Illinois Governor Issues Executive Order Threatening Refusal to Comply with Fair Share Fee Law

On Feb. 9, 2015, Illinois Gov. Bruce Rauner issued an Executive Order directing the Illinois Department of Central Management Services and all other state agencies to violate state law as well as the state’s contractual obligations by refusing to turn over fair share fees withheld from the pay of bargaining unit employees who are not dues-paying members of the unions that represent them.

At the same time, Rauner sued the unions representing state employees in federal court, asking the court to declare that his Executive Order is lawful, and that the fair share fee provisions of the collective bargaining agreements negotiated by the state and the union defendants are unconstitutional.

Rauner’s plan hit a snag a few days later when state Comptroller Leslie Geissler Munger, who actually writes the checks to state employees and their union representatives, announced that she would not comply with the Executive Order. Both she and Illinois Attorney General Lisa Madigan agreed that fair share fees are constitutional under current law, and that the Comptroller has an obligation to follow the law.

Munger and Madison have good reason to question the governor’s actions. The Illinois Public Labor Relations Act (IPLRA) permits public employee unions to negotiate fair share agreements, requiring that bargaining unit employees who are not dues-paying union members, but nevertheless reap the benefits of the collectively bargained wages, benefits, and working conditions, must contribute their “fair share” toward the cost of union representation. For more than 35 years, the U.S. Supreme Court has held that this sort of fair share fee arrangement does not violate employee free speech rights. In fact, as recently as last June, the Court declined an invitation to overrule this precedent, as reported in our July 2014 newsletter.

Despite these facts, Rauner’s Executive Order claims that there is “no doubt” that the fair share fee provisions of the state’s collective bargaining agreements violate employees’ constitutional freedom of speech. The Executive Order directs state agencies to hold employee fair share fees in an escrow account until such time as a court determines that the fair share fee provisions are unlawful. The Executive Order does not say what will happen to those monies if the courts disagree with Rauner’s interpretation and continue to abide by the U.S. Supreme Court’s holdings that fair share fee agreements are, in fact, constitutional.

After the Controller announced that she would continue to comply with existing law, Rauner reportedly was working on a new plan to have the agencies under his jurisdiction refuse to provide fair share fee deductions to the Comptroller with other payroll information. At this date, it remains to be seen how, and whether, this plan will work.

Willig, Williams & Davidson is among the team of lawyers representing unions affected by Rauner’s actions. For more information about the potential impact of the Executive Order, or about how to lawfully implement a fair share fee arrangement in your state, contact one of Willig, Williams & Davidson’s Labor Department attorneys at 215-656-3600.

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