Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Order reversed and cause remanded
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
The issues involved in these two cases are in substance identical and we have consolidated the cases for hearing on appeal. On a previous appeal (Peters v. South Chicago Community Hospital, 92 Ill. App.2d 37, 235 N.E.2d 842), this court held that the trial court could not order the defendant hospitals to recognize and bargain with the plaintiff union. The issue now before us is whether the cross-petition of the defendants seeking an injunction to restrain members of the plaintiff union from striking or picketing the hospital premises was properly denied. A statement with respect to the issues on the first appeal is essential to an understanding of the issues presently involved.
Plaintiffs are officers of the Hospital Employees Labor Program (HELP). HELP is a labor union formed and sponsored jointly by the General Service Employees Union, Local 73, Building Service Employees International Union, and Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Defendants are hospitals chartered under the Illinois General Not-for-Profit Corporation Act.
Plaintiffs brought two separate class actions on behalf of themselves and members of the union. They sought injunctions against the hospitals to restrain them from intimidating and/or coercing their respective employees with regard to union membership and activity and to compel the hospitals to meet with union representatives for the purpose of negotiating and entering into a collective bargaining agreement. The hospitals filed cross-petitions for a declaratory judgment and an injunction restraining plaintiffs from striking or picketing the defendant hospitals. At the close of the first hearing on February 15, 1967, the court entered duplicate orders granting temporary injunctions, both prohibitory and mandatory, as follows:
"A. The parties shall meet forthwith for the purpose of selecting an impartial person or agency to supervise and conduct an election to determine whether a majority of the employees of defendant employed in the following capacities desire to be represented by plaintiffs for collective bargaining purposes and the parties shall participate in such an election:
"Licensed practical nurses, nurses aides, orderlies, ward clerical employees, assistant unit managers, laboratory attendants, medical and X-ray technicians, occupational, inhalation and physical therapists, pharmacy helpers and employees in the housekeeping, maintenance and food service departments.
"B. The parties have an equal right to communicate with the said employees of defendant to attempt to persuade them to join to support the Union or vote in favor of collective representation by plaintiffs or to refrain from so doing.
"C. The parties shall not intimidate or coerce said employees in any manner or by any means whatsoever in connection with their right to join or support the Union or to vote in favor of collective representation by plaintiffs or to refrain from so doing.
"D. Pending further order of this Court, plaintiffs shall not engage in or authorize picketing or a strike of the hospital premises involved herein."
On appeal we reversed as to Paragraphs A, B and C of the order, but with respect to Paragraph D made no decision because its validity was not then contested. On the hearing following the reversal the trial court vacated Paragraph D over the objection of defendant hospitals, and the sole issue now before this court is the right of the employees involved to strike and picket the hospitals. It is from that order that defendants now appeal.
Defendants' first contention is that plaintiffs failed on the occasion of the prior appeal to file a cross-appeal contesting that portion of the original order known as the "no-strike, no-picketing portion of the injunction" (Paragraph D) and thereby waived the point and are bound by the original no-strike, no-picketing injunction. The two cases defendants cite, Muren Coal & Ice Co. v. Howell, 217 Ill. 190, 75 N.E. 469, and Jackson v. Glos, 249 Ill. 388, 94 N.E. 502, are clearly distinguishable. In both cases the court held that an appellant may not urge as error that which he failed to assign as error in a previous appeal with respect to the same issue. In the instant case plaintiffs are not challenging the correctness of the trial court's original order. Rather, they as appellees are defending the propriety of the court's subsequent order which vacated Paragraph D of the prior order after other portions on which Paragraph D was conditioned had been reversed on appeal.
Moreover, the original order of the trial court which granted the temporary injunction was based on the pleadings. Such an order is provisional in character and may be vacated at any time at the discretion of the chancellor. 21 Ill Law and Practice, Injunctions, §§ 132, 137; Ar-Tiks Systems, Inc. v. Lark Sales Co., 12 Ill. App.2d 304, 139 N.E.2d 308. The failure of plaintiffs to file a cross-appeal contesting the validity of that part of the order is not a bar to the trial court's subsequent vacation of the order.
We proceed to consideration of defendants' second contention, that the orders vacating the no-strike, no-picketing portions of the injunctions are erroneous as a matter of law. They argue that as applied to not-for-profit hospitals, strikes and peaceful picketing, having for their purpose the pressuring of the hospitals into recognition of the union as the representative of its employees, are contrary to public policy and that the Anti-Injunction Act (Ill Rev Stats, c 48, § 2a (1967)) does not prohibit the issuance of an injunction against such a strike. The union contends that the Anti-Injunction Act applies to privately owned hospitals, even though they are not-for-profit corporations, and that the public policy of the State is to permit peaceful picketing and strikes where public employment is not involved.
The Anti-Injunction Act prohibits the issuance of injunctions in any case involving disputes concerning the conditions or terms of employment to enjoin persons from ceasing to perform any work or labor or from peaceably and without threats or intimidation persuading others to do so or from being on any public street for the purpose of obtaining or communicating information or peaceably persuading others. Ill Rev Stats, c 48, § ...