CHICAGO — A federal appeals panel has vacated a lower court’s ruling that said state law compels labor unions to represent all workers in a bargaining unit regardless of whether those workers are dues-paying union members.
In November 2019, U.S. District Judge Sharon Johnson Coleman granted summary judgment to Illinois’ state government in a legal action brought by International Union of Operating Engineers Local 150 and Local 150 President James Sweeney. The union challenged state laws and rules requiring unions to negotiate on behalf of all public employees, when exclusive bargaining rights exist, even if some workers choose to not pay union dues.
The action arose under the U.S. Supreme Court’s decision in Janus v American Federation of State County and Municipal Employees. In that case, the Supreme Court ruled in favor of Mark Janus, a non-union former Illinois state worker, who argued state rules requiring non-union state employees to pay so-called agency fees to a union violated workers’ constitutional speech and association rights.
Local 150, which represents about 3,300 municipal workers across 133 bargaining units in Illinois and Indiana, said the decision should also be read to allow the union to pick and choose who it represents. The union argued the Illinois Public Labor Relations Act abridges the speech rights of it and its paying members by forcing the union to represent workers who don’t financially support the organization. Local 150 said it spends $5 million per year to represent public workers in employment disputes, including paying nine workers to handle those disputes.
U.S. Seventh Circuit Court of Appeals Judge Michael Scudder wrote the opinion on the union’s appeal, issued March 8; Judges Ilana Rovner and Amy St. Eve concurred.
Many nonmembers, Scudder wrote, “have sent form letters reminding the union of its fair representation obligation. Local 150 thus sees Janus as enabling a kind of freeriding sure to strain the union’s limited resources.”
In defending the initial suit, Attorney General Kwame Raoul said Local 150 wasn’t responding to a worker who sought representation without paying agency fees, but rather trying to resolve a legal question Janus created. Coleman disagreed, finding Janus itself threatened the union’s rights and obligations. However, she ultimately dismissed the claims with prejudice, saying Janus only “addressed compulsory fees from nonmembers rather than the principles of fair and exclusive representation,” Scudder wrote.
While the panel agreed with Coleman’s perception of the lawsuit as pre-emptory, and indeed “a question courts are certain to confront in Janus’ wake,” Scudder wrote, “Local 150’s asking the question does not mean a federal court owes the union an answer — at least not now.”
The panel said the union failed to allege an actionable injury and therefore lacked standing to challenge the Illinois state law in federal court. Although there are circumstances in which a pre-enforcement challenge is proper, Scudder continued, Local 150 didn’t meet those standards.
“It is not enough to say that after Janus several employees left the union or that nonmembers reacted to the decision by no longer paying fair share fees,” Scudder wrote. “The union needs to go a step further and identify a nonmember who has demanded representation in a grievance proceeding. That Local 150 sees such demands around the corner falls short of showing an imminent injury.”
Further, the panel said, the union was wrong to name Raoul and the Illinois Labor Relations Board executive director as defendants, in that it failed to allege any state official threatened any enforcement actions against any union in light of Janus.
“Local 150’s real gripe is with Janus and what the union fears the Supreme Court’s decision portends,” Scudder wrote. “For obvious reasons, Local 150 did not sue the Supreme Court. But the Board and the attorney general are no more appropriate defendants at this juncture: neither party has taken any action risking or imposing any injury on Local 150.”
The panel said it would not issue an advisory opinion — “federal courts do not deal in advice,” Scudder wrote — but did say the union’s question remains unsettled and predicted resolution when there is an actual dispute between a union and a nonmember who demands fair representation.
With Coleman’s decision vacated, the panel remanded the complaint with instructions to dismiss for lack of subject matter jurisdiction.
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.