in response to an unfair labor practice by CPS. Rather, the ELRA provides a procedure by which CTU must file a charge with the Illinois Educational Labor Relations Board asserting that CPS has committed an unfair labor practice.

Once a charge is filed, the board investigates the charge, and, if it finds the charge may have merit, issues a complaint and holds a hearing, giving the parties at least five days’ notice. After the hearing, the board may issue an order requiring the party that has committed the unfair labor practice to stop, and may even award back pay with interest.

Thus, if CTU thinks that CPS has committed an unfair labor practice by canceling the 7 percent pension pickup, it can file a charge with the board. What CTU does not have the ability to do is strike simply because it believes that CPS has committed an unfair labor practice.

Whether canceling the 7 percent pension pickup is indeed an unfair labor practice is another disputed question. Nothing in the ELRA explicitly addresses this situation. The question of whether canceling the pension pickup is an unfair labor practice may come down to whether doing so constitutes “[r]efusing to bargain collectively in good faith.” However, the ELRA states that “if an alleged unfair labor practice involves interpretation or application of the terms of a collective bargaining agreement and said agreement contains a grievance and arbitration procedure,” then the board may defer to that procedure.

While it is not entirely certain whether canceling the pension pickup constitutes an unfair labor practice under the ELRA, the procedure that CTU must follow before it strikes is clear.

Under Illinois law, if “after a reasonable period of mediation” the parties cannot reach an agreement, one party can request a “fact finding” by a three-member panel selected by both sides. Once one party submits its demand for fact finding, the parties have three days to agree to the three members for the panel. The panel can hold hearings on these issues and attempt to mediate the disputes of the parties.

If CPS and CTU do not resolve the dispute within 75 days after the panel is formed, the panel will privately issue to the parties findings of fact and recommended terms of settlement on all disputed issues, including the rationale for each recommendation. Either party may reject the panel’s proposal within 15 days. If either party does so, the panel’s report becomes public.

In order to strike, teachers must wait until 30 days after the panel’s report has been made public, hold a vote in which 75 percent of the teachers vote to strike, and give 10 days’ notice to CPS before the strike. If the union strikes without first following these steps, then CTU itself would commit an “unfair labor practice” for its “refusal to bargain in good faith.”

The parties met with a fact finder in February after CTU rejected a four-year contract offer from CPS in early February. At the time, CTU President Karen Lewis stated that a strike would not happen before mid-May. Lewis’ estimate at the time seems correct, as CTU cannot strike until approximately four months from the time fact-finding begins. If fact-finding began in early February, the earliest that CTU could strike would be around mid-to-late May.

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