Attorneys in a lawsuit to end mandatory union dues for public-sector workers filed a petition Tuesday in the hopes the U.S. Supreme Court will hear their case.
Lead plaintiff Mark Janus filed the lawsuit with two other Illinois state workers. The National Right to Work Legal Defense Foundation (NRTW) has been assisting the state workers alongside the Liberty Justice Center (LJC). Attorneys for the legal nonprofits filed the petition the lawsuit failed in lower courts.
“We filed the petition for certiorari,” Patrick Semmens, vice president for public information at NRTW, told InsideSources. He says he hopes the case will go before the court next year, but first, four justices must say that they wish to hear the case in order to move forward.
The lawsuit argues that mandatory union fees in the public sector are a violation of the first amendment. The American Federation of State, County and Municipal Employees (AFSCME) is the primary union named in the lawsuit, but the ultimate goal is to end mandatory union dues for all public-sector workers.
“Mark Janus was forced to give money to AFSCME,” Semmens said. “AFSCME talks to the state of Illinois using that money to do so. We say that’s a violation of the first amendment. He shouldn’t be forced to pay. The people who want to pay can, of course, do that, but those who don’t want to, it should never be required.”
The lawsuit argues public-sector collective bargaining and political lobbying are indistinguishable. Essentially, by virtue of being an entity that represents government workers, everything it does is political. The Seventh Circuit Court of Appeals ruled against the lawsuit March 21 by affirming an earlier district court decision.
Labor unions can require payments once they get voted in as an exclusive representative for a workplace. States that have right-to-work protections have outlawed that practice. A worker can petition to leave their workplace union in which case they are only required to pay a representation fee. That fee can only cover the cost of representing the workers and not other union activities like political campaigning.
The lawsuit seeks to overturn the Supreme Court case of Abood v. Detroit Board of Education, which affirmed mandatory dues when it was ruled in 1977. It also established the exception for political spending.
Labor unions and their supporters argue that optional dues encourage workers to free-ride. Once a union gets voted in as an exclusive representative, it must represent all workers whether they pay dues or not. The free-ride argument is used against both lawsuits challenging mandatory union payments and right-to-work laws.
“These mandatory fees prevent the problem of free-riders, employees who enjoy raises and other benefits provided by the union without paying for them, leaving their co-workers to pick up the tab,” AFSCME Council 5 wrote last year. “These are known as ‘fair-share’ fees.”
Labor unions have a lot to lose if the lawsuit ends mandatory union dues in the public sector. The Bureau of Labor Statistics (BLS) reported that the union membership rate stands at 34.4 percent for public-sector workers, but only 6.4 percent for private.
The case started after Illinois Gov. Bruce Rauner issued an executive order in 2015 directing the state to stop taking union fees from state workers who were not union members. The governor also filed a lawsuit in federal court, asking it to affirm his decision was legal.
Illinois Attorney General Lisa Madigan and some state unions moved in to counter the lawsuit. They argued the governor didn’t have standing to bring the lawsuit because he didn’t have to pay union dues or fees. A person with legal standing has a right to bring a lawsuit because they were harmed by a law or action.
NRTW and LJC decided to intervene when they saw the case was in trouble. They joined the case by offering legal assistance to the three state workers. A federal judge ruled a short time later that the governor did not have standing to proceed with the case, but the three state workers did.
Friedrichs v. California Teachers Association managed to get to the Supreme Court with a similar challenge last year. The Supreme Court was split after the death of Justice Antonin Scalia. A tied decision defaults to the lower courts, which ruled against the lawsuit. Judge Neil Gorsuch has since filled the vacant seat.
House Republicans introduced a bill last week aimed at making union dues and fees optional for all workers. Republicans hold a congressional majority, making its passage a possibility. President Donald Trump has already expressed his support for right-to-work laws and is likely to sign such a bill.
AFSCME and its local affiliate did not respond to requests for comment by InsideSources.