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Attacks Against Public Sector Workers And Unions in the United States Supreme Court and Beyond

May 23, 2017

By Lauren M. Hoye and Alaine S. Williams

Public employee unions and collective bargaining rights for public sector employees continue to be under attack in the courts by anti-labor groups. These groups challenge a union’s right to collect fair share fees from employees who are not union members but who still receive the benefits of a negotiated union contract and union representation on employment matters.  Under current law, it is constitutional to require non-members to pay a fair share fee to a union for all of the benefits and services the union negotiated on behalf of both members and non-members.

However, that may change soon. Janus v. AFSCME is the case that threatens to change the law with respect to the collection of fair share fees. This case arose in Illinois in 2015 when the newly-elected Governor Bruce Rauner refused to collect fair share fees from Illinois state employees because he thought the Illinois law authorizing collection of fair share fees was unconstitutional. Governor Rauner was dismissed from the case for lack of standing, but two non-members, one from an AFSCME bargaining unit and one from a Teamsters bargaining unit, intervened in the case and sought a ruling that the collection of fair share fees was unconstitutional.

The district court ruled against the plaintiffs and they appealed to the United States Court of Appeals for the Seventh Circuit. AFSCME and the Teamsters raised two claims in the Court of Appeals. The Teamsters bargaining unit member, Brian Trygg, had earlier filed a case against the Teamsters with the Illinois Labor Board. That case was ultimately resolved by the parties and as a result, the Teamsters argued that Trygg was precluded from re-litigating the constitutionality of the statute in federal court under the legal doctrine of claim preclusion. The Seventh Circuit agreed and dismissed his claim.

The other argument pertained to whether the district court erred in allowing Janus and Trygg to intervene in the original action at the same time that the court dismissed Governor Rauner’s underlying suit. The original action was filed by Governor Rauner as a declaratory judgment action. The defendants filed a motion to dismiss, arguing that the Governor could not use the vehicle of a declaratory judgment action to pursue such a claim under well-established law. The defendants further argued that Rauner did not have standing to pursue the constitutional claims. After the motion to dismiss was filed, Janus and Trygg sought to intervene in the case. The district court, in one order, granted the motion to dismiss Rauner’s action and further granted the motion to intervene. The unions argued that once the district court dismissed Rauner’s action, there was no underlying suit upon which Janus and Trygg could intervene. Therefore, the current action had to be dismissed. The unions argued that the court should dismiss the entire action, forcing an entirely new lawsuit to be filed. The Seventh Circuit did not agree.

The unions also argued that the case should be remanded back to the district court to establish a record on factual allegations raised by the plaintiffs, including potential defects in the fair share fee notice, that the data was too old, identification of issues that the unions bargained about over which the plaintiffs disagree, and the “dire financial condition of the state of Illinois” and how it was caused by collective bargaining. The court, again, did not agree.

On March 21, the Seventh Circuit affirmed the decision of the district court and dismissed the case. The plaintiffs will now file a petition for certiorari in the United States Supreme Court. A decision on whether the Supreme Court will hear this case will likely happen when the Court reconvenes in October, 2017. If the case is heard, argument will most likely occur in the winter of 2017 with a decision by June, 2018.

While Janus makes its way to the Supreme Court, there are numerous other cases pending in various federal and state courts across the county that raise similar attacks against public sector labor unions and the employees they represent. All of these cases threaten the security of the labor unions and the labor movement as a whole, and should be monitored closely.

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