Union Challenges Duty to Represent ‘Free Riders’ at 7th Circuit

A federal appeals court in Chicago will consider whether public-sector unions can refuse to represent nonmembers who don’t pay fees to cover collective bargaining costs and other expenses, in a case brought by one union but opposed by several others.

The International Union of Operating Engineers Local 150’s argument relies on the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME, which said forcing nonmembers to pay such “agency fees” to public-sector unions violates those workers’ First Amendment rights. The obligation to represent those free-riding nonmembers similarly violates the free speech and associational rights of public-sector unions and their members, Local 150 says.

While Janus has buttressed legal attacks on unions’ legal authority and finances, Local 150 has tried to wield the ruling as a weapon for organized labor. The union, which represents private- and public-sector workers, previously came up short in Janus-based lawsuits challenging a public pension fund’s investment decisions and an Illinois town’s funding of a municipal lobbying organization.

Local 150 focused its case on a limited aspect of unions’ duty to represent nonmembers, specifically objecting to the obligation to support them in grievance proceedings for free. But the possibility of disrupting one aspect of the duty of fair representation—one of the core concepts in U.S. labor law—apparently was enough to spark resistance from the four major unions in the public sector.

The American Federation of State, County, and Municipal Employees, American Federation of Teachers, National Education Association, and Service Employees International Union joined a brief against Local 150.

The obligation to fully represent all workers in a bargaining unit regardless of membership is intertwined with a union’s authority to act as the sole agent for the unit, the unions said in their brief. Nonunion workers represented by conservative advocacy groups have challenged exclusive representation in the public sector in a series of lawsuits, including one that the Supreme Court could hear this term.

In an odd twist, the National Right to Work Legal Defense Foundation filed a brief on behalf of an Illinois state worker that also opposes Local 150. Exclusive representation can’t exist without a full duty of fair representation, argued the foundation, which has been a frequent courtroom foe of unions and prevailed at the high court in Janus.

“This may be the first time in history that AFSCME and the National Right to Work Foundation are on the same side,” said Martin Malin, a professor and co-director of the Institute for Law and the Workplace at Chicago-Kent College of Law.

Duty to Represent

Local 150 filed its lawsuit in February 2018, in anticipation of the Janus decision. Banning mandatory agency fees in the public sector also means that the requirement in Illinois labor law calling on unions to represent nonmembers fairly is similarly unconstitutional, it alleged.

U.S. District Judge Sharon Johnson Coleman refused to dismiss Local 150’s lawsuit in February 2019, ruling that Janus altered unions’ obligations under state law, created the constitutional injury claimed by the union, and made the lawsuit ripe for resolution.

But Coleman ultimately ruled against Local 150 in November. She interpreted the union’s challenge to its duty to represent nonmembers in grievance proceedings as a broad attack on the system of exclusive representation, which she said is constitutional under a Supreme Court ruling from 1984.

Local 150 emphasized in its brief to the U.S. Court of Appeals for the Seventh Circuit that it’s not challenging exclusive representation, just one particular aspect of the obligation to fairly represent bargaining unit workers. Illinois labor law recognizes an exception to the duty of fair representation that allows individual workers to present their own grievances to their employers, it said.

Instead, the union said it’s pursuing the “less restrictive” alternative to mandatory agency fees that the Supreme Court discussed in its Janus opinion, namely taking away the responsibility to represent nonmembers in grievances for free.

Local 150 General Counsel Dale Pierson said he disagrees with the argument made by AFSCME and the other major public-sector unions that binds supporting nonmembers in grievance proceedings with the broader duties unions have as exclusive bargaining representatives. Public-sector unions’ freedom to consider the costs of nonmembers’ grievances doesn’t affect their obligation to represent them in collective bargaining, he said.

In its brief opposing Local 150, the Illinois attorney general’s office characterized the union’s lawsuit as a challenge to exclusive representation. That system was unchanged by Janus, the AG’s office said.

The state also disputed Local 150’s argument that representing nonmembers at grievance proceedings has First Amendment implications for public-sector unions or their members. Regardless of that representation, unions and workers remain free to exercise their free speech and associational rights.

The Illinois attorney general’s office declined to comment.

The case is Sweeney v. Raoul, 7th Cir., No. 19-03413, Oral argument 9/29/20.