(Editor's note: This article was published first by Illinois Policy Institute)
Illinois voters passed a first-of-its-kind government union provision when they approved Amendment 1 in November 2022. Inaccurately dubbed a “Workers’ Rights Amendment,”1 it in truth allows government union contracts to override state and local laws.
Yet even before Amendment 1 passed, precedent existed for some Illinois government unions to void state and local laws simply by writing contrary provisions into their collective bargaining agreements. Nestled toward the end of the state’s labor laws is the following:
“…any collective bargaining contract between a public employer and a labor organization executed pursuant to this Act shall supersede any contrary statutes, charters, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents.”
An Illinois Policy Institute review of all 50 states’ labor laws revealed no other state gives such extreme power to government unions to override state and local laws through a collective bargaining agreement, and without limitation.
It is more common for states to do the opposite: explicitly prohibit conflicts between union contracts and state or local laws.
But that might not be the case for long. Illinois is likely Ground Zero for a push to expand the power of government unions in other states.
NO OTHER STATE ALLOWS GOVERNMENT UNION CONTRACTS TO OVERRIDE STATE OR LOCAL LAWS WITHOUT RESTRICTION
The language of Illinois’ Amendment 1 is broad. While typical bargaining includes wages, hours and other terms or conditions of employment – which are traditional subjects of negotiations that have a long history of case law guiding states and courts on their meaning – Amendment 1 adds “economic welfare” to the mix.
But “economic welfare” is undefined in the amendment and does not appear in state law labor provisions. It could mean virtually anything. On top of that, the language of the amendment prohibits lawmakers from ever restricting or clarifying the language.
And the broad new provisions negotiated into government union contracts will be backed by the weight of the Illinois Constitution.
No other state has a constitutional provision like Amendment 1.
Yet even before Amendment 1, Illinois was unique in giving some collective bargaining agreements the power to override state law. In addition to the language quoted above, the Illinois Public Labor Relations Act also states:
“In case of any conflict between the provisions of this Act and any other law… the provisions of this Act or any collective bargaining agreement negotiated thereunder shall prevail and control.”
The amendment and statutory language together make Illinois the only state that allows government unions to override state and local laws without restriction.
It is more common for states to do the opposite, with at least 14 states explicitly prohibiting conflicts between union contracts and state or local laws. These states include Colorado, Delaware, Florida, Iowa, Indiana, Kansas, Minnesota, New Mexico, Nevada, Ohio, Pennsylvania, Tennessee, Vermont and Washington. All maintain one or more provisions prohibiting conflicts between union contracts and state or local laws.
Other states may allow some union contracts to override legal provisions, but with restrictions. For example, Connecticut allows contracts with state employee unions to include provisions that conflict with statutes or regulations of the agency involved, but those contracts must ultimately be approved by the legislature itself – thereby putting those contradictory provisions through a legislative process.
Maryland allows some contracts to override the internal regulations or policies of the employer agency or commission negotiating the contract but does not include the ability to contradict state or local laws. Texas maintains statutes allowing contracts with unions representing first responders to “preempt” or “supersede” statutes, but collective bargaining in general is prohibited for most government workers.
Wisconsin appears to allow some university employee contracts to conflict with civil service laws, but the current application of those provisions would be limited by the state’s law prohibiting public employers from negotiating anything but wages.
Illinois has long been an outlier in giving government unions broad powers over residents. Amendment 1 takes that status to a new level. Illinois is now the only state to allow, seemingly without restriction, government unions to override state law simply by demanding a contrary provision in a union contract. Plus, it now prohibits lawmakers from enacting any restrictions.
Even though it takes two parties to finalize a contract, Amendment 1 also gives government unions a permanent right to go on strike to get what they want.
That means government unions will always have the upper hand over Illinois residents and their elected officials.
GOVERNMENT UNIONS IN ILLINOIS COULD OVERRIDE MORE THAN 350 STATE LAWS
A review of Illinois’ state statutes revealed government unions could override more than 350 provisions related to schools, children and other residents.
Among these laws are provisions:
• Protecting school children• Regulating immunizations of school children• Outlining required school curriculum• Protecting children under the watch of the Department of Children and Family Services• Prohibiting political activities while engaged in government work• Prohibiting unionization of elected officials• Prohibiting politicians from holding multiple government offices• Prohibiting government employment of people convicted of violent crimes• Allowing termination of government employment for misconduct• Setting public safety policies
For example, the Illinois School Code prohibits anyone who has committed a sex offense from being licensed to teach and provides no one convicted of a drug offense can be licensed to teach or supervise until seven years after the end of the sentence. But a teachers’ union could negotiate a contract provision holding that licensure is not required to be employed as a teacher in the school district (i.e., it’s a “condition of employment” the unions can negotiate).
The School Code also outlines the procedure for required medical examinations and immunizations for Illinois students. Teachers unions could demand in their contracts other vaccination requirements – such as that all district students have COVID-19 vaccinations – claiming it a negotiable subject because it pertains to “safety at work.”
And while more than 350 provisions have been identified, more likely exist. Illinois’ amendment and statutory language are so broad and vague it’s hard to predict every potential state law or local ordinance that could be trumped by a union contract. The Illinois Compiled Statutes include thousands of provisions related to all aspects of residents’ lives, from general provisions (Chapter 5) and elections (Chapter 10) to business transactions (Chapter 815) and employment (Chapter 820). This review highlighted only provisions in statutes directly related to government employment that are most obviously affected.
Government unions have a history of pushing unpopular issues, or issues beyond the scope of ordinarily negotiated employment topics, that lawmakers don’t want to address. For example, the Chicago Teachers Union has already pushed its social agenda on housing, immigration, wealth redistribution and defunding the police in negotiations with Chicago Public Schools.
Under Illinois law, government unions could “pass” their most-unpopular demands at the bargaining table, and voters would have no way to hold them accountable.
ILLINOIS IS LIKELY THE BLUEPRINT FOR EXPANDING GOVERNMENT UNION POWER IN OTHER STATES
Illinois wasn’t the first state targeted with the expansion of government union power through a broad labor amendment. A similar “Protect Our Jobs” initiative was attempted in Michigan in 2012, but it failed 57% to 42%.
The Michigan experience dampened union efforts to pass far-reaching constitutional amendments for a decade. But with the passage of Amendment 1 in Illinois, government labor leaders won’t likely wait that long to try again in other states.
Tim Drea, president of the Illinois AFL-CIO, acknowledged in the lead-up to the November 2022 election that Illinois was drawing the interest of pro-union forces in other states. During an interview on WMAY, he stated, “I gotta tell you, I mean, we’re getting a lot of interest on this amendment from other states… it’s a bold initiative. Very, very bold.”
Now that unions in Illinois have set the precedent, it may not seem so bold. Illinois has shown the potential for sweeping union takeovers in states all over the nation.