CPS dropped mask mandate without good-faith bargaining with Chicago Teachers Union: judge

Chicago Public Schools did not bargain in good faith with the Chicago Teachers Union before dropping its universal mask requirement in March, an administrative law judge decided last week.

This is a victory for CTU, albeit a hollow one. The judge recommended that CPS refrain from altering or rescinding any policy contained within its January safety agreement with CTU — but members have already overwhelmingly approved a new agreement for this school year.

“This decision, in some ways, comes as cold comfort, as the backward looking damage of the mayor and CPS’ bad faith and illegal behavior cannot be undone,” CTU said in a statement Monday. “But the decision sets an important precedent that should deter the district from disregarding its legal and contractual obligations to its employees and their school communities in the future, and aid the union’s ability to seek injunctive relief if CPS ever does so again.”

CPS did not have an immediate comment Monday on the judge’s decision, which was issued Friday — the same day the CTU-CPS COVID-19 agreement for the last school year expired.

An early 2021 COVID-19 safety agreement paved the way for CPS buildings to reopen in waves after schools were shuttered in March 2020. CTU and the district couldn’t come to a consensus on a new deal before the 2021-22 school year, when students returned for full-time, in-person learning.

As cases spiked in Chicago and around the country in early January, CTU members voted to refuse in-person work. A safety agreement was forged Jan. 12 to end the standoff that saw classes canceled for five days.

On Feb. 28, as the statewide school mask mandate was lifted, CTU told CPS it would not be willing to re-open its safety agreement unless the district met four requirements: delay the shift to a mask-optional policy until after the April spring break; make accommodations for students and staff with health concerns; establish a set of metrics whereupon a universal masking policy might need to be reinstated; and allow CTU members to work extra days to make up for missed instructional time and to do outreach for COVID-19 vaccination efforts.

Instead, CPS announced March 7 it was dropping its mask requirement the following week. CTU balked and quickly brought an unfair labor complaint before a state labor panel, which declined to take immediate action. Friday’s 22-page decision was based on arguments made during an April hearing.

The Chicago Board of Education “knew or should have known that convincing the union to modify the deal to take away what the union no doubt saw as a valuable piece of the deal was going to require something in exchange,” Judge Nick Gutierrez wrote in his decision. “Despite this, (the board) made no proposals on the four items (then-CTU President Jesse) Sharkey requested in exchange for reopening negotiations, or counterproposals on any other item.”

Gutierrez also rejected arguments CPS made about pressure from the legal battles waged by Republican attorney general candidate Thomas DeVore against COVID-19 mitigation strategies in schools. The Fourth District Court of Appeals has “cast significant doubt upon the theory that masking policies constitute a quarantine,” Gutierrez wrote.

Gutierrez’s decision came on the same day CTU members finished voting for a new safety agreement for this school year, which began last week. The union said its members voted by a 10-1 margin in favor of the deal. The House of Delegates — the union’s governing body that’s typically composed of 600 to 800 members — decided Wednesday to send the proposed agreement to the full membership with 94% of the vote.

The new accord is said to maintain most of the COVID-19 protocols in the last safety agreement, including the in-school testing program, school-level and district-level safety committees and school-based vaccination events.

“Safety has been our priority for staff and students since the onset of the pandemic. We are thrilled to see teachers, students, staff, and families back in schools this week and are dedicated to ensuring that everyone can safely proceed with teaching and learning,” CPS said in a statement last week after the House of Delegates vote.

The agreement does not include a universal masking requirement, like the last deal, but instead aligns with CPS’ policy of strongly recommending masking. Following district policy and guidance from the Centers for Disease Control and Prevention, unvaccinated close contacts of an infected person are no longer required to quarantine. They must mask for 10 days after exposure under the CTU-CPS deal.

That CPS has any COVID-19 protocols this school year has incensed some parents, who called into Wednesday’s monthly Chicago Board of Education meeting to complain during the public comment period.

“Masking is a form of quarantine. We expect a public apology from this board, principals, teachers and any staff that enforce and will enforce mask mandates,” one caller, Ya Her, said.

Those who test positive for COVID-19 are required to stay home for five days and wear a mask days six through 10. About 535 student cases and 470 adult cases have been recorded from Aug. 18 through Sunday, according to CPS data. Nearly 23,000 cases among 272,000 students and more than 9,000 adult cases, including the November death of an elementary special education classroom assistant, were reported the last school year.

tswartz@tribpub.com