Judge: Labor union can continue suit vs state over law requiring unions to rep non-union workers

By Jonathan Bilyk | Feb 6, 2019

A labor union will be allowed to continue to press its claims a recent U.S. Supreme Court ruling should mean it and other labor unions cannot be forced under state law to represent non-union state workers who choose not to pay union fees.

On Feb. 6, U.S. District Judge Sharon Johnson Coleman declined the Illinois Attorney General’s request to dismiss in full the lawsuit brought against the state by the International Union of Operating Engineers Local 150 and its president and business manager, James Sweeney.

The lawsuit asked the federal courts to strike down a state law compelling the union to negotiate on behalf of all workers in a bargaining unit, even if those workers decline to pay fees to the union.

The union argued the Illinois law violates the constitutional speech rights of the union and its dues-paying members.


Illinois Attorney General Kwame Raoul  

The lawsuit relied on last year’s U.S. Supreme Court decision in Janus v American Federation of State, County and Municipal Employees. In that ruling, the high court ruled in favor of Mark Janus, a non-union Illinois state employee, who argued state rules requiring him to pay so-called “agency fees” to the union, ostensibly to cover the costs of collective bargaining and representation, violated his constitutional rights.

In its lawsuit, Local 150 argued, if the Illinois Public Labor Relations Act violated the U.S. Constitution by requiring non-union workers to pay agency fees, then the law also violates the Constitution by forcing unions to represent non-union workers without the fees.

“… The right to speak and the right not to speak are two sides of the same coin,” the union argued in its lawsuit.

In response, the Illinois Attorney General’s Office, under former Illinois Attorney General Lisa Madigan, argued the union’s lawsuit was premature, because the state had not yet forced the union to represent anyone.

Judge Coleman, however, said the union’s concerns over the potential for future injury were more than hypothetical.

“Here, the plaintiffs primarily contend that, as a result of Janus, the agency fee incorporated into the IPLRA will no longer be enforceable,” Judge Coleman wrote. “Because the remainder of that statute, including the duty to provide fair representation to non-members, remains enforceable, the plaintiffs assert that they, and therefore their membership, will be compelled to speak on behalf of non-members, infringing on their First Amendment rights.

“Indeed, the provisions of the IPLRA in question expressly require such speech and expressly limit the plaintiffs’ ability to receive reimbursement for that speech to the fair share payments that the Supreme Court ruled unconstitutional in Janus.

“The plaintiffs’ alleged injury is accordingly far from speculative.”

The judge refused to dismiss this portion of the union’s case.

However, the judge said other claims by the union were on less sure legal footing.

Judge Coleman dismissed union claims Janus also conflicts with restrictions placed by the IPLRA law on the matters unions are allowed to collectively bargain with the state.

 The union had asserted the ILPRA’s prohibition on negotiations concerning “matters of managerial policy,” including “the functions of the employer, standards of services, its overall budget, the organizational structure, and the selection of new employees,” should be considered unconstitutional under Janus because “these restrictions … impose a constraint” on unions’ speech.

Judge Coleman said nothing in Janus affected any of those provisions within the state law.

She said that claim merely “stems from dicta providing the plaintiffs with the opportunity to advance novel legal arguments and does not reflect changed factual circumstance.”

The judge also dismissed the union’s claims the IPLRA amounts to an unconstitutional taking of property under the Fifth Amendment and a violation of the First Amendment’s freedom of association.

She said, because the Janus decision found such agency fees unconstitutional, those claims should be considered moot.

The union is represented in the case by attorneys from its Local 150 Legal Department and from the Indiana, Illinois, Iowa Foundation for Fair Contracting, based in neighboring offices in suburban Countryside.

The state is represented by the Illinois Attorney General’s Office, which is now led by Attorney General Kwame Raoul, who was inaugurated to replace Madigan in February.

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Organizations in this Story

Illinois Attorney General INDIANA ILLINOIS AND IOWA FOUNDATION FOR FAIR CONTRACTING International Union of Operating Engineers Local 150 State of Illinois U.S. District Court for the Northern District of Illinois U.S. Supreme Court

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