A state appeals panel has locked down Chicago police unions’ challenge to the city’s authority to mandate officers take the Covid vaccine, or risk losing their jobs.
Chicago City Hall and Fraternal Order of Police Chicago Lodge No. 7 have been in court since Oct. 20, 2021, when the police union sued the city over Mayor Lori Lightfoot’s order that all municipal employees, including those represented by unions, like police officers and firefighters, receive a full dose of a Covid vaccine by the end of the year, or face discipline, up to and including termination. Three Policemen’s Benevolent and Protective Association of Illinois units also are plaintiffs, those representing sergeants, lieutenants and captains.
On Nov. 1, 2021, Cook County Judge Raymond Mitchell issued an order requiring the city to bargain with the unions over the mandate and staying its Dec. 31 enforcement. After an arbitrator ruled in favor of the city in February, finding the mandate was a permitted exercise of management rights, the unions asked Mitchell to vacate that finding. He also sided with the city, prompting the unions’ appeal to the First District Appellate Court.
Illinois First DIstrict Appellate Justice Mary Mikva
| Illinoiscourts.gov
Justice Mary Mikva wrote the panel’s decision, issued Nov. 4; Justices Sharon Johnson and Sanjay Tailor concurred. The order was issued under Supreme Court Rule 23, which may restrict its use as precedent.
According to Mikva, while Judge Mitchell denied the unions’ motions to vacate the arbitrator’s award, he declined to rule on the city’s motion to dismiss the complaint. He later denied a motion to stay his order or extend a temporary restraining order.
In arguing against the unions’ appeal, the city said the claims belong before the Illinois Labor Relations Board, since the unions want to invalidate an agreement that is based on policies established under the Illinois Public Labor Relations Act . But the panel said that law doesn’t provide exclusive jurisdiction and circuit court judges can properly consider public policy challenges to arbitration awards.
The panel further explained courts can “refuse to enforce any contract where the contract, as enforced, would violate law or public policy.” When courts have reached that conclusion, Mikva continued, the analysis focused on whether the policy in question embodied a fundamental state interest.
Mikva said the arbitrator determined “implementation of the city’s vaccination policy was an exercise of the city’s contractually recognized management rights provided for in” the unions’ collective bargaining agreements. But the unions insisted that finding violates their right to bargain before implementation, to not be subject to unilateral changes and to take impasses to arbitration. They also said such rights can’t be waived through a union contract absent “clear, unmistakable and unequivocal language providing for the waiver.”
Finally, the union said it’s a well-established public policy that “a public employer may not prevent peace officers from performing services in the context of a labor dispute subject to interest arbitration,” but Mikva said none of the policies the unions invoked were enough to vacate the arbitration award.
The panel said the union’s first argument relied on instances of the Labor Board finding public employers improperly implemented a decision or policy without bargaining. But asserting the arbitrator’s finding was erroneous doesn’t establish “a well-defined or dominant public policy.” Further, Mikva wrote, “there is simply no ‘public policy’ or even any rule of law that requires impasse arbitration where a public employer is exercising a management right.”
Regarding the waiver of rights through a union contract, Mikva said the unions’ “argument is, at best, a claim that the arbitrator made an incorrect legal or factual finding that there was a waiver by the Unions of the right to bargain over the vaccination policy. An error in law or fact by the arbitrator is not the equivalent of a violation of a well-defined and dominant public policy by that arbitrator and therefore is not a basis for overturning an arbitration award.”
The panel said the unions were correct to point out the city policy did prevent police officers from working or being paid, and agreed the Labor Relations Act prohibits strikes or lockouts for security workers, police officers and firefighters. However, Mikva said, implementing the vaccine mandate “was not a lockout in the face of a bargaining impasse.”
Ultimately, the panel said, the unions’ arguments essentially contend the arbitrator misinterpreted their contracts because similar disputes reached different conclusions before the Labor Relations Board, which “is not a proper argument for an appeal from an arbitration award.”