Panel Rules Against Illinois Union in Dispute Over Representing Nonmembers

The Seventh Circuit found an Illinois union failed to show it had been injured by rules about workers opting out of membership dues.

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) — A federal appellate panel said Monday that an Illinois union’s request to block a state law requiring it to provide services to nonmembers is premature.

The Seventh Circuit judges found that the union had not shown any concrete injury and ordered the lower court to dismiss the case.   

The International Union of Operating Engineers Local 150 sued Illinois and its attorney general in 2018, preempting the U.S. Supreme Court’s 5-4 decision in Janus v. AFSCME.

Before that landmark decision, unions could require workers opting out of membership to still pay dues for collective bargaining activities but not political ones.

The Supreme Court found that any union activity could be considered political, and therefore those who still had to pay fees were being forced to support political speech.

Local 150, which represents about 3,300 public sector employees, said in its complaint that the Illinois law stating that unions still had to provide services such as handling grievances and arbitration for members and nonmembers alike was now unfair.

“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,” Local 150 said in its complaint.

The organization claimed the Janus decision created “free-riders” who would be able to use union services without paying and making dues-paying members foot the bill.

U.S. District Judge Sharon Johnson Coleman, a Barack Obama appointee, ruled in favor of the state in 2019, finding that avoiding free-riders is not a compelling government interest.  

Janus was a sea change,” the union’s attorney Dale D. Pierson said during oral arguments before the Seventh Circuit last September. “Once Janus creates a First Amendment right on the part of nonmembers not to support a union, the converse has to be true.”

Frank H. Bieszczat with the Illinois Attorney General’s Office argued that the union benefitted from being the exclusive representative of all its workers and the state’s requirement that it fairly represent both members and nonmembers was justified, fees or not. Bieszczat added that the high court “concluded that fees were not justified as part of this duty.”

In Monday’s opinion for the Chicago-based appeals court, U.S. Circuit Judge Michael Scudder vacated the district court’s summary judgment decision and recommended the case be dismissed due to a lack of subject matter jurisdiction.

“The union brought a claim that federal courts will have to answer in time. But we cannot answer the question now, for the union has not alleged any concrete and particular facts showing that it faces the post-Janus freeriding predicament animating its lawsuit,” wrote Scudder, a Donald Trump appointee. “Our resolving the substantial legal question in the abstract would offend the longstanding prohibition on federal courts issuing advisory opinions.”

Writing for a unanimous three-judge panel, Scudder said that while it is possible a union may be injured by having to represent nonmembers, Local 150 did not show that it had suffered such an injury.

Federal courts are limited to resolving concrete disputes between parties, not answering theoretical questions, the judge wrote.

“At the end of the day, we are left with a request for an advisory opinion. While we understand Local 150’s desire for additional legal certainty after Janus, federal courts do not deal in advice,” the ruling states.  

Scudder was joined on the panel by U.S. Circuit Judges Ilana Rovner, a George H.W. Bush appointee, and Amy St. Eve, a fellow Trump appointee.

Local 150’s attorney said the decision is “disappointing but not really unexpected.”

“You could tell from the questions [during oral arguments] that the court was going to focus on this jurisdictional issue,” Pierson said in a phone interview. “The Seventh Circuit has always been scrupulous about these jurisdictional questions. They have a long history of focusing on this basic question.”

Pierson said the union thought a facial challenge to the state’s fair representation law in light of the Janus decision “was a legitimate approach,” but “we did not have that individual person that had come forward and demanded representation yet.”

“It’s about the fact that Janus had written out the corresponding elements of the state law that required fair share fees,” he said. “We were trying to get this problem in front of a court as soon as possible.”

“I think the court’s decision is a thoughtful one. I’m just happy the judge recognized the problem,” Pierson said, adding that if a nonmember does demand services from the union there may be court action in the future. “I don’t think we’re done yet.”

The state’s attorney, Bieszczat, did not return a request for comment.

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