A state appeals panel has ruled a labor union can force the city of Chicago to require telecommunications companies to hire union workers to install 5G antennas on city-owned utility poles.
After Chicago officials allowed nonunion contractors to install modern cellular service antennas on light and traffic poles, International Brotherhood of Electrical Workers Local No. 9 filed a grievance alleging a violation of its multiproject labor agreement with the city. An arbitrator ruled in favor of the union. But after the city challenged that ruling, Cook County Circuit Judge Anna Loftus vacated the award in June 2021.
The union appealed Loftus’ decision to the Illinois First District Appellate Court. Justice Raymond Mitchell wrote the panel’s opinion, issued Dec. 30; Justices Mathias Delort and Freddrenna Lyle concurred.
Central to the issue is a 2010 agreement involving the city, IBEW and other labor organizations, incorporated into larger union contracts. The first paragraph of that document stipulates the city won’t contract, subcontract or “permit any other entity to contract or subcontract, any construction, demolition, rehabilitation or renovation work for the project work covered under this agreement or within the trade jurisdiction of the signatory labor organization unless such work is performed by a person, firm or company signatory, willing to become a signatory, to the applicable area-wide collective bargaining agreements with the unions.”
The panel said the question of whether the arbitrator’s decision violated federal labor law rested on whether forcing the city to allow telecommunications companies to access municipal property only if they become union signatories meets the legal definition of regulation. IBEW argued the arbitration award means the city must act like a proprietor or property owner, not a regulator. But the city said it only issued permits to the companies to install the antennas, and had no proprietary interest in the installation work. The city said it shouldn’t be made to enact a permitting process it considers tantamount to regulation.
“There is no doubt that the city, in executing the multiproject labor agreement, was acting as a private developer or property owner, not as a policymaker, in procuring electrical and other construction-related services,” Mitchell wrote. “While the city does not contesd its authority to enter the multiproject labor agreement generally, it argues that the arbitration award compels it to impose labor conditions on the telecommunications companies despite having no proprietary interest in their installation work. The city’s argument relies on the absence of any contractual relationship between the parties.”
Upgrading 5G equipment isn’t done on the city’s behalf, the panel said, but that fact doesn’t address the city’s interest in its own traffic and light poles. Furthemore, the city isn’t merely issuing permits attached to annual fees. It must grant access to municipal property and requires installers to reserve certain components for city use, the appeals panel said.
“In the event that a pole cannot support the additional fiberoptic cables and conduit, the telecommunications companies must replace the poles altogether,” Mitchell wrote. “Thus, the telecommunications companies’ installation of their small-cell devices directly implicates the city’s ownership and management interests.”
The panel also explained the arbitration award was crafted to avoid positioning the city as a regulator because enforcement essentially applies only to 5G installation and there is no supplemental sanction that would contravene exclusive National Labor Relations Board jurisdiction. And whether the award affects the union rights of employees of telecommunications companies, as the city argued, is an NLRB concern.
“For an award to be vacated on public policy grounds, not only must the public policy be well-defined and dominant but a violation must be clearly shown,” Mitchell wrote. “The city has not met this standard.”
The panel reversed Judge Loftus’ ruling and sent the case back to Cook County court for further proceedings.
IBEW is represented by Margaret Angelucci and Matt Pierce, of Asher, Gittler & D’Alba, Chicago.
Chicago city corporattion attorney Celia Meza is representing the city, along with assistants Myriam Zreczny Kasper, Suzanne M. Loose, and Sara K. Hornstra, from the city's Department of Law.