Saying Illinois’ attorney general’s defense is “inadequate” and is “bordering on malpractice,” an Illinois state employee who factored in the court action that led to the U.S. Supreme Court’s recent decision to strike down rules requiring non-union workers to pay fees to unions has again jumped into a federal court action, this time asking a judge to allow his legal team to defend the state against a union’s attempt to secure a court order striking down labor laws requiring them to represent all workers in a collective bargaining unit.
On Sept. 12, Bryan Trygg, an Illinois Department of Transportation employee, filed a petition in Chicago federal court, asking the court to allow him to intervene in the lawsuit brought against the state of Illinois by plaintiff James Sweeney, president and business manager for the International Union of Operating Engineers Local 150.
In that lawsuit, Sweeney and the union asked the court to strike down a state law compelling the union to negotiate on behalf of all workers in a bargaining unit whether union members or not, saying that requirement violates the constitutional speech rights of the union and its dues-paying members.
Filed in February, the lawsuit anticipated the U.S. Supreme Court’s decision in the case known as Janus v American Federation of State, County and Municipal Employees. This summer, the high court found in favor of Mark Janus, a non-union state employee who argued state rules requiring him to pay fees to the union, ostensibly to cover the costs of collective bargaining and representation, violated his constitutional speech and association rights. Trygg had also initially been a co-plaintiff with Janus on that case, but was removed by the U.S. Seventh Circuit Court of Appeals before the case was sent to the Supreme Court.
In its lawsuit, Local 150 asserted, if, as the Janus decision requires, non-members can’t be compelled to pay fees to the union, the union should not also be compelled to “use their money to speak on behalf of the non-member” by the Illinois Public Labor Relations Act.
In response, Illinois Attorney General Lisa Madigan’s office, representing the state, has asked the court to dismiss the lawsuit. In a memorandum authored by Illinois Assistant Attorney General Thomas A. Ioppolo and filed Aug. 10 in support of that motion, Madigan’s office argued essentially Local 150 filed too soon, before any actual harm was done to the union, causing its arguments to be based on claims that “remain at best hypothetical.”
“Like many unions that operate in the public sector, the Union is worried about the consequences of the Janus decision,” the attorney general said. “But that does not give it the right to file a suit seeking an advisory opinion about a completely different statute and different issues of law that have not yet arisen and may never arise.”
Further, Madigan’s deputy asserted the Supreme Court already addressed, in its Janus decision, Local 150’s assertions, as the Supreme Court held unions would still benefit substantially from serving as “exclusive representative” for a state bargaining unit, greatly outweighing any loss from having to represent employees who refuse to pay them.
“The Union’s speculative argument that, if it loses its fair shares fees, its own First Amendment associational rights would be violated by being compelled to represent non-union member seems unlikely to go anywhere, assuming such an actual case with real facts were to be brought,” Ioppolo wrote.
The union responded to the attorney general’s dismissal request on Sept. 7, asserting it was being harmed, as it is now required to represent non-union members “without compensation,” and is seeking clarification of the legal question before testing the waters in the post-Janus legal landscape by cutting off non-members.
“Union Plaintiffs ask this to Court (sic) to consider the legal question of whether Union Plaintiffs have the same First Amendment rights as Janus granted to non-members,” Local 150 wrote in its response.
In his motion to intervene, Trygg, represented by attorneys Joseph A. Morris, of the firm of Morris & De La Rosa, of Chicago, and Milton L. Chappell, of the National Right to Work Legal Defense Foundation, of Springfield, Va., asserted the attorney general’s attempt to argue these points falls short.
Trygg’s lawyers noted Madigan’s filings fail to cite certain decisions, including Seventh Circuit appellate decisions in two other cases, in which Trygg’s lawyers say judges “addressed and squarely rejected (Local 150’s) Takings Clause claims twice.”
“The failure of Defendants (Madigan) to cite to this recent, binding circuit precedent is clearly evidence that their representation is inadequate and bordering on malpractice,” Trygg’s lawyers wrote.
Further, Trygg asserted Madigan should also be disqualified from defending the case by her past statements in support of unions’ position in the Janus case, and her participation in a statement from the Democratic Attorneys General Association “criticizing the decision.”
"Her intervention in Janus and subsequent arguments in support of the union’s position provide additional context for her lackluster defense of Illinois’ labor laws post-Janus and makes it more evident that Movant’s (Trygg’s) interests are inadequately protected by the Defendants (Illinois Attorney General’s office),” Trygg wrote.
Trygg said, should the union succeed in its case because the attorney general fails to, as he sees it, properly defend the case, he and other non-union state workers would be required to head back to court to litigate to prevent the union from “discriminating” against non-union members of the collective bargaining units the state has granted them the right to exclusively represent.
Trygg said this would mean he, like other non-union members, “would be prohibited from speaking with his employer with respect to his terms and conditions of employment because he has an exclusive bargainining representative, but that ‘representative’ would have no duty to protect his interests and could actively discriminate against him and other non-members of the union within the bargaining unit.”
Along with his motion to intervene, Trygg’s lawyers filed a separate motion to dismiss, asking the court to toss the union’s lawsuit.
The motions remain pending.