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FOP case shows stark difference between how the state and city are handling the union vax issue

Tuesday, Nov 2, 2021

* Daily Herald

A judge denied a preliminary injunction for six Naperville firefighters who are suing the city, Gov. J.B. Pritzker and Edward-Elmhurst Health over a COVID-19 vaccine and testing mandate.

Judge John R. Blakey made the ruling Monday in the U.S. District Court for the Northern District of Illinois, deciding the mandate will stay in place for the firefighters. After Blakey issues his ruling in writing in the next 10 days, Jonathan Lubin, the attorney for the firefighters, will have the opportunity to appeal. […]

Also at Monday’s hearing, Blakey discussed the possibility of reassigning two similar lawsuits, one against the city of Chicago and another against Cook County, so all three lawsuits could be heard by Blakey. Consultation with the judges in the other lawsuits, though, first needs to occur.

* Meanwhile, at the local level…


Meh.

* It’s actually a pretty good opinion and follows the law

Both sides, the City and the police unions, make compelling arguments rooted in public policies that favor their respective positions. The City reminds us that the COVID pandemic has presented the worst public health crisis in over a century with a staggering loss of life and untold human suffering. But out of that crisis has come a remarkable scientific achievement: lifesaving vaccines that are both safe and effective. The City’s vaccination policy represents a legitimate (indeed laudable) effort to protect the health of its employees as well as the public at large. All true.

The police unions argue that their right to engage in collective bargaining and pursue grievances in arbitration is deeply rooted in the public policy of the state of Illinois. The Illinois Public Labor Relations Act enacted expressly provides as much:

    It is the purpose of this Act to prescribe the legitimate rights of both public employees and public employers, to protect the public health and safety of the citizens of Illinois, and to provide peaceful and orderly procedures for protection of the rights of all.

Indeed, in approving the Senate bill that would become the Public Labor Relations Act, Governor James R. Thompson declared collective bargaining a “fundamental right.”

The Illinois Appellate Court has further recognized police officers and other public safety employees are prohibited from striking in exchange for the promise of an effective mechanism for resolving labor disputes.

This case then presents two competing public interests, but one interest need not be scuttled in favor of another. The City’s public health objective and the police union’s desire to pursue their grievances are not wholly irreconcilable. I do not credit any suggestion that the City’s vaccination policy is anything other than an effort to safeguard the health of its employees. Likewise, I do not accept that the police unions’ grievances and alternate proposals are anything other than an effort to protect their members. Indeed, the labor movement has a proud history of advocating for measures to protect the health and safety of workers. It is worth remembering that in the darkest days of the pandemic and the months that followed, when I worked remotely in the safety of my home, the men and women of the Chicago Police Department showed up to work. It should be no surprise then as the City tells us that COVID was the leading cause of death among police in the United States in 2020 and 2021. In light of that terrible sacrifice, the police unions’ request just to have their grievances heard seems a pretty modest ask. […]

Mindful that judicial intervention in labor disputes is disfavored, my intention is to enter the narrowest possible order to preserve the unions’ right to a meaningful arbitration. The balance of the City’s vaccination policy remains fully in effect, including the reporting and testing obligations.

A lesser remedy would be to order the parties to arbitrate the unions’ grievances on an expedited basis, i.e., before December 31. The appellate court has done just that on at least one occasion. The City, however, tells me that I cannot lawfully order expedited arbitration since, under the collective bargaining agreements, such a proceeding must be mutually agreed. The City’s counsel suggested at oral argument that it might be possible to arbitrate the grievances before December 31, 2021, but that is a matter for the parties to resolve among themselves. So, the only remedy left to protect the unions’ right to meaningful arbitration is to stay compliance with the December 31 vaccination requirement until such time as the arbitration is complete. The effect of this Order is to send these parties back to the bargaining table and to promote labor peace by allowing them to pursue the remedies provided for in the Illinois Public Labor Relations Act. The City has it within its own power to avoid any burden, harm, or inconvenience occasioned by this Order simply by pursuing an accelerated arbitration.

That is exactly right and it’s what the state is doing with AFSCME at this moment: Bargain it in good faith, and if there’s an impasse send it to arbitration. The likelihood of the FOP or AFSCME winning in arbitration doesn’t appear to be all that high, as the federal case at the top of this post would indicate. But the state is doing it by the book and the city is just kinda winging it.

- Posted by Rich Miller        

30 Comments
  1. - Amalia - Tuesday, Nov 2, 21 @ 11:53 am:

    LOL where the judge is from. first comment from the husband after hearing the ruling….”is he from Beverly?”


  2. - Sue - Tuesday, Nov 2, 21 @ 11:56 am:

    Would have happened eventually but as an anecdote Jim Thompson signed the CBA bill after being endorsed by the IEA in the 1982 squeaker of an election against his Dem opponent Adlai Stevenson. But for the endorsement Big Jim would have lost. IEA’s endorsement secured Thompsons signature on a Bill which dramatically changed the State


  3. - The Way I See It - Tuesday, Nov 2, 21 @ 11:58 am:

    Ray Mitchell is an excellent judge.


  4. - Union Thug Gramma - Tuesday, Nov 2, 21 @ 12:04 pm:

    I think the first misinformation about the mandate is all the city is mandating is that an employee must register if they have or have not gotten vaccinated, it is not mandating all employees must get a vaccine, so they still have a choice, between the vaccine and getting tested for COVID every couple of days.
    Second, while working for IDOC, I had to have certain tests (TB) and newer vaccines (hepatitis B)or I didn’t have a job…so what has changed so much since the 90’s that people don’t care about their health, the health of their family and friends? Yes, I know AFSCME is still neotiating with DOC on a vax plan, but they are still negotiating instead of blurting out silliness on FB, youtube or whereever to get his face on TV (FOP president).


  5. - WestBurbs - Tuesday, Nov 2, 21 @ 12:11 pm:

    Thanks for posting the opinion. Despite my personal belief that we should have a universal vax mandate (with no test option) I agree that it is well reasoned and follows the law (its really a labor law decision, not a vax decision). Do you have a link to the Arwady affidavit?


  6. - Ron Burgundy - Tuesday, Nov 2, 21 @ 12:19 pm:

    I know Judge Mitchell from way back. He is one of the best judges we have in Cook County, and was a brilliant attorney in private practice before assuming the bench. It pains me to see anyone questioning his integrity over this decision.


  7. - MisterJayEm - Tuesday, Nov 2, 21 @ 12:21 pm:

    “the city is just kinda winging it”

    Lightfoot’s reelection slogan.

    – MrJM


  8. - SWIL_Voter - Tuesday, Nov 2, 21 @ 12:30 pm:

    == I do not accept that the police unions’ grievances and alternate proposals are anything other than an effort to protect their members==

    COVID was the leading cause of death of police officers in 2020


  9. - Original Rambler - Tuesday, Nov 2, 21 @ 12:33 pm:

    Thanks for this post. Very succinct and informative. I hate seeing how the more conservative aldermen constantly comment on the dispute and refer to the City’s position as a vaccine mandate when it is not that at all. I agree that I don’t see how the City can lose this if it goes to arbitration. I did not appreciate the FOP threatening aldermen who voted against that proposed ordinance last week. Right out of the CTU playbook. I’ll be sure to vote against any candidate they endorse in my ward, just like I would if it was a CTU endorsed candidate.


  10. - Rich Miller - Tuesday, Nov 2, 21 @ 12:33 pm:

    SWIL_Voter, I do believe he was talking about their legal rights under state law. Indeed, he mentions that COVID was/is the leading cause of death last year and this year.


  11. - Just Me 2 - Tuesday, Nov 2, 21 @ 12:46 pm:

    The reason both cases are being handled differently is because the stakeholders have different purposes, and one is allowing emotions and the desire for news coverage to guide decision making.


  12. - Three Dimensional Checkers - Tuesday, Nov 2, 21 @ 12:47 pm:

    Disagree strongly that the City is winging it. The vaccine mandate is a lawful policy. You’ll be waiting until the next pandemic if you want to wait for FOP to bargain in good faith.


  13. - CG - Tuesday, Nov 2, 21 @ 12:49 pm:

    Judge Mitchell is one of the best judges in Cook County. He is not only brilliant; he is kind. We are lucky to have him.


  14. - Rich Miller - Tuesday, Nov 2, 21 @ 12:56 pm:

    === You’ll be waiting until the next pandemic if you want to wait for FOP to bargain in good faith===

    Maybe, but an impasse can be declared and then it’s sent to arbitration.


  15. - Pundent - Tuesday, Nov 2, 21 @ 12:56 pm:

    =one is allowing emotions and the desire for news coverage to guide decision making.=

    I would argue that it’s all that and more. Like a lot of leaders, John Cantanzara is putting his own aspirations ahead of the health and safety of the FOP membership. His desire to be adversarial with the mayor overshadows the best interests of the FOP.


  16. - Rich Miller - Tuesday, Nov 2, 21 @ 12:57 pm:

    === His desire to be adversarial with the mayor===

    That goes both ways.


  17. - zatoichi - Tuesday, Nov 2, 21 @ 12:59 pm:

    The more I read unions responses to vaxes and mandates the more it comes across as ‘to stay strong, a union has to negotiate everything’. Any level of cooperation without a fight/getting a benefit is seen as some sort of slippery slope to giving in/losing control. Multiple days off, various exemptions, continued testing, protecting members from vague issues that several 100 million vaxed people have not shown. Mandating vaxes in many large organizations are seeing compliances in the upper 90%. Just get it done.


  18. - Candy Dogood - Tuesday, Nov 2, 21 @ 1:01 pm:

    ===Maybe, but an impasse can be declared and then it’s sent to arbitration.===

    My money would be on the FOP making this an incredibly easy thing to achieve.

    I think it is worth noting that for all of the hemming and hawing done by police unions, which seem to be headed by the worst right wing fascists available, a whole 34 shielded officers are on unpaid leave in NYC over refusing the mandate.

    To some extent it’s an apples to oranges comparison, but public sector unions are putting resources and political capital into a fight that doesn’t seem to be in the interests of the majority of their members and at least part of that is the employers failing to do a good job of educating their forces about the actual facts regarding a vaccine instead of letting rumors about someone who knows someone who has an aunt that turned into a pumpkin after getting vaccinated.

    https://nypost.com/2021/11/01/heres-how-many-nypd-cops-are-on-unpaid-leave-over-vaccine-mandate/


  19. - Cheryl44 - Tuesday, Nov 2, 21 @ 1:05 pm:

    I think I’ve posted this here before,but I do not know if I would call the police if I needed them right now. I have no reason to believe the FOP is willing to serve and protect.


  20. - JS Mill - Tuesday, Nov 2, 21 @ 1:21 pm:

    =I have no reason to believe the FOP is willing to serve and protect.=

    It is too bad that you feel that way, I think the overwhelming rank and file officers everywhere are there to protect and serve no matter what.

    CPD is not the FOP and vice versa.

    Ctanazara is a complete knucklehead and I don’t think much better of Lightfoot, but her intransigence made this that much harder for the city and CPD commanders. The lawyer in her should know better. Follow the correct process. The judge’s decision was very sound and predicated on the law.


  21. - DirtLawyer - Tuesday, Nov 2, 21 @ 1:45 pm:

    If only the principals in this litigation were as rational and well-thought as the judge. Excellent opinion.


  22. - Three Dimensional Checkers - Tuesday, Nov 2, 21 @ 1:52 pm:

    ===Maybe, but an impasse can be declared and then it’s sent to arbitration.===

    You have to pull the trigger on the policy. State law is also clear that police officers cannot strike.


  23. - Chicago Blue - Tuesday, Nov 2, 21 @ 2:36 pm:

    I’m fully in support of a full vax mandate for all public employees with no exceptions outside of health, but I don’t see this as a bad decision. If he had ruled otherwise, I’d be concerned about limits and attack on other public sector Unions by right wing mayors in the future.


  24. - Joe Bidenopolous - Tuesday, Nov 2, 21 @ 2:44 pm:

    =CPD is not the FOP and vice versa.

    Ctanazara is a complete knucklehead=

    CPD may not be FOP but at least 50%+1 of them voted for the knucklehead and that’s (checks notes) a majority of the cops on the street

    I’m not sure I’d call them for anything either.


  25. - Telly - Tuesday, Nov 2, 21 @ 3:44 pm:

    === His desire to be adversarial with the mayor===

    == That goes both ways. ==

    Exactly right. Lightfoot and Cantanzara love to fight for fighting’s sake. They’re a lot more alike than either would care to admit.

    CPS teachers and other personnel are allowed to vax or test weekly at their schools. Here’s betting an arbitrator imposes a similar policy on CPD. A lot of acrimony could be saved if both sides would just agree to that now.


  26. - No Big Deal - Tuesday, Nov 2, 21 @ 4:26 pm:

    Ray Mitchell was a “Republican” before he filed to run in the Cook County Judicial Circuit. He clerked for Heiple and had ties to Thompson.


  27. - Sue - Tuesday, Nov 2, 21 @ 4:39 pm:

    The city hasn’t had much luck with its past significant cases decided by arbitrators. The Trib article quoted The Mayor stating the City was revising its legal recourse. Sometimes it’s hard to believe Lightfoot was a Big Law lawyer. There is no recourse other then proceeding to the arbitration


  28. - DuPage - Tuesday, Nov 2, 21 @ 5:52 pm:

    Lightfoot gave all city employees an extra personal day to make up for the time it took for them to get vaccinated, some employees had spent many hours in line, on their own time to get the shots. That is, all city employees EXCEPT police. If I was a Chicago cop, I would be thinking, where is my union on this? It seems Lightfoot is going out of her way to antagonize the police.


  29. - Tombrady - Tuesday, Nov 2, 21 @ 8:32 pm:

    ===I think I’ve posted this here before,but I do not know if I would call the police if I needed them right now. I have no reason to believe the FOP is willing to serve and protect.===

    Yeh, call a social worker. You may die but the social worker will handle it peacefully.


  30. - Ares - Tuesday, Nov 2, 21 @ 10:03 pm:

    The ruling makes sense. One other consideration in injunction cases is the public interest, of which public safety and adequate police staffing is a component.


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