What you need to know about giving unions special treatment in Illinois’ constitution

Mailee Smith

Staff Attorney and Director of Labor Policy

Mailee Smith
/ Labor
October 13, 2021

What you need to know about giving unions special treatment in Illinois’ constitution

If passed by voters in November 2022, an amendment to the Illinois Constitution would allow collective bargaining agreements to override state law forever. That gives more power to union bosses than to state lawmakers – and voters.

State lawmakers this spring decided to ask voters to pass Amendment 1, a proposal to change the Illinois Constitution and increase government union powers. Voters will determine its fate on Nov. 8, 2022.

It is being dubbed a “workers’ rights amendment,” banning right-to-work – but there’s a lot more to Amendment 1 than that simplistic description lets on.

In fact, there are four parts of the amendment:

(1) Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing (2) for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. (3) No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, (4) including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment. (Numbering added).

The right-to-work portion doesn’t come until the very end.

Examined one-by-one, these elements show the amendment is much broader than proponents claim. It would give the state’s government union leaders more power than even state lawmakers could possess.

Here is what’s inside when you take apart Amendment 1:

(1) Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing…

What it says:

  • This amendment applies to anyone who is an “employee” within the state of Illinois.
  • The amendment creates a “fundamental right” to organize and bargain through a union.

What it means:

  • This language is incredibly broad, and there is no wording in the amendment to limit its application. On its face, it doesn’t matter if the “employee” works for a government unit, for a private company or even for an individual person. It broadly applies to all “employees.” Its coverage of private-sector employees is in conflict with the National Labor Relations Act.
  • Taken to its logical end, there is no limit on who could unionize. Arguably, lawmakers and legislative liaisons might be able to unionize, as they are paid “employees” of the state. Current laws defining “employee” that exclude various positions may be interpreted as interfering with those employees’ right to organize and bargain (see part 3) and would certainly require a judge’s opinion.
  • This right to unionize and bargain is given the same status as the freedoms of speech and religion.

(2) … for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work.

What it says:

  • Employees are guaranteed the right to bargain over wages, hours, working conditions, economic welfare and safety at work.

What it means:

  • None of these subjects of bargaining are defined or limited, allowing unions to bargain over a virtually limitless array of subjects.
  • Unions could claim just about anything relates to these broad terms.
  • For example, the Chicago Teachers Union, which has attempted to bargain over issues such as defunding the police and rent amendment, could attempt to claim a constitutional right to bargain over those and other extraneous subjects. Where in the past Chicago Public Schools could have said it does not have to bargain over such subjects, its right to refuse to bargain would be in question were the amendment to pass. Again, a judge would need to clarify.
  • What’s more, bargaining over more subjects can take longer and allows room for more disagreement – and therefore more opportunities for a union to go on strike and interfere with the day-to-day lives of Illinois’ nearly 13 million.

(3) No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety…

What it says:

  • No law can be passed that interferes with the right to organize.
  • No law can be passed that interferes with the right to bargain.
  • No law can be passed that interferes with bargaining over the following subjects: wages, hours, other terms and conditions of employment and workplace safety – i.e., virtually anything.

What it means:

  • Lawmakers’ hands will be tied; they will be unable to pass any legislation that restricts organizing or bargaining because the provisions would interfere with the “fundamental right” in the amendment.
  • Lawmakers will not be able to narrow the term “employee” because it would interfere with any excluded employees’ right to organize. Current laws that exclude various types of public employees from collective bargaining, such as managerial employees and elected officials, may violate the constitution and would potentially lead to litigation.
  • Lawmakers will not be able to narrow the subjects over which unions can bargain. For example, lawmakers will not be able to pass legislation excluding investigation and disciplinary processes from police contracts, because that would interfere with police department employees’ right to bargain over terms and conditions of employment. The same goes for other types of employees and provisions.
  • Lawmakers will not be able to limit employees’ ability to strike, because it would interfere with the right to bargain and organize. It is currently a “right” for many public employees in Illinois, and lawmakers will be prohibited from changing that, despite the fact that all of our neighboring states prohibit strikes by all or most public-sector workers.
  • Lawmakers will not be able to amend the current labor provision that allows collective bargaining agreements of public-sector unions to override conflicting laws, because that would interfere with the right to create those contracts through bargaining. What’s more, other contracts not currently covered by that provision will now carry the weight of the constitution, making them also more powerful than state law.

(4) … including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.

What it says:

  • Lawmakers are forbidden from passing laws that prohibit a union membership requirement.

What it means:

  • Right-to-work will be banned in Illinois, departing from the majority of other states and most of Illinois’ neighbors.
  • Private sector workers in unionized workplaces will be perpetually denied the right to decide for themselves whether to pay dues or fees to a union.
  • While the wording is not limited to private-sector employees, it will be inapplicable to – and in fact unconstitutional in regard to – workers in the public sector because the U.S. Supreme Court’s decision in Janus v. AFSCME reestablished the right of public employees to choose not to pay dues or fees to public-sector unions.

Putting it all together

Dividing the amendment into its parts reveals how broad the amendment really is.

Taken together, these provisions could grant more power to unions than to lawmakers in the state of Illinois:

  • Unions could override other laws by writing conflicting provisions into their contracts. Lawmakers could never change that.
  • Unions could demand negotiations over those provisions, because the amendment guarantees virtually limitless subjects of bargaining. Lawmakers could never change that.
  • Unions could go on strike to force government units to agree to those provisions. Lawmakers could never change that.

This amendment would hand over more power to unaccountable union leaders than elected state lawmakers possess. Guaranteeing union powers through a constitutional protection no other special interest group possesses would guarantee voters’ voices would weaken, and Illinois voters already have problems being heard in Springfield.

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