A federal judge has determined a state employee — notable for his public anti-union stances — can’t intervene on behalf of the state in a lawsuit it faces from a union leader asking courts to declare unions aren’t obligated to represent employees who refuse to pay membership dues.
On Sept. 12, Bryan Trygg, an Illinois Department of Transportation employee, filed a petition asking Judge Sharon Coleman to let him intervene in the lawsuit in which James Sweeney, president and business manager for the International Union of Operating Engineers Local 150, said a law forcing unions to represent all workers in a bargaining unit, even those that aren’t in the union, violates the constitutional speech rights of the union and its dues-paying members.
Trygg framed his argument against the U.S. Supreme Court’s decision this summer in the case known as Janus v American Federation of State, County and Municipal Employees, saying that ruling struck down several Illinois labor law provisions. Trygg had initially been involved in that action, but was removed as a plaintiff by a federal judge, leaving co-plaintiff Mark Janus as the sole remaining plaintiff when the case landed before the U.S. Supreme Court.
Trygg further argued, if Sweeney prevails, he and other non-union employees will lose legal protections governing the relationship to the unions designated by the state to represent them in labor matters.
“This injury, however, is not unique to Trygg any more than it is ‘unique’ to any other non-union public employee,” Coleman wrote. “It would be unfeasible to allow all public employees who might be potentially impacted by a change in the relevant labor laws to join in this action. Trygg’s injury also cannot be said to be direct and significant when, as here, the injury that he asserts is hypothetical and entirely dependent on the Teamsters’ subsequent intervening conduct.”
Coleman further said Trygg didn’t sufficiently show the actual defendants — Gov. Bruce Rauner, Attorney General Lisa Madigan and Illinois Labor Relations Board Executive Director Kimberly Stevens — wouldn’t adequately represent his interests in defending against Sweeney and Local 150.
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., said Madigan’s motions to dismiss Sweeney’s complaint as speculative fail to cite certain decisions, including decisions from the U.S. Seventh Circuit Court of Appeals 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.
Trygg also said 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.”
Coleman said Trygg couldn’t intervene without alleging Madigan “acted with gross negligence or bad faith in representing his interest. At most, however, the supposed inadequacy of representation that Trygg identifies amounts to no more than a strategic disagreement about the focus of the Attorney General’s briefing. Tactical disagreement, absent more, is not sufficient to establish inadequate representation.”
Judges are allowed to permit intervention, Coleman explained, when someone’s claim or defense shares common legal questions with named parties. However, she added, it’s generally recognized such “permissive intervention is unwarranted when the proposed intervenor’s interests are adequately represented by the government” as is the case in this matter.
Coleman did agree to use Trygg’s previously filed motion to dismiss as an amicus brief, but will accept no further filings without a motion requesting leave to do so.