Illinois Union Argues Against Representing Nonmember Workers

People gather at the U.S. Supreme Court awaiting a decision in an Illinois union dues case, Janus vs. AFSCME, in June 2018. (AP Photo/J. Scott Applewhite)

CHICAGO (CN) — An Illinois labor union told a panel of federal judges in Chicago on Tuesday that it is being forced to use its funds to represent workers who have opted out of being members and no longer have to pay dues, in violation of its constitutional rights.

The International Union of Operating Engineers Local 150 argued before the Seventh Circuit against continuing to provide services for nonmember workers.

The IUOE filed a federal lawsuit in 2018 in anticipation of the U.S. Supreme Court decision several months later in Janus v. AFSCME barring public labor unions from collecting “fair share” fees from workers who have opted out of membership.

Before the 5-4 decision, unions representing public sector employees could require nonmembers to pay dues that would cover only collective bargaining activities, but not political ones.

The high court agreed with the plaintiffs in Janus that any collective bargaining activity could be considered political, and therefore nonmembers should not have to pay dues that would support that speech, overruling a 1977 decision saying the opposite.

However, under Illinois law, if a union is the exclusive representative of all workers in its sector – including nonmembers who no longer fund services like pay negotiations and help with grievances and arbitration – it must continue to represent both members and nonmembers.

The IUOE, representing about 3,300 public sector workers in Illinois, says in its complaint that “forcing unions to advocate on behalf of non-members who object to the very reasons they exist is a severe violation of unions’ First Amendment rights to association.”

“If it violates the First Amendment right of a non-member to be compelled to pay fees to the union that is required by law to provide representation and services, it equally violates the rights of the union and its members to require them to use their money to speak on behalf of the non-member,” the complaint adds. “This is so because the right to speak and the right not to speak are two sides to the same coin.”

The union claims the Janus decision creates “free-riders” who take advantage of the benefits unions fight for but put the sole financial burden on dues-paying members, and the organizations should not have to represent them.

U.S. District Judge Sharon Johnson Coleman, a Barack Obama appointee, ruled in favor of Illinois last year, finding that avoiding free-riders is not a compelling government interest.  

The union’s oral arguments Tuesday narrowed its original focus to processing and representing nonmembers in grievances. Attorney Dale D. Pierson said the union is being forced to pay to do so now that fair share fees have been banned.

The state’s exclusive representation rules compel unions to pay for nonmembers’ speech and to associate with them, which is unconstitutional, according to the union’s brief filed with the Seventh Circuit.

“The union and its members do not have an obligation anymore to subsidize the speech of nonmembers,” Pierson said during the hearing.

Janus was a sea change,” he added. “Once Janus creates a First Amendment right on the part of nonmembers not to support a union, the converse has to be true.”

Pierson said that after the Supreme Court decision, at least 30 IUOE members sent letters of membership resignation or stopped paying fair share fees, even stating in their letters that the union had to continue representing them.

The appellate panel – comprised of U.S. Circuit Judges Illana Rovner, a George H.W. Bush appointee, and Michael Scudder and Amy St. Eve, both appointed by President Donald Trump – questioned why the nation’s high court would issue a ruling that results in a violation of rights.  

“It’s very odd in my view for a Supreme Court decision to ripen and create a constitutional injury,” Scudder said, adding that he could not think of any cases in which such a decision led to a violation of constitutional rights.

Illinois officials argued in their brief that the Supreme Court already addressed the issue, confirming that Janus had no effect on state rules governing collective bargaining aside from fair share fees.

Frank H. Bieszczat with the Illinois Attorney General’s Office pointed out that the Janus decision “concluded that fees were not justified as part of this duty” of fair representation, in which nonmembers benefit from a union’s collective bargaining.

“We know that the court did not think it was creating a constitutional problem because it directly said so,” Bieszczat said.

“They’re asking to strike down the duty of fair representation,” he added, but said “no union is ever compelled to seek exclusive representative status. It voluntarily does that.”

Once a union becomes the exclusive representative of its sector, it is “representing the bargaining unit as a whole,” Bieszczat said, and instead of monetary payment from nonmembers it gains control of bargaining and employee data, among other benefits.

“We don’t see grievance handling as the same as collective bargaining,” Pierson answered, agreeing with Judge Rovner that a union may risk unfair labor practice charges if it chooses to pursue paying members’ grievances over those of nonmembers.

“If our choice is between an unfair labor practice charge and representing somebody for free, we are being compelled to do it,” he said, asking the court to remand the case and allow the union to file an amended, narrowed complaint.

The panel did not say when it would issue its decision on the union’s appeal.

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