(By Martin H. Malin, Professor Emeritus, IIT Chicago-Kent College of Law, Arbitrator, and Member of the NAA.)

On November 1, 2021, a judge of the Cook County, Illinois, Circuit Court issued a preliminary injunction against the City of Chicago’s requirement that police officers be fully vaccinated against Covid-19 by December 31, 2021, or face being placed in a no-pay status.  Fraternal Order of Police, Chicago Lodge 7 et al. v. City of Chicago et al., No. 2021 CH 5276 (Cir. Ct. Cook County, IL. Nov. 1, 2021).  The injunction was issued pending arbitration between the City and the unions representing police officers, sergeants, lieutenants and captains.

The unions grieved the City’s requirement and demanded arbitration, contending that the vaccination requirement violated their collective bargaining agreements.  The unions argued that it was necessary to enjoin the requirement to preserve the status quo until an arbitrator ruled.  The judge agreed.

The injunction is commonly referred to as a reverse Boys Market injunction.  The name derives from the U.S. Supreme Court’s decision in Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235 (1970).  The federal Norris-LaGuardia Act withdraws jurisdictions from federal courts to issue injunctions in labor disputes except in very limited circumstances. In Boys Markets, the Supreme Court implied an exception where the union is striking over a matter subject to the grievance-arbitration procedure of the collective bargaining agreement.  The Injunction was necessary to preserve the integrity of the grievance-arbitration procedure by preventing the union from making an end run around the procedure by striking instead. For the exception to apply, the strike must be over a matter that is subject to the grievance-arbitration procedure.  Many states, including Illinois, have anti-injunction statutes similar to the Norris-LaGuardia Act.

Reverse Boys Market injunctions occur where an employer takes action that the union claims must be enjoined to maintain the integrity of the grievance-arbitration procedure.  For example, if an employer closes a facility and the union maintains that the closure violates the collective bargaining agreement, if the closure proceeds and the employer sells off equipment and the facility itself while the grievance is pending, an arbitrator who finds the grievance meritorious may not be able to award an effective remedy if the facility no longer exists. There may be no jobs to which the arbitrator could order the employer to reinstate the terminated employees.  So, the court might enjoin the closure pending the outcome of the arbitration.

In the Chicago Police case, the judge reasoned that if not enjoined, police officers would be compelled to get vaccinated and, if an arbitrator found the unions’ grievances to be meritorious, there would be no way to undo the unwanted vaccinations.  Consequently, the court reasoned, that it was necessary to enjoin the vaccination requirement to preserve the status quo until an arbitrator ruled.

This was a close case.  The court’s reasoning is understandable but the court easily could have denied the injunction.  The consequence of not being vaccinated by December 31 was being placed in a no-pay status, i.e. not being allowed to work.  If an arbitrator were to agree with the unions that the vaccination requirement violated their contracts, the arbitrator could have remedied the violation by ordering back pay to the employees for their time in a no-pay status.  Trial court judges have a great deal of discretion in deciding whether to issue preliminary injunctions.  They balance the competing equities and, in this case, this judge found that the balance weighed in favor of the injunction.