Seventh Circuit considers whether public-sector unions can refuse to represent non-members

Seventh Circuit considers whether public-sector unions can refuse to represent non-members         

On Sept. 29, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit heard arguments in Sweeney v. Raoul, a challenge to an Illinois state law requiring public-sector unions to represent all employees within a bargaining unit, both members and non-members.

Who are the parties to the suit?  

The plaintiffs are the International Union of Operating Engineers, Local 150, and its president-business manager James M. Sweeney. Local 150 represents approximately 3,300 employees across 133 bargaining units.  

The defendants are Attorney General Kwame Raoul (D) and Illinois Labor Relations Board Executive Director Kimberly Stevens, both in their official capacities.

What is at issue?

The Illinois Public Labor Relations Act establishes that, if a majority of employees in a bargaining unit support a union, the union is the exclusive representative of that unit for collective bargaining agreements. The law requires such unions to represent all employees within the bargaining unit, both members and non-members. 

In Janus v. AFSCME, decided in 2018, the U.S. Supreme Court ruled public-sector unions cannot compel non-member employees they represent to pay fees to cover the costs of non-political union activities. To do so, the court determined, would constitute a violation of employees’ First Amendment rights.

In light of Janus, Local 150 modified its complaint in an existing federal lawsuit, arguing that requiring unions to represent non-members violates their First Amendment rights: 

Unions and union members have the right under the First Amendment to refuse to associate with free-riding nonmembers. These free-riders increase the financial burden on dues-paying members and adversely affect the members [sic] ability to pursue collective efforts.

On Nov. 12, 2019, Judge Sharon Johnson Coleman of the U.S. District Court for the Northern District of Illinois rejected Local 150’s arguments and granted the defendants’ motion to dismiss. Coleman cited a 2019 decision by the Seventh Circuit that “unions designated as exclusive representatives were (and still are) obligated to represent all employees, union members or not, ‘fairly, equitably, and in good faith.’”

What are the arguments?

In their Jan. 21 brief filed with the Seventh Circuit, attorneys for the plaintiffs summarized their argument as follows: 

This case presents an issue that is the mirror image of Janus: Whether the Union and its individual dues-paying members can be compelled by the State to subsidize the speech of nonmembers and/or associate with them in processing grievances? The holding in Janus is therefore controlling[.] …

That same Illinois law which compels Local 150 and its public sector members over their objections to subsidize the speech of nonmembers and associate with them in processing grievances and representing them in arbitrations is likewise unconstitutional.

In their June 25 response brief, the defendants said: 

This court should affirm summary judgment for defendants because Janus did not undermine the constitutionality of the duty of fair representation, including the requirement that a union that chooses to accept the designation of an exclusive representative also agrees to represent nonmembers in grievance proceedings. The principle of exclusive representation and the corresponding duty of fair representation were constitutional before Janus and nothing in that decision changed that conclusion. On the contrary, the Supreme Court emphasized that its invalidation of compulsory fair-share fees did not imperil any other aspect of the exclusive representation framework and clarified that States could keep their systems exactly as they were except with regard to fees.

The American Federation of State, County, and Municipal Employees, the American Federation of Teachers, the National Education Association, the Service Employees International Union, and Illinois affiliates of these unions filed an amicus brief in favor of the defendants. The National Right to Work Legal Defense Foundation also filed an amicus brief in favor of the defendants. Martin Malin, a professor and co-director of the Institute for Law and the Workplace at Chicago-Kent College of Law, said, “This may be the first time in history that AFSCME and the National Right to Work Foundation are on the same side.” 

What comes next?

It is not known when the court might issue a ruling. The panel considering the case includes Judges Ilana Diamond Rovner, Michael Scudder, and Amy St. Eve. Rovner is a George H. W. Bush (R) appointee, and Scudder and St. Eve are both Donald Trump (R) appointees.  

The case name and number are Sweeney v. Raoul (19-3413).

What we’re reading



The big picture

Number of relevant bills by state

We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

  • Vermont S0254: This bill would require public employers to provide unions with employee contact information. It would provide for the automatic deduction of union dues from members’ paychecks, and it would permit unions to meet with new employees to provide them with information regarding union membership.
    • Democratic sponsorship.
    • Senate approved House amendment, delivered bill to governor Sept. 25.