The opinion
Mr. JUSTICE CRAVEN, dissenting:
The provision in question provided:
“E. An affidavit to be signed and notarized by certified employees verifying that they would have worked August 22, 23, 24, and 25, 1977, if there had been no strike, the certificate to verify that the said individual did not participate in the strike. ° 0 ”.”
This posed two propositions to each teacher: that he would have worked but for the strike, and that he did not participate in the strike. These two assertions are logically independent, for neither entails the other. A teacher could consistently assert the truth of either one while denying the other. Thus, these two propositions present two-times-two or four possible combinations of activity or belief and four potential classifications of teachers: First, those who would not have worked even if the strike had not been occurring and did not participate in the strike; second, those who would not have worked but did participate; third, those who would have worked and did not participate; and, fourth, those who would have worked but did participate. The board sought to reward the third group of teachers, those who would have worked and did not participate in the strike. But because even those teachers most committed to the strike could agree that they would have worked had the strike not been occurring, the second proposition, based on participation, represents the intended division and true basis for classifying teachers. The majority finds an exchange of consideration in signing the affidavits and receiving the bonuses, yet the behavior rewarded was not participating in the strike. On August 22, 23, 24, and 25, thus, the teachers were invited to gamble, in a wager that Pascal might have recommended taking, participation in the strike against the belief in the possibility of future rewards. The board thus intended to pay bonuses to those teachers who would “verify” that they did not participate in the strike. Presumably, “participation” means more than just staying home from work because the board closed the schools and thus no one could work. Yet “participation” goes undefined. Perhaps “participation” means voting for the strike, or picketing, or stenciling signs for those picketing, or brewing coffee for those picketing, or transporting to the picket lines a person intending to picket; “participation” cries out for definition.
Whatever the board meant in using “participation,” I find the classification objectionable. Although the supreme court has ruled that employees in the public sector — unlike those in the private sector — do not have the right to strike (City of Pana v. Crowe (1974), 57 Ill. 2d 547 , 316 N.E.2d 513 ), the “illegality” of the strike does not justify the school board’s payment of bonuses to those who said that they had not “participated” in the strike. I do not agree with the majority’s reliance on Cook County College. In that case, striking teachers clearly would have received favorable treatment under their arbitration agreement. In contrast, the negotiated settlement here seeks to reward teachers who disavowed their strike activity to the exclusion of those who stood firm in their commitment to the teachers’ association. While some may object to rewards for teachers for their strike activity, it does not necessarily follow that it is right to reward other teachers who will say that they did not participate in the strike. The end result of this affidavit procedure was a disparity in salaries based solely on the signing of an affidavit. This is precisely the same situation as in Littrell, where the court rejected a salary distinction based solely on the signing of a contract.
With the second proposition, participation, serving as the real distinction between those to be given bonuses and those not to be given bonuses, the board’s obvious intention was to reward the teachers who said that they were not being cooperative with the teachers’ association and punish the teachers who with commendable candor admitted such cooperation. A pay classification intended to provoke dissension among the teachers violates, rather than serves, public policy. Collective bargaining between public employees and their public employer is not against Illinois law or public policy (Chicago Division Illinois Education Association v. Board of Education (1966), 76 Ill. App. 2d 456 , 222 N.E.2d 243 ), yet the board’s action here was designed to cripple the teachers’ association in its role as bargaining agent.
Furthermore, the procedure used in obtaining the affidavit and rewarding the affiants was followed in such a helter-skelter fashion that some teachers who signed the affidavit were not paid the bonus and some who did not sign were paid. The board’s clumsy execution of their scheme undermines the intended rationality of the classification based on those supporting and those opposing the strike; the record clearly shows that the board acted arbitrarily.
A final disturbing aspect of this case is that public funds are used for the patent purpose of weakening the teachers’ association; an earlier period in labor history would have called the documents submitted to these teachers “yellow dog” affidavits. As I’ve noted, there is nothing illegal about public employee collective bargaining.
This litigation is but part of the vast number of cases that arise because of the absence of any meaningful legislation to deal effectively with strikes in the public sector. In our earlier opinion in this case, Board of Education v. Danville Education Association (1978), 59 Ill. App. 3d 726 , 376 N.E.2d 430 , we held that courts should not enjoin informational picketing unless the party seeking the injunction can prove that picketing will likely cause disruption. Courts by writ of injunction cannot compel teachers to teach, firemen to fight fires, nor cure other forms of “blue flu.” After the issues are finally resolved, as they ultimately must be, the parties usually want the judicial orders vacated and the courts to withdraw from any involvement.
Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127 , 340 N.E.2d 7 , and Board of Trustees v. Cook County College Teachers Union (1976), 62 Ill. 2d 470 , 343 N.E.2d 473 , have severely limited the scope of collective bargaining for teachers and their public employers; those cases held that bargaining pertaining to a board’s statutory, nondelegable discretionary power is illegal and unenforceable. The decisions thus limit an arbitrator’s power to remedy grievances that clearly fall within the scope of the collective bargaining agreement (see Stevens, Arbitrability in the Illinois Courts, 31 Arb. J. 1 (1976)), and determining “the permissible scope of collective bargaining agreements” becomes the overriding issue where boards are not required to bargain collectively and may even withdraw from bargaining after it has begun. Eisenhammer & Trizna, The Permissible Scope of Public Sector Bargaining in Illinois: A Proposed Solution, 12 J. Mar. J. Prac. & Proc. 509 (1979); see also Weisberger, The Appropriate Scope of Bargaining in the Public Sector: The Continuing Controversy & the Wisconsin Experience, 1977 Wis. L.R. 685.
In the Steelworkers Trilogy, the United States Supreme Court defined the narrow role that courts should play in deciding disputes that arise under collective bargaining agreements in the private sector. Arbitration is the preferred method of resolving those questions. By entering into a collective bargaining agreement the parties have erected a voluntary system of self-government; the arbitrator neutrally agreed upon by the parties is to apply the contract terms to the dispute. Thus, courts should not decide the merits of the grievance (United Steelworkers of America v. American Manufacturing Co. (1960), 363 U.S. 564 , 4 L. Ed. 2d 1403 , 80 S. Ct. 1343 ); courts should limit their inquiry to whether the recalcitrant party agreed to arbitrate the particular question (United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574 , 4 L. Ed. 2d 1409 , 80 S. Ct. 1347 ); courts should not review the merits of the arbitrator’s decision (United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593 , 4 L. Ed. 2d 1424 , 80 S. Ct. 1358 ).
In Board of Trustees v. Cook County College Teachers Union (1979), 74 Ill. 2d 412 , 386 N.E.2d 47 , the Illinois Supreme Court applied the principles enunciated in the Steelworkers Trilogy to grievance arbitration in the public sector. But because the steelworkers’ cases pertain to disputes under pre-existing contracts and and collective bargaining agreements, grafting the Triology onto this State’s public labor law cannot solve the threshold problems concerning the public employer’s duty to bargain, the types of bargainable issues, and the dilemma faced by employees at the bargaining table when any strike is illegal. These problems are much more settled in the private sector, and public employees in Illinois still await their labor bill of rights.
Various solutions have been proposed to settle matters in this field. Because the National Labor Relations Act specifically exempts public employees from its coverage ( 29 U.S.C. §152 (1973)), Federal legislation modeled after the N.L.R.A. has been proposed to fill this void; despite National League of Cities v. Usery (1976), 426 U.S. 833 , 49 L. Ed. 2d 245 , 96 S. Ct. 2465 , which held unconstitutional the extension of minimum wage and maximum hour provisions in the Fair Labor Standards Act to State and local employees, Federal legislation on this subject would probably be constitutional under the commerce clause, the spending power, or the enforcement provision of the fourteenth amendment. See Shaller, The Constitutionality of a Federal Collective Bargaining Statute for State and Local Employees, 29 Lab. L.J. 594 (1978).
By 1975, 24 States had laws dealing with collective bargaining by public employees (Dunham, Interest Arbitration in Non-Federal Public Employment, 31 Arb. J. 45 (1976)). Since 1945, when the first public employee labor relations bill was introduced in the State legislature, Illinois has repeatedly failed to enact legislation on this subject. (See Comment, 8 Loy. U.L.J. 209 (1976).) “Interest arbitration” refers to arbitrating disputes that arise as the parties are negotiating a collective bargaining agreement; “grievance arbitration,” also called “rights arbitration,” refers to arbitrating disputes that arise under a collective bargaining agreement. When the private employer and union cannot negotiate a collective bargaining agreement and contract, the parties apply economic pressures such as strikes and lockouts. But because most States consider strikes by public employees illegal, some form of interest arbitration becomes necessary to protect the employees’ bargaining position. Determining how “finality to a bargaining dispute can be brought about when the parties reach a true impasse” in their negotiations is the most difficult question faced in drafting legislation for public collective bargaining. (Dunham, 31 Arb. J. 45, 47.) Various methods of resolving an impasse include advisory fact-finding, fact-finding with voluntary binding arbitration, compulsory binding arbitration, and final-offer arbitration; some States permit strikes. (Dunham.) Some States use several methods as stages in the process of resolving impasses. (See Holden, Final-Offer Arbitration in Massachusetts, 31 Arb. J. 26 (1976).) Yet, compulsory interest arbitration, in whatever form, is not without its problems. Arbitrators of rights as opposed to interests by definition apply existing contract terms to the dispute; the arbitrator of rights operates within a voluntary system of industrial self-government, limiting himself to contract terms and not legislating, as it were, for the parties. Interest arbitration imposes a new and more difficult role on the arbitrator, requiring him to make policy choices that concern substantive questions such as salaries and work assignments. For these reasons many arbitrators oppose or are wary of interest arbitration. (See Bomstein, Interest Arbitration in Public Employment: An Arbitrator Views the Process, 29 Lab. L.J. 77 (1978).) In the absence of interest arbitration, public employee collective bargaining is vitiated unless the employees may strike when contract negotiations break down; without the right to exert economic pressure when no other means exist for resolving bargaining impasses, the employees are left to choose between their employer’s “best” offer and the inevitable injunction that accompanies an illegal strike.
Thus, I write in this case to note as best I can the urgent need for legislative action in the area of public employee strikes. The authority to issue and the issuance of injunctions solve no problem as this case indicates, unless, of course, the courts are empowered to and do impose contract provisions as a condition precedent to any injunctive relief. See Board of Education v. Springfield Education Association (1977), 47 Ill. App. 3d 193 , 361 N.E.2d 697 .