International Union of Operating Engineers Local 150 saw Wednesday’s U.S. Supreme Court decision in Janus v. AFSCME coming months ago.
Anticipating the justices’ 5-4 ruling in favor of Illinois state worker Mark Janus striking down so-called “fair share” fees, the union filed a federal lawsuit, seeking to essentially get around the eventual ruling in Janus.
The Supreme Court on Wednesday sided with Janus, a child support specialist who earns $71,000 per year, according to state records. Janus claimed that paying the union the fair share fees from his paycheck every month was a violation of his First Amendment rights, and the majority on the court agreed.
But in its February lawsuit, filed just days before oral arguments in the Janus case, Local 150 claimed that unions, too, should be able to exercise their First Amendment rights to not represent those workers who want to opt out of unions and avoid paying into a public sector union’s fund used to support collective bargaining and to represent workers in arbitration.
“If…it violates the First Amendment right of a nonmember 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 nonmember,” the original complaint said. “This is so because the right to speak and the right not to speak are two sides to the same coin.”
In the 22 states without right-to-work laws, state labor laws mandate all public sector employees within a similar job area to be represented by the same union. The Illinois Public Labor Relations Act requires unions to represent nonmembers in negotiations and other matters, like arbitration.
Typically, “fair share” union fees amount to about 80 percent of what a union member would pay in dues. Unions use the remaining 20 percent of dues to fund political activities.
But Janus — and Gov. Bruce Rauner, who was the original plaintiff in the case filed just weeks into his term as governor in early 2015 — argued that all union activities, including contract negotiations are inherently political.
Local 150’s complaint seeks to be freed from its obligation to represent nonmembers under Illinois labor law, and change the Illinois Public Labor Relations Act in order for all public sector unions to be freed from having to cover “free riders” who would refuse to join a union in a post-Janus world.
Dale Pierson, the in-house attorney for Local 150, told The Daily Line Wednesday that the case was put on hold in order to wait for the Supreme Court’s decision in Janus, and that the parties are due for a status hearing in late July. Pierson said that Wednesday’s ruling leaves public sector unions holding the bag for those who refuse to pay for the services that the unions provide.
“Now [nonmembers] don’t have to pay anything toward costs of achieving those benefits,” Pierson said. “We say that’s fundamentally unfair.”
But Local 150 acted alone when filing the case this winter, and other major public sector unions in Illinois, including AFSCME, are not pleased with the possible ramifications a case like Local 150’s could cause.
“Not only AFSCME nationally but our partners the American Federation of Teachers, the National Education Association and the SEIU have jointly taken a position opposed to any efforts to undermine democracy in the workplace,” AFSCME Council 31 spokesman Anders Lindall said Wednesday. “When employees in a workplace vote for union representation, all workers are represented equally. Anything less turns workers against each other and fuels a race to the bottom.”
Pierson, however, said he doesn’t understand the reluctance on the other unions’ part to embrace Local 150’s lawsuit, and argued that their concerns are overblown, pointing to legislation passed in New York state this past spring, which essentially gives unions the option not to represent nonmembers.
“A statute like that doesn’t get passed in New York state without support of ASCME and SEIU,” Pierson said. “What we’re looking to do is to restore fairness…we’re puzzled a little bit about the AFSCME and other public sector unions’ concerns.”
Justice Samuel Alito even cited options like New York’s in his majority opinion Wednesday, writing that “There is precedent for…arrangements” in which individual nonmembers of a union could be required to pay for the services provided by a union or “could be denied union representation altogether.”
“Some states have laws providing that, if an employee with a religious objection to paying an agency fee ‘requests the [union] to use the grievance procedure or arbitration procedure on the employee’s behalf, the [union] is authorized to charge the employee for the reasonable cost of using such procedure,’” Alito wrote in a footnote, quoting from a California labor law. “This more tailored alternative, if applied to other objectors, would prevent free ridership while imposing a lesser burden on First Amendment rights.”
Ed Maher, a spokesman for Local 150, said Alito’s suggestion “seems to leave crack to charge nonmembers for grievance cost, arbitration costs.”
Pierson said that charging nonmembers for such services — which are as high as $5,000 for an arbitrator and $1,000 for one day of work for a court reporter — may cause a nonmember to “think twice about not paying dues,” and to see the dues as an “insurance policy” instead of money taken from a paycheck.
The Rauner administration moved quickly Wednesday to notify state workers of their new options post-Janus, telling employees via mass email that “effective immediately, the state will stop deducting ‘fair share’ fees from the paychecks of state employees who are not union members.”
Acting Director of Central Management Services Tim McDevitt also told workers in the email they could opt out of their unions at any time, and provided a link to a state website where employees can notify his office of their choice to do so, or find out what is being taken out of their paychecks already.
A competing email sent from AFSCME Associate Director Tracey Abman to state workers’ personal email addresses characterized McDevitt’s letter as “an attempt to further the agenda Bruce Rauner has had since day one, to weaken unions in state government, especially AFSCME.”
“For more than three years our union has refused to bow down to Rauner’s demands to freeze steps, double health insurance costs, and weaken rights on the job,” Abman wrote, alluding to benefits AFSCME is negotiating for in its current contract negotiations with Rauner, which are currently tied up in the court system.
On the steps of the Supreme Court Wednesday, Rauner told reporters that the decision is “not anti-union,” echoing back to repeated statements he made after being sworn into office in 2015. Rauner has been locked in a protracted battle with AFSCME since its last contract expired in the summer of 2015, blaming the union for years of contracts he calls unfair for taxpayers.
Alito, who wrote the majority opinion in Janus, used the same line of logic Rauner has repeatedly employed since beginning his run for governor in 2013, placing the cost of government at the feet of AFSCME. Alito said the justices were told in an amicus brief “that Illinois’ pension funds are underfunded by $129 billion as a result of generous public-employee retirement packages.”
“But when the state offered cost-saving proposals on these issues, the union countered with very different suggestions,” Alito wrote of contract negotiations with AFSCME. “Among other things, it advocated wage and tax increases, cutting spending ‘to Wall Street financial institutions,’ and reforms to Illinois’ pension and tax systems (such as closing ‘corporate tax loopholes,’ ‘[e]xpanding the base of the state sales tax,’ and ‘allowing an income tax that is adjusted in accordance with ability to pay’). To suggest that speech on such matters is not of great public concern—or that it is not directed at the ‘public square,’— is to deny reality.”
For its part, bond house Moody’s Investors Service, which currently rates Illinois bonds at one notch above junk status, said Wednesday that Janus’ ruling might signal the eventual reining in of government spending on employee benefits.
“We expect the Supreme Court decision may lower public union revenues, membership, and bargaining power in the 22 states that can no longer allow mandatory fees,” Moody’s Vice President and Senior Credit Officer Emily Raimes said in a statement Wednesday. “These developments could change how state and local governments set employee wages and pensions, resulting in a positive long-term impact on government finances.”
AFSCME Council 31 Executive Director Roberta Lynch, however, said Wednesday that the union refuses to back down, pointing to the ongoing fight over a contract between AFSCME and the Rauner administration.
“This case is a blatant political attack by Bruce Rauner and other wealthy interests on the freedom of working people to form strong unions,” she said. “We are extremely disappointed the Supreme Court has taken the side of the powerful few, but we’re more determined than ever to keep our union strong, standing up for public services and the working people who provide them.”