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*** UPDATED x1 - 150 explains *** Local 150 makes good on its pledge to file First Amendment lawsuits

Friday, Feb 23, 2018

* A column published by In These Times earlier this month about the upcoming Janus v. AFSCME decision

From the earliest court decision dealing with workers’ protest activity—the 1806 Cordwainers Trial in Philadelphia–courts have strenuously avoided applying the First Amendment to unions. Instead, conservative courts treated unions as criminal conspiracies that interfered with employers’ property and contract rights.

I have been arguing that unions and their allies should be challenging the most unequal aspects of labor law as violations of our constitutional rights. Currently, employers in the private sector have a legal right to force employees to attend mandatory anti-union presentations, on penalty of firing. Workers can also be fired for making “disloyal” statements, even in the course of otherwise protected concerted activity. Meanwhile, the government has restricted the scope of issues that unions can legally compel employers to bargain over.

All of these practices are vulnerable to First Amendment challenges as government restrictions of workers’ speech. They become more vulnerable if the Supreme Court rules in Janus that every interaction that a union has with a governmental subdivision is inherently political.

Even more vulnerable are anti-union laws in the public sector. Take Scott Walker’s Act 10, which forbids unions from making bargaining proposals over anything other than wages that don’t exceed the cost of living. Or the New Jersey case law that forbids teachers unions from even proposing restrictions on class size. How are those not explicit restrictions on workers’ speech?

* The columnist also referenced this Operating Engineers Local 150 press release on the First Amendment angle of Janus v. AFSCME

(P)articipation in the Illinois Municipal Retirement Funds (“IMRF”) is mandatory for all IUOE, Local 150 public employees in Illinois. Our members are statutorily required to contribute 4.5% of their wages as a condition of their employment… The IMRF, in turn, uses that money, coupled with taxpayer monies, to make investments in a diversified portfolio that includes domestic and international equities, fixed income, real estate, and alternative investments. The corporations invested in by the IMRF themselves lobby the government, including the state of Illinois. Therefore, if the Janus Court agrees with the petitioner (that union agency fees inflict the same grievous First Amendment injury as would the government forcing individuals to support a mandatory lobbyist or political advocacy group) it follows that the IMRF’s forced participation mandate for public employees, and subsequent use of monies invested by the IMRF with a particular company to fund lobbying, must violate an Illinois public employee’s First Amendment rights.

* Well, Local 150 has begun filing lawsuits. Press release

Yesterday, Lincolnshire resident Dixon O’Brien filed a federal lawsuit against the Village of Lincolnshire, claiming that his tax dollars were being diverted to organizations which lobby against his beliefs and best interests.

At issue is Lincolnshire’s membership in the Illinois Municipal League (IML), which accepts tax dollars as membership fees to support lobbying efforts to limit collective bargaining rights, reduce pension benefits, and slash wages on publicly funded construction projects. […]

The Liberty Justice Center, which represents the Village, asserted in its Janus v. AFSCME brief that union “agency fees thus inflict the same grievous First Amendment injury as would the government forcing individuals to support a mandatory lobbyist or political advocacy group.” […]

As relief, the plaintiffs request an injunction preventing Lincolnshire from using tax revenue on political or lobbying activities and a judgment that Lincolnshire’s taxpayer-funded support of the IML is unconstitutional. O’Brien is also seeking a refund of any portion of his tax dollars that have been spent on political or lobbying activities through the IML or any other organization.

The lawsuit is here.

* The union also filed this lawsuit

Local 150 of the Operating Engineers is trying to undo unions’ legal duty to represent all workers in a bargaining unit, whether or not they join up or pay fair-share fees.

At issue is the “duty of fair representation” outlined in the Illinois Public Labor Relations Act.

Local 150 is basically saying: If the Supreme Court ends fair share, unions shouldn’t have to represent workers who won’t pay their dues.

* This is also a First Amendment issue, according to Local 150’s filing

If, however, it violates the First Amendment right of a non-member 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 non-member. This is so because the right to speak and the right not to speak are two sides to the same coin. Hence, the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. Similarly, freedom of association plainly presupposes a freedom not to associate.

Thoughts?

*** UPDATE *** From 150…

Good afternoon Rich-

To clarify what appears to be some confusion in the comments, the Sweeney v. Rauner lawsuit does not seek to relinquish our status as the exclusive bargaining representative, nor does it seek to create multiple bargaining units. It would simply relieve the union of “duty of fair representation” obligations to provide additional services to workers who choose to pay nothing, including grievance processing, legal representation, etc.

Thanks!

Edward Maher
Communications Director
International Union of Operating Engineers, Local 150

- Posted by Rich Miller        

42 Comments
  1. - AC - Friday, Feb 23, 18 @ 12:24 pm:

    It’s interesting. I also think a similar logic can also be applied to monopoly utilities and homeowners associations.


  2. - Anonymous - Friday, Feb 23, 18 @ 12:27 pm:

    “Local 150 of the Operating Engineers is trying to undo unions’ legal duty to represent all workers in a bargaining unit, whether or not they join up or pay fair-share fees.

    At issue is the “duty of fair representation” outlined in the Illinois Public Labor Relations Act.

    Local 150 is basically saying: If the Supreme Court ends fair share, unions shouldn’t have to represent workers who won’t pay their dues.”

    This is the fair resolution to the issue. Remove the duty for a union to bargain for employees that don’t pay dues. IMRF argument kind of a stretch, and even if that argument held, you’d find very few people that would voluntarily not participate in IMRF.


  3. - City Zen - Friday, Feb 23, 18 @ 12:40 pm:

    Call the IUOE’s bluff on IMRF all…day…long. According to the Dept of Labor, IUOE holds $11 million in the Vanguard Stock Market Index Fund. Let’s watch them unwind IMRF and their own investments and see how that pans out.

    The Dixon O’Brien argument is interesting. Would effectively put to end the tax-happy roadshow CTBA peddles around the state.


  4. - Anon - Friday, Feb 23, 18 @ 12:41 pm:

    I have some hope that SCOTUS will surprise everyone and fashion its own solution that does away with the Taft-Hartley duty of fair representation or modifies it to prevent freeriders. But I know it’s a longshot.


  5. - Norseman - Friday, Feb 23, 18 @ 12:42 pm:

    Darn, I hate it when people figure out when your being a hypocrite.


  6. - Swift - Friday, Feb 23, 18 @ 12:44 pm:

    ===use their money to speak on behalf of the non-member=== This is where unions will run into issues with precedence set in grievances. Unless they modify labor relations laws, if unions fail to represent a non-member in a grievance, and the grievance goes south, any precedent established will still be applicable to members.

    Regardless of non-members paying or not, it is still in the best interest in the union to represent the non-members to protect the interests of the union.


  7. - Perrid - Friday, Feb 23, 18 @ 12:44 pm:

    I’ve agreed with the second point all along, that if Janus et. al. don’t believe in and/or want the extra benefits that come with working in an union shop, they shouldn’t have those benefits. Give them, literally, what they are asking for, and wait for the complaints when their paycheck, or at least take home pay, start disappearing. I get that employers could still choose to give all workers the same deal, but that would just be a publicity stunt, and would not last long term.


  8. - allknowingmasterofracoondom - Friday, Feb 23, 18 @ 12:45 pm:

    The “duty of fair representation” lawsuit is the antithesis of the Janus suit. It is a fair question, and I can’t wait to hear the courts opinion.

    The O’Brien lawsuit ain’t got a chance. You elect people to make these decisions for you (joining the IML). The entire history of the government is filled with like examples from 1776 until today. But, I think it will serve well as a nuisance lawsuit while the real meaty suits progress.


  9. - Honeybear - Friday, Feb 23, 18 @ 12:46 pm:

    Loving God this nuclear warfare
    This for all the marbles
    What’s at stake is larger than we can fathom.
    I think 150 by putting “duty to represent”
    Just bet the House of Labor
    Exclusive representation
    Even collective bargaining
    All
    On
    The table
    Oh my God I feel dizzy
    I think I’m going to binge watch
    Every Star Wars movie
    To self medicate
    With the hope
    That the Death Star/Killer Star base
    Can be destroyed

    I now get what those Rebel officers
    Felt in the CIC
    Death Star coming round the moon
    In weapons range in minutes
    Hoping that x-wing 150’s pull it out.
    Force Be With You


  10. - G'Kar - Friday, Feb 23, 18 @ 12:47 pm:

    What is good for the goose is good for the gander.

    I also second what anonymous wrote at 12:27. In the past my college did not have fair share and as a local union executive I had to spend a lot of time defending free riders in grievance and employment situations.


  11. - Anonymous - Friday, Feb 23, 18 @ 12:58 pm:

    Swift, A change in fair representation would mean non-members would not be covered by a bargained contract. Therefore only members would have grievance rights. A State Example would be Merit Comp Employees. They are not represented by the union and are not covered by the union contract; therefore, the union is not required to represent.


  12. - Demoralized - Friday, Feb 23, 18 @ 1:00 pm:

    ==Would effectively put to end the tax-happy roadshow CTBA peddles around the state.==

    You mean the “be responsible and pay our bills” roadshow?


  13. - Steve Polite - Friday, Feb 23, 18 @ 1:05 pm:

    @Swift Your premise is incorrect. If the duty to represent law is reversed, Non-members would not be covered by the union contract and as such would not have grievance rights. Therefore no precedents would be set.


  14. - TH - Friday, Feb 23, 18 @ 1:09 pm:

    I agree with AC in the first comment. It’s interesting and the same logic could be used with utilities and homeowners associations.


  15. - Anon - Friday, Feb 23, 18 @ 1:09 pm:

    Do 150 members really want out of IMRF? Employees contribute 4.5%. Employers contribute 3X that or more. Be careful what you wish for because I don’t know that there’s a better option for them. Also, how’s the 150 health insurance plan working out?

    As for the IML, if you don’t want your community to participate, there’s a way to change that…it’s called an election and 150 knows how to participate in that process.


  16. - Rockford - Friday, Feb 23, 18 @ 1:11 pm:

    Why not just push for this initially instead of claiming the Janus case is an “attack on unions.” If a worker doesn’t want to join the union they shouldn’t have to pay the union and they should negotiate their own contract with the employer. Then, if union workers are getting that much better results, more workers will want to join the union anyway


  17. - Ron Burgundy - Friday, Feb 23, 18 @ 1:22 pm:

    Interesting theory but not a perfectly analogous situation, as municipalities are public governmental bodies and unions are not. We don’t get to directly pick where our tax dollars go.


  18. - A State Employee Guy - Friday, Feb 23, 18 @ 1:28 pm:

    “If the Supreme Court ends fair share, unions shouldn’t have to represent workers who won’t pay their dues”

    Unions arguing for members-only unionism… we’re in wild times, man.


  19. - NATTY BOY - Friday, Feb 23, 18 @ 1:28 pm:

    On no other industry would an entity be forced to provide a product or service for free. By the logic of a ANTI-AFSCME decision, I should be able to have a Ferrari without paying for it. If these folks want out of the union- fine.However, they should have to negotiate ALL the particulars of their contract themselves. Also, if there are any discipline issues, they should have to represent and argue for themselves all the way through the disciplinary process. You can’t freeloader at Krogers, why be allowed to do so at your work sight, at least when a union gas done the heavy lifting already?


  20. - Anonymous - Friday, Feb 23, 18 @ 1:34 pm:

    =there’s a way to change that…it’s called an election and 150 knows how to participate in that process.=

    A Janus victory would also ignore that the employees could hold an election pursuant to the IL Labor Relations Act and decertify the union if the employees chose not to be a union shop.


  21. - Grandson of Man - Friday, Feb 23, 18 @ 1:36 pm:

    There should be a trade-off between workers being forced to pay union fees and unions having to represent free riders.

    As far as First Amendment freedom and fair share fees, workers who choose to belong to unions have rights too. Can I opt out of being governed by politicians for whom I didn’t vote? Of course not. People like Janus don’t respect or want to abide by others’ rights and democracy, especially in that the vast majority of bargaining unit state workers choose to be union members.


  22. - Hillbilly - Friday, Feb 23, 18 @ 1:46 pm:

    Here’s an interesting scenario, I have my home owners through Country Companies, in order to receive premium benefits they make my wife and I join the county Farm Bureau. Typically, that group supports conservative politics and endorse mostly conservative politicians… So if the Supreme Court rules in favor of Janas, does this open up the door for people to freeload off of groups like the Farm Bureau?? Eye for an eye if you ask me!!!


  23. - Anonymous - Friday, Feb 23, 18 @ 1:46 pm:

    I retired in 2011. I was “fair share” for a long time. Once during that time I had an issue the union would NOT represent me nor file a grievance on my behalf as I was not a member. So much for that issue.


  24. - chi - Friday, Feb 23, 18 @ 1:47 pm:

    =As for the IML, if you don’t want your community to participate, there’s a way to change that…it’s called an election and 150 knows how to participate in that process.=

    Same for union representation. Instead of allowing free riders, there is already an election process in place to vote out a union. The hypocrisy is the point of the lawsuits.


  25. - NATTY BOY - Friday, Feb 23, 18 @ 1:48 pm:

    A State Employee Guy: Yes, sadly, members only, unless you can talk team of labor lawyers, negotiators and other officials to get in the spirit of the sixties and do all things for free in the name of peace, love and the spirit of humanity. God’s blood, man. You can’t even bowl on a league for free why should you expect to have workplace rights delivered on a plate to you? Give peace a chance!


  26. - RNUG - Friday, Feb 23, 18 @ 1:48 pm:

    Going to be interesting times if they start unwinding 60 to 80 years of labor law. Looks like lots of “settled law” may get challenged, and maybe upended.

    I know SCOTUS is always somewhat political, but,like -Norseman-, I would like to think they will try to craft a middle ground. Otherwise cases like 150’s could totally upset the apple cart.


  27. - Just another free rider - Friday, Feb 23, 18 @ 1:50 pm:

    I didn’t ask to join a union for the job, and I certainly don’t want the money I earn to be used for things I vehemently disagree with. As far as “fair share representation”, this contract they say they will enforce on my behalf… I don’t want it, I had no say in it, and I’m perfectly happy to negotiate MY OWN arrangement with my employer. I’d be perfectly content to not pay fair share and get nothing from the union.

    Problem solved.


  28. - California Guy - Friday, Feb 23, 18 @ 2:08 pm:

    Interested to see how labor law would change post-Janus. My assumption is that since most of the unionized workforce is caught up in the State and Local government bureaucracy, the HR office and their payscale will just take over completely. Unions will become less relevant. Any efficiency gained by not having to deal with union drama will likely be eaten up by individual lawsuits from employees over boiler plate labor issues (EEOC, fair pay, etc.).

    The human resources industrial complex is just too strong.


  29. - Not another free rider - Friday, Feb 23, 18 @ 2:08 pm:

    You had a say as to whether you wanted a union to negotiate for you. It was an election. Don’t like the results, have another election.


  30. - Skeptic - Friday, Feb 23, 18 @ 2:12 pm:

    “I’m perfectly happy to negotiate MY OWN arrangement” and what happens if you don’t get a deal you like? You find another job. Just like if you don’t like being represented by a union. Problem solved.


  31. - G'Kar - Friday, Feb 23, 18 @ 2:28 pm:

    ==I retired in 2011. I was “fair share” for a long time. Once during that time I had an issue the union would NOT represent me nor file a grievance on my behalf as I was not a member. So much for that issue.==

    Assuming you had a true grievance, and not a gripe, if the Union failed to represent you, you had the right to sue them for non-representation.


  32. - City Zen - Friday, Feb 23, 18 @ 2:30 pm:

    ==You find another job. Just like if you don’t like being represented by a union.==

    As a taxpayer, I only care if he’s qualified to perform the job as indicated by the state. Unless the unions trains, educates, or certifies him, why do I care if he joins the union or not?

    The notion that the union holds the right of employment over a taxpayer-funded position is elitist thinking.


  33. - Anonymous - Friday, Feb 23, 18 @ 2:37 pm:

    G’Kar It was a true grievance, not a gripe, it was about travel expenses that totaled over 2.5 thou. As I am not an attorney, I did not know of any recourse available to me. If I had, I would have sued. Most unions I have been forced to belong to over the years were more concerned about their senior officers than the rank and file.


  34. - Skeptic - Friday, Feb 23, 18 @ 2:52 pm:

    As a taxpayer, why does it matter to you if they’re union or not or whether the union provides training or not? As a customer of GM, does it matter to you if the line workers are union or who trains them? Of course not, that’s a silly argument.

    That said, as a taxpayer, you probably have an interest in making sure that salaries are commensurate with the job, right? You may argue that public union employees already are overpaid (a discussion for another day) but what kind of chaos would you envision if 40,000 people each negotiated their own salary? What would happen of course is the ones with friends in high places get paid more. And what control would you have against pension spiking? None of course. So it looks to me, to you as a taxpayer (and me too since I’m also a taxpayer) that unions are a benefit.


  35. - A State Employee Guy - Friday, Feb 23, 18 @ 3:01 pm:

    While I don’t think the mass exodus of union menebers is going to happen like some doomsdayers have portended if Janus goes, um, Janus’s Way, I think we are heading to members only unions in the public sector. I also don’t think that’s necessarily a bad thing; take a look at any FOP local anywhere in the country and I bet you’ll find about ten fair share fee payers, mostly because they tend to offer a pre-paid legal assistance program only to union members. If unions can get back to proving benefits to entice members to join (maybe not pension plans, facepalm) outside of “we bargain and we enforce”, I think they can come out the other side on this even stronger.

    Either that or start organizing the gig economy, somehow.


  36. - Demoralized - Friday, Feb 23, 18 @ 3:27 pm:

    I still think if Janus really dislikes unions he should put his money where his mouth is and give back every single raise he has been given as a result of the union contract because he only got those because of that contract. Nobody forced him to join the union. He took the job knowing the requirements. Don’t take a job knowing what the requirements are and then complain after you take the job that you don’t like what is required of you.


  37. - Steve Polite - Friday, Feb 23, 18 @ 3:30 pm:

    @A State Employee Guy. AFSCME provides many benefits for members and their families one of which is a free two year associates degree at an accredited state university.
    https://m.afscme.org/members/advantage


  38. - Nick - Friday, Feb 23, 18 @ 3:42 pm:

    This is being perpetuated by two things

    1. The super rich wanting to get rid of unions so they pay less wages and less benefits

    2. Jelalous people not in a union and not getting the benefits

    (Being egged on by 1)


  39. - Honeybear - Friday, Feb 23, 18 @ 3:56 pm:

    Anonymous 2:37
    Someone should have explained to you long ago that fair shares only have Union represented grievance rights up to a certain level. Not knowing the situation , I suspect this was the case. It seems a grievance of travel pay would easily go up to third level. By contract you didn’t have rights as a non member to go higher. That’s probably why they didn’t file it.
    It’s about choices. You didn’t join and yet for your fair share fees you got a Tier 1 pension, step raises, etc. You had it good. All negotiated for you by the union. Your fairshare served you well. If you’d just paid the (in my local) 8 dollars a month you would have had full grievance rights by contract.
    Oh well, enjoy your Union secured pension
    You’re welcome


  40. - b - Friday, Feb 23, 18 @ 3:57 pm:

    It boils down to value for representing by the union for bargaining and the results non union people get without being union. They would have to pay someone or take what is given them and suffer.


  41. - California Guy - Friday, Feb 23, 18 @ 4:38 pm:

    @ Honeybear

    Anonymous comment was me at 12:27 - forgot to type in name.

    The grievances that the union would need to process for a fair-share-only fee paying member are those grievances and rights outlined in the collective bargaining agreement. I agree that the union should ONLY represent a fair-share-only fee payer to the extent required by existing case law and the rights of the employee outlined in the CBA.

    What I am saying is that a fair resolution (which apparently, Local 150 does not promote per their update), is that a union should not have to provide ANY representation services at all to a member who no longer has to pay a fair share fee, post-Janus decision to remove fair share requirements. Removing the ability to collect a fair share fee while requiring a union to bargain for them anyways would be wrong headed.


  42. - A State Employee Guy - Friday, Feb 23, 18 @ 4:59 pm:

    HI Steve,

    Despite those (sort of limp) benefits, AFSCME still believes non union membership is going to rise. So, they themselves don’t seem to think those benefits are gonna be enough to keep rank.


Sorry, comments for this post are now closed.


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