Chicago Public Schools’ reopening plan a step closer to reality after teachers union injunction is denied

Hannah Leone, Chicago Tribune

The Illinois Educational Labor Relations Board on Thursday declined to pursue an injunction sought by the Chicago Teachers Union, clearing a hurdle for Chicago Public Schools to move forward with its plans to reopen schools in the new year.

Unwilling to accept defeat, the CTU is escalating its fight for staff and students to return to classrooms only when the union agrees it’s safe.

With unresolved factual disputes between the union and school district, the labor board decided the case fell short of legal requirements for seeking an injunction from the Illinois Attorney General.

In a 2-1 vote, the board agreed with general counsel Ellen Strizak’s recommendation to deny the request. Strizak said the union had not established reasonable cause to believe CPS had violated the Illinois Educational Labor Relations Act, and that a hearing was needed to resolve factual disputes.

The CTU is now trying to have a hearing with an administrative law judge expedited to take place before CPS staff members are expected to return to schools Jan. 4. A hearing is currently scheduled for later in the month.

Before CPS set hard reopening dates, the labor relations board denied a similar request by the CTU on the grounds that CPS hadn’t yet taken unilateral action. But the board discussed revisiting the case if the school district set dates without collective bargaining.

Then CPS announced that schools would reopen Jan. 11 to students in pre-kindergarten and moderate to severe special education cluster programs. Other students in kindergarten through sixth grade, and most seventh and eighth graders, would start a hybrid model on Feb. 1. No return date has been set for high schools.

Shortly after the announcement, CTU refiled a request to stop the plan until the union had agreements with CPS over outstanding issues such as enforcement of health and safety measures, a coronavirus testing plan and the metrics used to open or close schools.

“So here we all are again,” Strizak said.

This time, Strizak cautioned that the board shouldn’t assume the union had a good chance of prevailing with an injunction when there were still facts in dispute, including whether CPS had bargained in good faith in more than 40 meetings with the teachers union since June.

“It is unclear whether these meetings actually constitute bargaining sessions,” Strizak said. “... There are factual issues in this case as to whether (CPS’s) conduct amounts to bad-faith bargaining.”

An overarching question since March has been whether school districts are even required to bargain with employee unions over plans to reopening schools during the coronavirus pandemic.

CTU has argued that because reopening during a pandemic relates to employee health and safety, it qualifies as a mandatory subject of bargaining. But CPS officials have insisted that reopening is substantially about where instruction occurs and so counts as a permissive subject, meaning they can bargain but don’t have to and can make a decision even if the parties are still negotiating over its impact.

In a previous case, the board defined places of instruction as “physical locations where instruction is provided,” Strizak said, “but it is well settled in labor law that employee safety is a mandatory subject of bargaining.”

How those categories apply amid an unforeseen shift to remote learning and highly contagious, deadly virus complicates the issue of whether CPS has indeed failed to bargain over required subjects, as CTU has claimed.

“That may well be or it may not, depending on whether the return to in-person learning is considered a permissive subject of bargaining ... because it concerns places of instruction, or a mandatory subject of bargaining because it concerns employee health and safety,” Strizak said.

Disagreeing with Strizak’s recommendation, board member Lynne Sered, who cast the dissenting vote, said reopening should not fall under section 4.5 of the Illinois Educational Labor Relations Act, which includes “hours and location of instruction” on a list of permissive subjects of collective bargaining.

“I want to acknowledge the seriousness of the issues involved and also acknowledge the devastating effect COVID-19 has brought upon students, parents and employees of the Chicago Public Schools,” Sered said. “The issue before us, however, remains focused on the requirements of the collective bargaining agreement between the CTU and the (Chicago Board of Education).”

The CTU’s contract requires CPS to bargain over “policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon” and holds that employees “shall work under safe and healthful conditions.”

The Illinois lawmakers who passed the educational labor relations act probably did not foresee a pandemic, Sered said.

“In my view, health and safety is a mandatory subject of bargaining which may not be disregarded by the provisions of 4.5, especially in light of the fact that it is unlikely in my view that the General Assembly, when contemplating 4.5, envisioned the situation we now find ourselves in,” Sered said. “It is undisputed that the Chicago Board of Education has announced a date certain to bring children and teachers back to in-person learning without bargaining that decision with the CTU. Further, as we are literally dealing with life and death issues, I find this to be irreparable harm.”

The other two board members, Gilbert O’Brien, Jr. and Lara Shayne, voted to uphold the general counsel’s recommendation without further discussion.

CPS is claiming victory, asserting that schools cannot address deepening inequities without opening their doors.

“The district commends the IELRB for ruling in favor of the more than 77,000 CPS students whose families have asked to return to schools,” said CPS spokeswoman Emily Bolton. “Schools in Chicago and across the country have shown that classrooms are safe with the proper mitigations. ... It’s time for the CTU to put students first and be supportive partners in the effort to safely reopen classrooms for the families who need us now more than ever.”

Union leaders said they expect CPS to oppose their request for an expedited hearing and that if a judge were to rule in their favor after schools had already reopened, the remedy would be meaningless.

“In that case, all options will be on the table for the CTU to enforce our rights and protect the health, safety, and livelihoods of students, educators and their families,” said CTU President Jesse Sharkey. “... Our case at trial is rock solid, and we’re not wavering from our commitment to place safety, equity and trust at the heart of any agreement to return to our school communities.”

CTU leaders have been coy about their threshold for taking a strike vote. At Wednesday’s Chicago Board of Education meeting, Sharkey said a lack of agreement over outstanding issues “is going to make our union campaign in a way which is going to have very real consequences for this whole city.”

On Thursday, the union announced its executive board will meet next week “to lay out next steps in the union’s campaign to return to buildings only when CPS has bargained to consensus on critical safety issues.”

hleone@chicagotribune.com