The Duty of Fair Representation for Public Sector Unions in the Wake of Janus. A Recent District Court Ruling May Signal Change

February 12, 2019

On February 22, 2018, in anticipation of the Supreme Court’s ruling in Janus that fair share fees for public sector employees are unconstitutional, the International Union of Operating Engineers, Local 150, filed a lawsuit seeking to strike down an Illinois law that compels the union to represent employees who decline to become dues-paying union members. The lawsuit, filed in U.S. District Court in Chicago, names the Illinois Attorney General and the Executive Director of the Illinois Labor Relations Board as defendants. Local 150 argues that the law requiring it to negotiate on behalf of all workers in the bargaining unit violates the union and dues-paying members’ constitutional free speech rights under the First Amendment.

For nearly a year, Local 150’s lawsuit sat idle. However, after the Supreme Court ruled fair share fees unconstitutional in the Janus case, the Illinois Attorney General and Executive Director of the Illinois Labor Relations Board moved to dismiss the case for lack of subject matter jurisdiction. On February 6, 2019, the district court judge partially granted and partially denied that motion to dismiss. Most notably, Judge Sharon Johnson Coleman ruled that the portion of Local 150’s lawsuit pertaining to the unconstitutionality of the provision of the Illinois Labor Relations Act (the Act) requiring unions to represent both members and non-members may proceed. The case will now move forward on the merits of this claim.

If Local 150 wins, it could fundamentally alter the relationship between public sector unions and public employers throughout Illinois. It could also open the door to allowing individual non-member employees to negotiate different agreements with public sector employers, potentially creating an administrative mess for public employers.

While the Court ruled that the duty of fair representation portion of Local 150’s lawsuit could proceed, it dismissed the portion of the lawsuit in which Local 150 challenged the scope of collective bargaining under the Act. Local 150 argued that the restrictions on bargaining over 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” unconstitutionally restrain the scope of Local 150’s speech. The Court ruled that this claim was not ripe for pre-enforcement consideration. Therefore, it granted the motion to dismiss on this claim.

Few unions have joined with Local 150 to fight for the right to decline to represent non-dues paying members in the wake of Janus, though that could change with this ruling. We will continue to monitor the case and provide updates as they become available.