Class action: Union must refund millions in unconstitutional fees taken from non-union IL state workers

By Jonathan Bilyk | May 1, 2019

Patrick Hughes, president of Liberty Justice Center, discusses new class action lawsuit during press conference at the Dirksen Federal Building in Chicago on May 1.   Youtube screenshot

A group of non-union Illinois state employees say their union illegally forced them to continue paying fees to the union, even when the union knew the fees were likely to be declared unconstitutional. Now, those workers have asked a federal judge to order the union to refund the money.

On May 1, attorneys with the Liberty Justice Center, of Chicago, and the National Right to Work Legal Defense Foundation, of Springfield, Va., filed suit in Chicago federal court against the American Federal of State, County and Municipal Employees Council 31 on behalf of nine named plaintiffs, and potentially 2,700 non-union state workers represented by AFSCME Council 31.

The lawsuit asks a judge to order AFSCME to refund all so-called “agency fees” or “fair share” fees collected by the union from May 1, 2017, until the U.S. Supreme Court formally declared those fees unconstitutional last June.

In all, the Liberty Justice Center attorneys estimated the total fees collected by AFSCME during that span amounted to more than $2 million. The plaintiffs said they are setting the start date for their refund demand period to May 1, 2017, “because this is what is permitted under the Illinois statute of limitations.”

“However, each of these workers and many others have paid much more in illegal union fees over the course of their public service careers,” the LJC said in its release.

“We’re fighting for these workers because they were put in an unconstitutional situation: Pay the union or lose your job. This was a gross violation of these workers’ rights to free speech and freedom of association, and we’re glad the Supreme Court agreed,” said Patrick Hughes, president of the Liberty Justice Center, in a prepared statement released May 1.

“Now it’s time for AFSCME to rectify the situation by returning to workers the money they should never have taken in the first place.”

AFSMCE responded to the lawsuit, calling it “frivolous.”

“Non-members received wage increases, health insurance coverage, vacation time and other benefits that the union negotiated,” AFSCME spokesman Anders Lindall said in the prepared statement responding to the lawsuit.

“They accepted these improvements and never objected to paying the related fees. The anti-worker, corporate-funded front groups prolonging this failed litigation want to use the courts to further their political attack on working people and our union. Their repeated lawsuits are nothing but a greedy grab for more.”

The litigation centers on the U.S. Supreme Court’s decision in the case known as Janus v AFSCME. In that case, the court’s majority found states trample the speech and association rights of their non-union employees by forcing them to pay the “fair share” fees to unions.

Janus was represented in the case by the same lawyers now bringing the current class action against AFSCME Council 31.

The fees were collected under state laws, which were based on the presumption the union would use the fees, which were only slightly discounted from full union membership dues, to offset a union’s bargaining costs.

Legal challenges to the fees first landed before the Supreme Court in 2014, when the high court ruled in Harris v Quinn to strike down compulsory union fees collected from in-home personal care assistants for those with disabilities and child care providers. In that case, workers were not directly employed by the state, and had never asked to be represented by a union. But the state said, because they received subsidy payments from the state on behalf of those to whom they provided care, a state law passed by the Democrat-dominated Illinois General Assembly and signed by Democratic Gov. Pat Quinn should require they be represented by the Service Employees International Union. The SEIU was then empowered to receive the union fees extracted from the subsidy checks by the state.

State worker Mark Janus then became the lead plaintiff on a lawsuit challenging the collection of fees from non-union state employees, as well, setting the stage for the Supreme Court to declare all agency fees unconstitutional.

Even as the Janus case was making its way through the courts, the Liberty Justice Center and others filed suit against the SEIU and state of Illinois, asking the courts to order the unions to refund $32 million in fees that had been taken prior to 2014.

Federal district judges in Chicago have turned aside those class action refund demands, asserting the unions collected the fees in “good faith,” acting in reliance on the law. Further, the judges said any refund demands could not advance as a class action, because it would be impossible to tell which of the home caregivers actually wanted to pay the fees and which ones did not.

Those rulings have been upheld twice by the U.S. Seventh Circuit Court of Appeals.

However, the caregivers have appealed the case to the U.S. Supreme Court, asking the court to take on the case and “make it clear that unions are not free to keep monies they unconstitutionally seize from individuals without consent,” as they argued in a petition filed Feb. 25.

The SEIU and state are scheduled to respond to the caregiver plaintiffs’ filing by May 20.

At the same time, Mark Janus asked the district court to order AFSCME to refund his money.

In a March ruling, however, U.S. District Judge Robert Gettleman echoed the decisions against the home caregivers, also finding the union had collected the fees in “good faith,” in reliance on state law and the former legal precedent first established in 1977 by the U.S. Supreme Court.

In a press conference announcing the lawsuit, Hughes said attorneys for Janus have appealed that decision to the Seventh Circuit, and intend to appeal to the Supreme Court, if necessary.

Hughes said the Supreme Court has never addressed or upheld the “good faith” defense, and said plaintiffs believe “ultimately, the Supreme Court will decide this issue.”

“Once an action has been deemed to be unconstitutional, it is deemed to be always unconstitutional,” Hughes said.

He said the Liberty Justice Center and National Right to Work Legal Defense Foundation have found plaintiffs in other states who intend to bring similar class action cases. Hughes said in other states, the statute of limitations can allow recovery of unconstitutional fees as much as 6 years in the past.

Hughes said there could be “hundreds of millions of dollars … that public sector unions collected and kept” on the line, should similar lawsuits proceed across the U.S.

Named plaintiffs in the Illinois action include Blake Leitch, an Iraq war veteran and Charleston resident, who formerly worked in the Illinois Department of Veterans Affairs. At the Wednesday press conference, Leitch said AFSCME collected $2,500 in fees from his pay.

Other plaintiffs include Sheri Lash, of Bloomington, who works in the Department of Children and Family Services; Beth Pollo, of Orland Park, who works in the Department of Employment Security; Heidi Parent, of Tinley Park, who works for the Illinois State Police; Jim Sodaro, of Springfield, who works in the Department of Innovation Technology; Toni Head, of Benton, who works in the Division of Rehabilitative Services; Connie Ameter, of Olney, who works in the Department of Human Services; Tairance McGee, of Chicago, who works in the DHS; and Jack DeHeve, of Springfield, who works in the Illinois Emergency Management Agency.

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Organizations in this Story

Afscme IL Council 31 Illinois Emergency Management Agency Illinois State Police Liberty Justice Center National Right to Work Foundation State of Illinois U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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