On May 26, an Illinois judge denied a petition to have the Illinois Right to Collective Bargaining Amendment (Amendment 1) removed from the November general election ballot. 

Background

The Illinois General Assembly referred a constitutional amendment to the Nov. 8, 2022, ballot that would guarantee employees the right to organize and bargain collectively.

The proposed amendment would add the following language to Article I of the Illinois Constitution:

1. “Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.”
2. “The provisions of this Section are controlling over those of Section 6 of Article VII.”

In Illinois, a legislatively referred constitutional amendment requires three-fifths of the members of both houses of the General Assembly to vote to put it on the ballot. Amendment 1 was introduced as Senate Joint Resolution 11 on May 7, 2021. The resolution passed the Senate 49-7 on May 21, 2021, and passed the House 80-30 on May 26. No Democrats voted against the resolution. Eleven Republicans in the Senate and nine Republicans in the House supported the resolution. 

For the amendment to be ratified, the ballot measure must be approved by three-fifths of voters, or by a majority of voters who cast a ballot in the election. In most states, voters can pass a legislatively referred constitutional amendment with a simple majority vote on the question.  

About the petition

On April 21, 2022, petitioners Sarah Sachen, Ifeoma Nkemdi, Joseph Ocol, and Alberto Molina filed a petition and complaint in the Seventh Judicial Circuit Court in Sangamon County against the Illinois State Board of Elections, the Illinois Secretary of State, and the Illinois State Comptroller, seeking to remove the amendment from the ballot. Attorneys from the Liberty Justice Center and the Illinois Policy Institute represent the petitioners, who are Chicago Public School teachers or parents.  

The petitioners alleged that the National Labor Relations Act (NLRA) “preempts Amendment 1’s attempt to provide a state-law right to collective bargaining” and that “Amendment 1 conflicts with the NLRA.” The petitioners asked the court to declare that the amendment would violate the Supremacy Clause of the U.S. Constitution and to block the defendants from using public funds to put the amendment on the ballot. The petition said, “Petitioners have standing to bring their claim as taxpayers. Taxpayers are injured when the state uses its general revenue funds for an unconstitutional purpose because they are liable to replenish improperly used funds. … Thus, the Illinois Supreme Court has repeatedly recognized that taxpayers have standing to seek an injunction to prevent the state from using public funds to place an unconstitutional proposal on the ballot.” 

A hearing was held on May 20. 

The court’s decision

On May 26, Circuit Judge Raylene Grischow denied the petition, writing that “the Court has no power to restrain a referendum on the grounds that, if the proposed law were enacted, its enforcement would be unconstitutional” and that the petitioners “offer no basis for preventing the Amendment’s submission to the voters merely because some anticipated applications may be preempted by federal law.” 

Grischow wrote:

“At most, federal preemption would merely render the Workers’ Rights Amendment dormant, not invalid, because it would still apply to situations not covered by the NLRA and would become enforceable even as to preempted applications in the event the NLRA were ever repealed. … 

“Thus, the proposed Amendment would serve at least three permissible purposes. First, it would create rights for public employees, which Petitioners concede is not preempted by the NLRA. Second, it would restrain the power of the General Assembly to pass laws restricting union security agreements, a subject left open to the states. Third, it would act as a state-law failsafe to preserve rights for private-sector employees in the event the federal government ever decided to abandon the NLRA. … 

“Accordingly, the Petition states no reasonable grounds for filing suit. The Illinois constitution requires the amendment to be put to the voters because it complies with the requirements in Article XIV, section 2 of the Illinois constitution. The Court has no power to pass on the validity of the proposed Amendment unless and until it is adopted by the voters. To do so would constitute an improper advisory opinion. … Moreover, even if the Court could entertain Petitioners’ challenges to the anticipated enforcement of the proposed Amendment, Petitioners plainly concede it has substantial applications unaffected by any federal preemption. Petitioners are therefore not entitled to an order prohibiting the placement of the proposed Amendment on the ballot.”

The case name and number are Sachen v. Illinois State Board of Elections (22-CH-34).

What happens next

Representatives from the Liberty Justice Center and the Illinois Policy Institute say they plan to appeal the circuit court’s decision.  

Illinois Policy Institute attorney Mailee Smith said, “We are committed to pursuing our claims in court and ensuring Illinois voters are not forced to vote on an unconstitutional amendment. The law is clear that Amendment 1 would do more than the state is allowed to do. Illinoisans deserve to have this addressed now. Not later. Not after their tax dollars have been wasted putting an unconstitutional measure on the ballot. We look forward to our next opportunity to argue on behalf of taxpayers.”

According to NPR Illinois’ Hannah Meisel, Amendment 1 “will have a full-scale campaign behind it beginning later this spring, orchestrated by labor-backed independent expenditure committee Vote Yes for Workers Rights.” A representative for the committee said, “Frankly, we aren’t surprised that big money special interest groups are trying to keep workers in Illinois from being able to vote yes for workers rights in a fair and free election. … We’re confident that this amendment will be on the ballot in November…And I think that it’s very telling that [the opposition] knows voters have this opportunity to make this choice and they’re doing everything that they can to remove that choice from the hands of working Illinoisans.”

At least three state constitutions—in Hawaii, Missouri, and New York—provide a right to collective bargaining. Unlike in those states, the Illinois Right to Collective Bargaining Amendment would also preempt right-to-work laws prohibiting collective bargaining agreements requiring union membership as a condition of employment. 

What we’re reading

• San Francisco Chronicle, “California can deduct union dues from Medi-Cal payments to in-home caretakers, court rules,” June 8, 2022
• Bloomberg Law, “Medicaid Providers Denied Right to Sue Over Union Dues Deduction,” June 8, 2022
• The Center Square, “Ohio public employee settles with union over vacation time,” June 8, 2022
• Reuters, “Immigration judge union wins revival of challenge to DOJ gag policy,” June 8, 2022
• Wisconsin Examiner, “UW Health can bargain with unions, AG Kaul says in legal opinion,” June 3, 2022
• AFSCME, “Colorado collective bargaining law is latest evidence of surging union momentum,” June 3, 2022
• Connecticut Inside Investigator, “Lawsuit alleges New Haven union violated school cafeteria cook’s right to stop paying dues,” June 3, 2022 

The big picture

Number of relevant bills by state

We are currently tracking 144 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

Below is a complete list of relevant legislative actions taken since our last issue.

• California AB1577: This bill would allow state legislative employees to organize and bargain collectively.
  • Bipartisan sponsorship.
  • Referred to Senate Labor, Public Employment, and Retirement Committee and Senate Judiciary Committee June 8.
• California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
  • Democratic sponsorship.
  • Referred to Senate Labor, Public Employment, and Retirement Committee and Senate Judiciary Committee June 8. Senate Labor, Public Employment, and Retirement Committee hearing set for June 13.
• California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership.
  • Democratic sponsorship.
  • Assembly Judiciary Committee hearing set for June 14.
• Pennsylvania HB844: This bill would ban public employee social security numbers and personal contact information as subjects of collective bargaining.
  • Republican sponsorship.
  • Removed from the table June 7, laid on the table again June 8.
• Pennsylvania HB845: This bill would require any proposed public employee collective bargaining agreement to be published on the public employer’s website at least 14 days before the agreement is accepted. It would also make documents from the collective bargaining process into public records subject to the state’s right-to-know law.
  • Republican sponsorship.
  • Removed from the table June 7, laid on the table again June 8.
• Pennsylvania HB2042: This bill would require public employers to provide non-union members with an annual notification that they are not required to make payments to a union and to provide new and returning employees with a notification that they do not have to join a union.
  • Republican sponsorship.
  • Removed from the table June 7, laid on the table again June 8.
• Pennsylvania HB2048: This bill would prohibit collective bargaining agreements from authorizing the deduction of political contributions from public employee wages.
  • Republican sponsorship.
  • Removed from the table June 7, laid on the table again June 8.