A challenge to the power of state worker labor unions to
extract so-called “fair share” fees from non-union workers could be ticketed
for the U.S. Supreme Court, where opponents of the fees hope a
conservative-majority court could overturn a longstanding legal precedent used
by unions to justify their forcible collection of fees from public employees
who refuse to pay formal union dues.
On March 1, attorneys representing two state workers squared
off before a three-judge panel of the U.S. Seventh Circuit Court of Appeals in
Chicago, against lawyers representing the American Federation of State, County
and Municipal Employees (AFSCME) and a Teamsters local over the two state
workers’ claims the collection of those fees are unconstitutional.
In arguments, lawyers for the plaintiff workers, Mark Janus
and Brian Trygg, asked the court to find against them, so they can appeal the
case to the Supreme Court.
In September, U.S. District Judge Robert W. Gettleman
dismissed Janus and Trygg’s lawsuit, finding the plaintiffs’ case is doomed
under existing precedent established in the Supreme Court’s 1977 ruling in
Abood v Detroit Board of Education, which had allowed the collection of “fair
However, attorney William Messenger, of the National Right
to Work Legal Defense Foundation, echoing a brief his foundation filed in the case along
with the Chicago-based Liberty Justice Center, agreed with Judge Gettleman’s
reasoning, and explained the plaintiffs are asking for the chance to take the
matter to the Supreme Court in the hope of persuading the high court to
overturn the Abood precedent.
“Only the Supreme Court can grant the relief they seek,” Messenger
said Wednesday during oral arguments before the three Seventh Circuit judges.
The case had landed in federal court in 2015, when Illinois
Gov. Bruce Rauner initially filed suit to stop state worker unions from taking
the fees from the paychecks of state workers.
Unions have argued the fees are needed to offset the costs
they incur in collective bargaining, which they claim benefits all employees,
whether they are full members of the union or not. They assert workers who
benefit from their negotiations without contributing dues are essentially
In his legal challenge, however, Rauner had argued the mandatory
collection of the fees violates the constitutional rights of state workers who
do not wish to associate with the unions. While unions are not permitted to use
the fees to fund explicitly political activities, the lawsuit argued the work
of a union representing government workers cannot be separated from the union’s
political activities, since the union deals with lawmakers and other government
officials as a matter of course.
According to Rauner’s lawsuit, about 6,600 of the state’s
more than 46,000 employees make fair share payments, rather than pay union
dues. The lawsuit noted fair share fees can amount to as much as 99 percent of
the dues paid by similar workers who are union members.
In May 2015, Gettleman threw Rauner off the litigation,
saying the governor lacked standing to represent the fair share fee-paying
But at the same time, the judge granted permission to Janus
and Trygg to intervene in the case, and essentially take Rauner’s place. As
state employees who pay fair share fees, Janus and Trygg satisfied the standing
question, allowing the case to go forward.
As Rauner’s legal challenge entered the courts, the U.S.
Ninth Circuit Court of Appeals ruled in a separate case that public unions are
entitled to the fair share fees, despite a challenge from public workers in
California, who similarly argued the fee collection violated their constitutional
Before the case could be decided by the U.S. Supreme Court,
however, Supreme Court Justice Antonin Scalia died, resulting in a 4-4 deadlock,
allowing the Ninth Circuit’s ruling to stand.
Attorneys for Janus and Trygg have indicated they would like
to take the Illinois case to the Supreme Court, to give the court - which could
again have nine justices, should the U.S. Senate approve the nomination of federal
Appellate Judge Neil Gorsuch to the court to replace Scalia – another chance to
take action on the question of whether Abood should be allowed to stand.
Seventh Circuit judges Richard Posner, David Hamilton and
Diane Sykes did not question Messenger during oral arguments.
However, they did interrogate attorneys for AFSCME Council
31 and Teamsters Local 916.
AFSCME’s attorney, John West, argued the court, before
sending the matter onto the Supreme Court, needed first to rule on whether
Janus and Trygg could actually intervene in the case after Rauner had been
Judge Posner, however, sharply questioned that rationale,
calling the arguments little more than “trivial,” “legalism” and “fussing.”
“What is the benefit to society of throwing this case out,
and forcing them to file a new complaint, rather than treating the intervention
motion as a complaint?” Posner said.
Attorney Carl Draper, representing the Teamsters, argued
Trygg should be tossed from the case, as Trygg had already sued over his fair
share fees, and had been allowed under a ruling from an Illinois court, to
donate his fair share fees to charity, rather than pay them to a union.
Judge Hamilton questioned this reasoning, asking Draper if
he believed Trygg would not benefit from a Supreme Court ruling undoing the
Abood decision – the precedent underpinning the ruling requiring him to donate
Hamilton asked Draper if it was his position Trygg should be
made to “indefinitely … abide by a settlement under Abood, decades after Abood
had been declared invalid?”
In response, Draper said he continued to believe Trygg’s claim
should be disallowed, as Trygg did not raise his constitutional challenge to
the fair share fee rules during his state appellate case.
“He had his first bite at the apple,” Draper argued.
In rebuttal, however, Messenger said Trygg’s challenge would
not have been allowed before either the Illinois Labor Relations Board or the
Illinois Appellate Court, as “neither had jurisdiction over that claim.”
The Seventh Circuit panel took the matter under advisement,
and is expected to render an opinion at a later date.