* 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.
*** 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.
International Union of Operating Engineers, Local 150