MR. JUSTICE MURPHY delivered the opinion of the court.
Plaintiff and intervenor-plaintiff appeal from an "Opinion and Decree," which dismissed their separate complaints, after making findings and declarations of law, the effect of which was to approve collective bargaining by the Board of Education of the City of Chicago with a sole collective bargaining agency to be selected by its teachers.
The plaintiff (Chicago Division), an Illinois not-for-profit corporation, is an association of school teachers and other educational personnel organized for the purpose of representing its members and other teachers and educational personnel who desire it to present grievances to, and negotiate with, the defendant Board of Education of the City of Chicago (Board), regarding working conditions, welfare and professional responsibilities. The intervenor-plaintiff is James D. Broman, a citizen and taxpayer of the City of Chicago.
Since 1964, the Board has recognized the Chicago Division, the CTU and the Chicago Principals Club as collective bargaining agents for their teacher members and other educational personnel who desired one of these organizations to speak for them. With the Board's approval, a "Memorandum of Understanding," which prescribed procedures for the resolution of professional problems and grievances, was entered into with each organization by the General Superintendent of Schools.
In a verified two-count complaint filed October 5, 1965, plaintiff sought (1) both a declaratory judgment to have its "Memorandum of Understanding" (contract) with the defendant Board, dated March 11, 1964, and effective November 12, 1964, determined to be a valid and subsisting contract, in force and effect at least until November 12, 1966, and to restrain the Board "from proceeding with the preparation for and the conducting of the election among its employees, school teachers and educational personnel to determine what organization they wish to have represent them as their sole bargaining agent until a hearing and determination of this cause be had by this Court"; and (2) relief against the "Board's adoption of Resolutions 73408 and 73409 in September, 1965," which resolutions plaintiff claimed breached its contract; and relief against the Board's discrimination reflected by the Board's activities leading up to the adoption of the resolutions and its continued demonstrated prejudicial action thereafter against plaintiff and in favor of Chicago Teachers Union.
Defendant Board and intervenor-defendant CTU filed motions to strike and dismiss the complaints of the Chicago Division and of Broman.
On February 23, 1966, the trial court, after considering the pleadings, affidavits and exhibits, and the briefs filed by all parties, and having heard the arguments of counsel, entered an "Opinion and Decree," which included findings and declarations of law, allowed the motions to strike and dismiss both complaints, and dismissed the cause subject to expressed "limitations."
The findings included:
The order included:
The record of proceedings in this court shows that subsequent to the entry of the decree and on March 25, 1966, the Board gave written notice of intent to terminate the "Memoranda of Understanding" of both plaintiff and the Chicago Teachers Union and authorized a referendum election to be held on May 27, 1966. Thereafter, this court denied plaintiff's motion for a temporary restraining order enjoining the holding of the election.
Initially, we consider whether the trial court was correct in striking Broman's complaint. This raises the basic question of whether the Board may bargain collectively with an exclusive employee representative. Broman contends:
(1) "The central question raised in this Court is whether the Board of Education of the City of Chicago has authority to engage in collective bargaining, and to enter into a collective bargaining agreement, with an exclusive representative of its employees. It is not disputed that the power to do so has not been expressly conferred on the Board by the legislature. Both defendants have argued, rather, that the authority to engage in such bargaining, and to conclude a contract, may be implied from general legislation empowering the Board to contract and to do all things `necessary or proper' for the operation of the schools. Neither defendant has argued that the authority to bargain collectively is necessary to the operation of the schools. Instead, both have argued that collective bargaining is a proper function of the Board, and may be engaged in by the Board at its discretion."
(2) "The courts of this state — like those in a majority of other jurisdictions — should leave to the legislature
The authorities cited by Broman include International Brotherhood v. Grand River Dam Authority (Okla), 292 P.2d 1018 (1956) which, Broman asserts, stands for the proposition "that public employees have no common law right of collective bargaining, and that even a statute giving a public agency authority to contract does not, inferentially, create in public employees the right to bargain collectively." City of Jackson v. McLeod, 199 Miss. 161, 24 So.2d 319 (1946), which was a suit by a policeman who had been discharged because of his membership in a labor union. There the court upheld the Civil Service Commission in its finding that union membership was incompatible with a policeman's duty to the community. Levasseur v. Wheeldon, 79 SD 442, 112 N.W.2d 894 (1962), cited for the rule that "absent statute public employees have no right to engage in collective bargaining." Philadelphia Teachers' Ass'n v. Labrum, 415 Pa. 212, 203 A.2d 34 (1964) cited to suggest that "Pennsylvania law does not uphold collective bargaining between public employees and public employers." Mugford v. Mayor and City Council of Baltimore, 185 Md. 266, 44 A.2d 745 (1946), where "the precise question of a municipality's authority to bargain collectively with its employees was decided negatively by the trial court and not appealed." International Union of Operating Engineers, Local Union No. 321 v. Water Works Board of City of Birmingham, 276 Ala 462, 163 So.2d 619 (1964), which followed "the strongest current of opinion from the highest courts of states where the question has been presented ... that a public agency has no authority to bargain or contract with a labor union in the absence of express statutory authority." International Longshoremen's
From these authorities, Broman argues that since 1958 the courts of nine states have reiterated the basic principle contended for by taxpayer Broman — that public employees have no right to bargain collectively unless and until the legislature has conferred that right and defined the manner of its exercise. As evidence of an Illinois policy against collective bargaining by public employees, Broman points out that "the legislature has ten times refused general authorization for public collective bargaining but has, during the same period, authorized collective bargaining for two specified public agencies." Broman argues that the Illinois Supreme Court in Board of Education of Community Unit School Dist. No. 2 v. Redding, 32 Ill.2d 567, 207 N.E.2d 427 (1965), recognized and explicitly relied upon the fundamental distinction between public and private employment in ruling
The Board contends that specific legislation is unnecessary, and that existing general legislation is more than sufficient to authorize exclusive collective bargaining by the Board, and that the collective bargaining agreement authorized by the decree preserves the Board's statutory authority and that its provisions are mandatory. It argues that Broman's authorities are not relevant, and that "few of these foreign authorities considered any specific collective bargaining agreement, not to say one containing provisions similar to those required to be included in any collective bargaining agreement the Board may enter."
The Board asserts that "a review of the activity of state and the federal legislatures can be argued to demonstrate that legislation is needed to prevent collective bargaining by governmental agencies, not to authorize it," and that existing Illinois legislation authorizes collective bargaining by the Board. Ill Rev Stats 1965, c 102, § 35.2, and c 48, § 852. The Board claims that the power of the Board here questioned "exists independently of specific statutory provisions and is legislatively recognized by the cited Acts." It agrees that Article 34 of the School Code, which governs school boards, does not specifically authorize the Board to engage in collective bargaining, but neither does it "provide otherwise."
As to the general rule set forth in 31 ALR2d 1142, 1170:
the Board states that "the decree at bar prohibits the Board from entering into any collective bargaining agreement under which it would `abdicate or bargain away its continuing legislative discretion'. Such a collective bargaining agreement cuts the ground from under the general rule as stated in American Law Reports. The reason for the rule being absent, there is no reason for it here."
The Board further agrees that it cannot delegate authority conferred on it by the legislature, nor delegate its discretionary powers in any collective bargaining agreement (Stroh v. Casner, 201 Ill.App. 281 (1916)), but claims that Broman's assertion that "collective bargaining necessarily grants to the collective bargaining agent a role in the decision-making process of the Board which was neither created nor approved by the legislature," ignores the provisions of the instant decree. The Board points out that under the decree it must maintain "sole responsibility for effecting the statutory duties delegated to it," and that the decree "prohibits the Board's entry into any collective bargaining agreement which could result in any delegation of its statutory powers or duties."
The Board contends that the decree is in accord with the Illinois Supreme Court opinion in Board of Education of Community Unit School Dist. No. 2 v. Redding, 32 Ill.2d 567, 207 N.E.2d 427 (1965) and that Redding does not speak of the legality of collective bargaining by public school employees. Rather, it holds only that such employees cannot strike or otherwise engage in conduct deleterious to the efficient operation of the schools. In the Redding case, where the court enjoined both the strike and picketing of schools, it is said (p 571):
And at p 572:
The Board, in support of the decree and its provisions, asserts that it "accords with the pronouncements of all relevant precedent in or out of this State," and that "the collective bargaining agreement held lawful by the chancellor cannot conceivably serve as a vehicle for delegating
and that a decree of a court of equity must be reasonably construed, and must be interpreted as an entirety. Neidhardt v. Frank, 325 Ill. 596, 156 NE 769 (1927).
On the issue of collective bargaining in public employment, the intervenor-defendant, CTU, contends that "employees, including those employed by government, have a right to organize for the purpose of collective bargaining under the First and Fourteenth Amendments to the United States Constitution," and that the right of employees to organize has been treated in several U.S. Supreme Court cases as protected by the Constitution. Lincoln Union v. Northwestern Co., 335 U.S. 525 (1949); Communications Ass'n v. Douds, 339 U.S. 382 (1950).
Other authorities relied on include City of Springfield v. Clouse, 356 Mo 1239, 206 S.W.2d 539, 542 (1947), where it is said:
Labor Board v. Jones & Laughlin, 301 U.S. 1 (1937), where the Supreme Court upheld the validity of the National Labor Relations Act and pointed out that the Act was designed to "protect" the right to organize and the right to organize included the right to organize for the purpose of collective bargaining, which right existed separate from the Act.
The CTU, in asserting that the right of employees to organize for collective bargaining is a right also enjoyed by public employees, states, "employment by government does present the occasion for limitation of rights, but until government actually attempts to limit rights they remain unfettered," Wieman v. Updegraff, 344 U.S. 183 (1952); United Public Workers v. Mitchell, 330 U.S. 75 (1947), and "while Taxpayer Broman seemingly assumes that by entering public service employees thereby cede all their rights and have only those which the government gives, the exact opposite is true. Thus public employees in Illinois maintain their right to organize for the purpose of collective bargaining, at least until that right is legitimately limited," and "the proper question then is whether the instant Board of Education is under some legal inhibition."
In contending that Illinois belongs among those states which approve collective bargaining in public employment, the CTU admits there is a genuine split on this
As additional authority, the CTU states that "New York City and 86 unions representing the various employees of the city established a Memorandum of Understanding dated March 31, 1966, which includes the following provisions:
The CTU notes that "The American Federation of Teachers, of which the Chicago Teachers Union is a local, represents teachers in Philadelphia, New York, Detroit, Cleveland and numerous smaller cities and communities. Illinois locals currently have written exclusive collective
As to whether the Board of Education of the City of Chicago may in its discretion engage in collective bargaining, the CTU observes, "There appears to be no disagreement over the fact defendant Board of Education has the power to employ 20,000 teachers. The central issue of this case lies in disagreement over the means used to determine the contract terms of those 20,000 employees. It is submitted that the board is the best judge of the most efficient method of arriving at those terms; this court is without authority to deny the board's exercise of discretion in choosing the method unless the choice is manifestly unreasonable."
On the exercise of discretion by the Board, the CTU analyzes the various Illinois authorities relied upon by Broman, such as Lindblad v. Board of Education, 221 Ill. 261, 77 NE 450 (1906), and Stroh v. Casner, 201 Ill.App. 281, and asserts that they are not in point.
The CTU argues that the Illinois courts have approved broad discretion in school board contractual relationships which have genuine bargaining as their basis, and cites Wilson v. Board of Education of Chicago, 233 Ill. 464, 84 NE 697 (1908), where it is said (p 475):
The CTU also cites a number of authorities to show that collective bargaining does not involve a delegation of power. NLRB v. American National Ins. Co., 343 U.S. 395 (1952); Norwalk Teachers Ass'n v. Board of Education, 138 Conn. 269, 83 A.2d 482 (1951); Local 266 v. Salt River Project, 78 Ariz. 30, 275 P.2d 393 (1954); and Fellows v. LaTronica, 151 Colo. 300, 377 P.2d 547 (1962), where it is said in a concurring opinion (p 551):
Conceding that this decision of the trial court dismissing Broman's complaint had the necessary effect of approving collective bargaining for public employees in Illinois, Broman states: "To this approval the court
Finally, we consider the principal contention of the plaintiff that Count II of its complaint stated a substantial cause of action, which required a hearing, and that the trial court's dismissal of the complaint was in error. In Count II, plaintiff alleged a number of acts of the defendant Board, which plaintiff contends manifested favoritism and partiality toward the CTU, and sought to enjoin the holding of a referendum election among the employees of the defendant Board until the prejudicial effects of the Board's preferential treatment in favor of the CTU had been eliminated.
Plaintiff argues that the prejudicial effect of Resolution 73408 was not removed because the court declared one paragraph void, and that "the prejudicial effect of the Resolution derives from the fact that prior to any election it evidences to the Board's employees the Board's prior agreement to deal only with Chicago Teachers Union in regard to `any and all matters which are proper subjects of collective bargaining.' The potential voters are thus apprised of the Board's choice of a collective bargaining agent and the election may presumably be held merely to ratify the Board's choice. Invalidating the Resolution does not indicate that the Board's preference for the Union has disappeared; it merely indicates that the court did not share the Board's preference."
In response to this contention, the Board argues that as to one "discrimination" of which plaintiff specifically complained, in Resolution 73409, the plaintiff, at the court's direction, presented its objections to the Board, which amended the Resolution and eliminated the language of which plaintiff complained. Also, it is argued
The pleadings in this court show that the election was held on May 27, 1966, and the Board argues that it amended Resolution 73409 "exactly 205 days before the election was held. The Court held ineffective the cited language in Board Resolution 73408 exactly 94 days before the election.... The `effects' of the original language were eliminated by its public negation; the Court by no means `ignored' any portion of the complaint; and both counts were properly stricken after plaintiff's rights had been declared."
The Board further observes that "plaintiff has pointed to no provision of its Memorandum of Understanding which was `violated' by the election. Plaintiff cannot assume that the Board will violate the decree by refusing to honor the terms of the Memorandum of Understanding until it terminates November 12 [1966]," and "that holding an election and entering into a collective bargaining agreement with the agency selected are two distinct and separate actions."
The CTU agrees with plaintiff that Resolutions 73408 and 73409 contained "inappropriate language," and asserts that "the union's sole desire was not favoritism but a democratic election," and "the sole question is whether the residual effects of the favoritism prejudiced Chicago Division in the election of May 27, 1966.
The CTU further argues: (1) The residual effects were so minimal as not to require a hearing and the Chicago Division well knows that the effects were insignificant; (2) The question does not warrant consideration because Chicago Division, by refusing to engage in the election of May 27, 1966, failed to mitigate its damage and waived its right to complain about the election.
Just how much time was required to dissipate the effect of the alleged prejudicial conduct was primarily a question for the trial court, and we assume that the court considered this point in determining the provisions of its "Opinion and Decree." Accordingly, we find no reason to now disturb the court's dismissal of Count II of plaintiff's amended complaint.
In considering the "Opinion and Decree" and this record, we believe the trial court was presented with questions of substantial public interest, in a highly sensitive area, for which there were no precise limits or guidelines in this state. The court was required to act summarily if its action was to be effective. For the reasons given, the "Opinion and Decree" is affirmed.
Affirmed.
KLUCZYNSKI, P.J. and BURMAN, J., concur.
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