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.⁴ 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 1.⁵

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.”⁶

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,⁷ Delaware,⁸ Florida,⁹ Iowa,¹⁰ Indiana,¹¹ Kansas,¹² Minnesota,¹³ New Mexico,¹⁴ Nevada,¹⁵ Ohio,¹⁶ Pennsylvania,¹⁷ Tennessee,¹⁸ Vermont¹⁹ and Washington.²⁰  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.²¹

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.²² 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.²³

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.²⁴

Illinois has long been an outlier in giving government unions broad powers over residents. Amendment 1 takes that status to a new level.²⁵ 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.²⁶

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.²⁷

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.²⁸ 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.²⁹ 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.³⁰

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%.³¹

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.”³²

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.

Endnotes

¹ Mailee Smith, Fact check: No other state constitution has a provision similar to Amendment 1, Illinois Policy Institute (Aug. 10, 2022), https://www.illinoispolicy.org/fact-check-no-other-state-constitution-has-a-provision-similar-to-amendment-1/; Mailee Smith, Amendment 1 would give Illinois government union bosses nation’s most extreme powers, Illinois Policy Institute (Oct. 22, 2021), https://www.illinoispolicy.org/amendment-1-would-give-illinois-government-union-bosses-nations-most-extreme-powers/. Amendment 1 appears as Art. I, Sec. 25 in the Illinois Constitution. Illinois Constitution, https://www.ilga.gov/commission/lrb/conent.htm. For purposes of clarity, it is referred to as Amendment 1 herein.

² Mailee Smith and Perry Zhao, Above the Law: Amendment 1 would let government unions void over 350 Illinois laws, Illinois Policy Institute (2022), https://www.illinoispolicy.org/reports/above-the-law-amendment-1-would-let-government-unions-void-over-350-illinois-laws/.

³ 5 ILCS 315/15(b), https://www.ilga.gov/legislation/ilcs/documents/000503150K15.htm. In addition, Illinois law 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.” Id. at (a). These provisions did not apply to public education workers, who are covered by the Illinois Educational Labor Relations Act, 115 ILCS 5/1 et seq. But the enactment of Amendment 1 means all government unions can now override laws through union contracts.

⁴ During a debate before the passage of Amendment 1, professor and Amendment 1 proponent Elizabeth Tandy Shermer admitted, “We actually don’t know what’s going to be in these union contracts. We don’t know at all.” The 21st Show, Best of: What is the Illinois Workers’ Rights Amendment?, NPR (Nov. 2, 2022), https://will.illinois.edu/21stshow/story/best-of-what-is-the-illinois-workers-rights-amendment.

⁵ Mailee Smith, Fact check: No other state constitution has a provision similar to Amendment 1, Illinois Policy Institute (Aug. 10, 2022), https://www.illinoispolicy.org/fact-check-no-other-state-constitution-has-a-provision-similar-to-amendment-1/; Mailee Smith, Amendment 1 would give Illinois government union bosses nation’s most extreme powers, Illinois Policy Institute (Oct. 22, 2021), https://www.illinoispolicy.org/amendment-1-would-give-illinois-government-union-bosses-nations-most-extreme-powers/.

⁶ 5 ILCS 315/15(a). While the Illinois Public Labor Relations Act does not apply to public educators, who are covered by the Illinois Educational Labor Relations Act, the same power to override law now lies with education unions through Amendment 1.

⁷ C.R.S. 8-3.3-113.

⁸ 14 Del. C. § 4013; 19 Del. C. § 1313; 19 Del. C. § 1613.

⁹ Fla. Stat. § 447.309.

¹⁰ Iowa Code § 20.28.

¹¹ Burns Ind. Code Ann. § 20-29-6-2.

¹² K.S.A. § 75-4330.

¹³ Minn. Stat. § 179A.20.

¹⁴ N.M. Stat. Ann. § 10-7E-17.

¹⁵ Nev. Rev. Stat. Ann. § 288.150; Nev. Rev. Stat. Ann. § 288.505.

¹⁶ ORC Ann. 4117.10; ORC Ann. 4117.101.

¹⁷ 43 P.S. § 1101.703.

¹⁸ Tenn. Code Ann. § 49-5-609.

¹⁹ 21 V.S.A. § 1725. This statute also provides a way for a legislative body to validate a contradictory provision by vote.

²⁰ Rev. Code Wash. (ARCW) § 47.64.120. The law allows contracts to override an agency’s internal rules, but not a statute.

²¹ Conn. Gen. Stat. § 5-278; Conn. Gen. Stat. § 5-278; Conn. Gen. Stat. § 7-474. Similarly, California allows a memorandum of understanding between the state and some state employees to override state laws, but its legislature has enumerated what those subjects can be – such as basic hourly wages and monthly salaries – and has not left it open ended. Cal Gov Code § 3517.6; Cal Gov Code § 3517.61.

²² Md. Education Code Ann. § 16-709; Md. Land Use Code Ann. § 16-211; Md. Land Use Code Ann. § 16-309; Md. Housing and Community Development Code Ann. § 16-312; Md. Public Utility Companies Code Ann. § 18-209.

²³ Tex. Local Gov’t Code § 142.067; Tex. Local Gov’t Code § 142.117; Tex. Local Gov’t Code § 142.160; Tex. Local Gov’t Code § 143.207; Tex. Local Gov’t Code § 143.307; Tex. Local Gov’t Code § 143.361; Tex. Local Gov’t Code § 146.017. See also Tex. Gov’t Code Ann. § 617.002 (prohibiting an official of the state or political subdivision of the state from entering into a collective bargaining agreement with a labor organization representing public employees); Milla Sanes and John Schmitt, Regulation of Public Sector Collective Bargaining in the States, Center for Economic and Policy Research (Mar. 2014), https://cepr.net/documents/state-public-cb-2014-03.pdf (listing Gov’t Code Ann. § 617.002 as making collective bargaining illegal for public employees other than police and firefighters); Texas AFT, What is a Union? (2023), https://www.texasaft.org/resources/know-rights/right-to-join-a-union/ (“Texas has banned collective bargaining for most public employees (true), as well as striking (true)”).

²⁴ Wis. Stat. § 111.93; Wis. Stat. § 111.91(3) (prohibiting negotiations over anything but wages).

²⁵ See, e.g., Mailee Smith, Rigged: How Illinois’ labor laws stack the deck against taxpayers, Illinois Policy Institute (Winter 2017), https://www.illinoispolicy.org/reports/rigged-how-illinois-labor-laws-stack-the-deck-against-taxpayers/.

²⁶ Mailee Smith, What you need to know about giving unions special treatment in Illinois’ Constitution, Illinois Policy Institute (Oct 13, 2021), https://www.illinoispolicy.org/what-you-need-to-know-about-giving-unions-special-treatment-in-illinois-constitution/.

²⁷ See Mailee Smith and Perry Zhao, Above the law: Amendment 1 would let government unions void over 350 Illinois laws, Illinois Policy Institute (2022), https://www.illinoispolicy.org/reports/above-the-law-amendment-1-would-let-government-unions-void-over-350-illinois-laws/.

²⁸ 105 ILCS 5/21B-15 (a); 105 ILCS 5/21B-15 (a).

²⁹ 105 ILCS 5/27-8.1.

³⁰ “Questions and answers about our contract campaign,” Chicago Teachers Union, https://www.ctulocal1.org/movement/contract-campaigns/about/; Jackson Potter and Saqib Bhatti, “Defund police and banks; support schools and a more just social order,” Chicago Teachers Union (Sept. 22, 2020), https://www.ctulocal1.org/chicago-union-teacher/2020/09/defund-police-and-banks-support-schools-and-a-more-just-social-order/.

³¹ Michigan “Protect Our Jobs” Amendment, Proposal 2 (2012), Ballotpedia, https://ballotpedia.org/Michigan_%22Protect_Our_Jobs%22_Amendment,_Proposal_2_(2012).

³² Tim Drea, Interview on WMAY (Sept. 15, 2022), https://omny.fm/shows/wmaynewsfeed/tim-drea-il-afl-cio-president-9-15-2022.