About Us  |  About Cheetah®  |  Contact Us

Union may challenge impact of Janus on its duty to provide fair representation to non-members

By Ronald Miller, J.D.

An Illinois union successfully argued that, after Janus, its statutory obligations requiring it to represent non-members without compensation violated its First Amendment rights. Because “fair share” provisions are no longer enforceable, the union alleged an injury far from speculative and ripe for judicial review.

Finding that the Supreme Court’s ruling in Janus v. AFSCME altered the nature of a union’s preexisting statutory obligations and created an imminent constitutional injury, a federal district court in Illinois denied the state of Illinois’ motion to dismiss a declaratory judgment action instituted by a union. The court agreed with the union that it will be compelled to speak on behalf of nonmembers, infringing on its First Amendment rights. However, the union’s challenge to statutory limitations on the scope of collective bargaining imposed by Illinois law, as violating its First and Fifth Amendment rights, was rejected. The court found that this claim was not ripe for pre-enforcement consideration, since the union claim did not reflect any changed factual circumstance (Sweeney v. Madigan, February 6, 2019, Coleman, S.).

Fair share fees prohibited. Following the Supreme Court’s ruling in Janus, which prohibits public employee unions from imposing “fair share” fees on non-members, a union official and union filed a suit seeking declaratory judgment that a portion of the Illinois Public Labor Relations Act (IPLRA) violated their First and Fifth Amendment rights.

Under the IPLRA, a labor union may become the “exclusive representative” for the employees of a particular bargaining unit for purposes of collective bargaining (5 ILCS 315/6(c)). In exchange for this exclusivity, the IPLRA requires that exclusive representatives must represent all public employees in a bargaining unit, including those who are not union members (5 ILCS 315/6(d)). To offset this burden, the IPLRA allows the union to charge non-member bargaining unit employees “fair share” fees to compensate for activities germane to the collective bargaining process. The IPLRA also imposes restrictions on the scope of matters subject to collective bargaining (5 ILCS 315/4).

Janus held that the imposition of agency fees did not satisfy the exacting scrutiny standard. In the wake of Janus, the union asserted that it will be required to represent non-members who refuse to compensate the union for its representation. It sought declaratory judgment that the sections of the IPLRA requiring them to represent non-members without compensation violate the First Amendment, that the requirements that they represent non-members in the absence of a fair-share agreement and those non-members with religious objections to paying the fair share fee, violates the First and Fifth Amendments, and that the limits on scope of collective bargaining violates its First Amendment rights.

Ripeness. Here, the defendants contended that the union’s claims were not ripe because there was no allegation that the union plans to engage in conduct that would trigger the filing of an unfair labor practice claim against it for violating the duty of fair representation and no indication how a state labor board or subsequent reviewing courts would rule on such a claim. However, the court observed that challenges to unconstitutional regulations are ripe for challenge prior to their enforcement when the injury in question is certainly impending.

Standing. In a somewhat similar vein, the court noted that in order to have standing to sue a plaintiff must be able to show (1) that she has suffered an “injury in fact” that is both concrete and particularized and actual or imminent, (2) that the injury is fairly traceable to the challenged action, and (3) that the injury is likely and not just speculative that a favorable decision will redress the injury.

First Amendment rights. Here, the union primarily contended that, as a result of Janus, the agency fee incorporated into the IPLRA will no longer be enforceable. Because the remainder of that statute, including the duty to provide fair representation to non-members, remains enforceable, the union asserted that it, and therefore, its membership, will be compelled to speak on behalf of non-members, infringing on their First Amendment rights. Indeed, the provisions of IPLRA in question expressly require speech and expressly limit the union’s ability to receive reimbursement for that speech from fair-share payments that the Supreme Court ruled unconstitutional in Janus. Thus, the union’s alleged injury was far from speculative, the court said.

The decision in Janus altered the nature of the union’s preexisting statutory obligations and created the imminent constitutional injury alleged to exist here. This injury is sufficient to establish both that standing exists and that there is a dispute ripe for resolution with respect to the unions’ claims arising directly from their duty of representation. Accordingly, the state was denied its motion to dismiss this claim.

Scope of collective bargaining. However, the union also challenged the limitations on the scope of collective bargaining that Illinois law imposes in light of Janus’ holding that all union speech is inherently political. The IPLRA provides that employers are required to bargain collectively about policy matters directly affecting wages, hours, and terms and conditions of employment, but not about “matters of inherent managerial policy,” such as “the functions of the employer, standards of services, its overall budget, the organizational structure, and the selection of new employees” (5 ILCS 315/4).

The union contended that, in the wake of Janus, these restrictions are no longer constitutionally tenable because they impose a constraint on the scope of the union’s speech. Here, the court found that this claim was not ripe for pre-enforcement consideration. This claim stemmed from dicta providing the union with the opportunity to advance novel legal arguments and did not reflect a changed factual circumstance. Accordingly, the court concluded that this claim was not appropriately the subject of a pre-enforcement challenge.