In advance of what they expect to be a stinging defeat for labor unions at the U.S. Supreme Court, a prominent Illinois union has countered with a suit of its own, claiming, if the court finds unions can be barred from forcing non-union workers to pay fees to the union for collective bargaining, so, too, the unions can’t be forced to include those workers in the deals they cut with government officials.
On Feb. 22, the International Union of Operating Engineers Local 150 and its president and business manager, James Sweeney, filed a complaint in Chicago federal court, asking the court to declare a state law compelling the union to negotiate on behalf of all workers in a bargaining unit, whether union members or not, violates the constitutional speech rights of the union and its dues-paying members.
James Sweeney | IUOE Local 150
“If … it violates the First Amendment right of a non-member to be compelled to pay fees to the union that is required by law to provide representation and services, it equally violates the rights of the union and its members to require them to use their money to speak on behalf of the non-member,” Local 150 wrote in its complaint. “This is so because the right to speak and the right not to speak are two sides to the same coin.”
On Feb. 26, the U.S. Supreme Court was scheduled to hear arguments in a case, docketed as Janus v American Federation of State, County and Municipal Employees, which has the potential to upend decades of case law upholding the right of unions to use state laws and rules to compel non-union workers to pay so-called “agency fees,” or “fair-share fees” to unions, ostensibly to compensate the unions for costs incurred in negotiating on behalf of union members and non-union workers, alike, in a particular workplace or bargaining unit.
The challenge, which seeks to overturn the precedent established in the Supreme Court’s 1977 decision in Abood v Detroit Board of Education, was initially introduced in 2015 by Ill. Gov. Bruce Rauner. However, when a federal judge ruled the governor lacked standing under the law to bring the lawsuit, he was replaced by plaintiff Mark Janus, a non-union state employee, who had objected to the forcible extraction of the agency fees from his paychecks.
In the initial action, Rauner claimed the mandatory collection of the fees violated the rights of about 6,600 of the state’s 46,000 workers. The lawsuit noted agency fees can amount to as much as 99 percent of the dues paid by union members.
Unions are technically forbidden from using the agency fees to fund political activities, such as donations to the lawmakers and other state elected officials overseeing the agencies in which they work and with whom they negotiate. However, the legal challenge asserts the money is still used to fund political speech, as it frees up other money for the unions to spend on political lobbying and other activities with which the non-union workers would disagree.
The Janus case comes about two years since the Supreme Court deadlocked 4-4 on a similar case out of California, following the death of conservative Justice Antonin Scalia in 2016. With the appointment of Justice Neil Gorsuch to the court by President Donald Trump last year, many legal observers expect the court this time to rule 5-4 in favor of the plaintiffs, and potentially declare unconstitutional laws and rules requiring non-union workers to pay fees to unions for representation they did not request.
In its lawsuit, Local 150 acknowledged “legal scholars, academics and commentators overwhelmingly agree that (Janus) will prevail on First Amendment grounds.”
But they said the ruling also will result in “reciprocal First Amendment protections for labor unions and members.”
Specifically, the union said a decision to overturn Abood would also require the federal courts to invalidate provisions in the Illinois Public Relations Act which place on unions a “’duty of fair representation’ to all employees in the bargaining unit,” whether union members or not.
“… All bargaining performed by labor unions pursuant to the IPLRA on behalf of non-members necessarily implicates the First Amendment because any bargaining with the government is treated as political and therefore as compelled speech,” Local 150 wrote. “Because labor unions are required to engage in bargaining and other activities that are owed under the duty of fair representation on behalf of non-members under the IPLRA, if Janus is decided as most commentators expect, the unions and their members would also suffer the same infringement of their First Amendment right to freedom of speech and association.”
The union’s lawsuit comes at the same time Local 150 also stepped into a challenge filed against the village of Lincolnshire in Chicago’s north suburbs, under which a Local 150 member asserted the village, under the reasoning spelled out in Janus, would have no authority to use taxpayer money to pay membership dues to the Illinois Municipal League, an organization which lobbies on behalf of the state’s cities and municipal governments and has in the past supported “anti-union” reforms sought by Rauner.
Local 150 is represented in both cases by its in-house counsel, and attorneys with the Illinois, Iowa Foundation for Fair Contracting, both based at adjacent addresses in suburban Countryside.