Jim Dey: 'Fair share' case poses threat to public-employee unions

Jim Dey: 'Fair share' case poses threat to public-employee unions

If unionized state employees are feeling beleaguered these days, it's easy to understand why.

In an effort to stave off an unpalatable contract proposal, members of the American Federation of State, County and Municipal Employees recently voted overwhelmingly to authorize a strike.

At the same time, Attorney General Lisa Madigan has gone to court in an effort to obtain an order that bars state employees from being paid in the absence of a formal budget passed by the Democrat-controlled General Assembly and Republican Gov. Bruce Rauner.

Finally, a lawsuit that would bar public employee unions from coercing non-members into paying what are known as "fair-share" dues was heard last week before a federal appeals court in Chicago, a necessary step toward getting the issue back before the U.S. Supreme Court.

The argument presented to the appeals court on behalf of two state employees who are suing both AFSCME and the Teamsters is a sure loser. That's because Supreme Court precedent authorizes coerced "fair share" payments by non-members, and the appeals court has no real alternative but to uphold it.

But the goal of lawyers at the Chicago-based Liberty Justice Center is to use their anticipated loss at the Seventh Circuit Court of Appeals in Chicago as a vehicle to ask the U.S. Supreme Court to review the case and change the law.

"There's never a sure thing. But it seems like a very strong candidate (for U.S. Supreme Court review)," said Jacob Huebert, senior attorney at the justice center.

This litigation is more than just a legal matter. It's also a rare political drama that stretches from the U.S. Supreme Court in Washington, D.C., across town to the White House at 1600 Pennsylvania Avenue and then back to the Capitol Hill location of the U.S. Congress.

That may seem odd for Illinois-based case that began in February 2015, when Gov. Rauner filed a lawsuit asking for the federal courts to declare the coerced dues "fair share" payments violated non-union members' rights to free speech and freedom of association.

But it does, and here's why.

A case from California — Friedrichs vs. California Teachers Association — that raised the same issue as Rauner's lawsuit was heard in January 2016 by the U.S. Supreme Court. Justice Antonin Scalia died between the time that he and his colleagues heard the case in January, his absence proving critical when his surviving colleagues failed to issue a definitive ruling on March 29, 2016.

"The judgment is affirmed by an equally divided court," the high court stated in a brief announcement of the 4-4 tie vote.

Ruling in favor of union power were liberal justices Ruth Ginsburg, Sonia Sotomayor, Elena Kagen and Stephen Breyer.

Ruling in favor of California teacher Rebecca Friedrich were conservative justices John Robert, Samuel Alito, Clarence Thomas and libertarian Justice Anthony Kennedy.

Relying on precedent — the 1977 ruling in Abood vs. the Detroit Board of Education — a California-based appeals court ruling rejected the challenge to "fair share." Because the high court could not decide the issue, the lower court ruling stood.

The result represented a temporary victory for public employee labor unions. Their permanent win was to come in the form of a new liberal justice appointed by a Democratic President Barack Obama to replace Scalia.

But the U.S. Senate's Republican majority declined to take action on Obama's nominee, liberal federal appeals court Justice Merrick Garland, holding that Obama's successor should have that privilege.

Although enraged by the GOP's stance, Democrats still thought they had a lock on the position. But in one of the greatest political upsets in American history, Republican presidential nominee Donald Trump defeated Democratic Hillary Clinton in the November election.

Trump recently nominated conservative appeals court Justice Neal Gorsuch for the position Scalia held. He's awaiting confirmation hearings before the U.S. Senate.

Although there are no guarantees about how Gorsuch would rule on the issue, the Senate's minority Democrats and their supporters in the labor movement are worried.

In that contact, Rauner's lawsuit would allow the U.S. Supreme Court to revisit the issue.

Ironically, Rauner's not involved in the litigation anymore. Federal trial Judge Robert Gettleman ruled he didn't have standing to sue. But the Liberty Justice Center representing state employees Mark Janus and Brian Trygg intervened in the case, and it's their claim that is at the center of the litigation.

Huebert, the pair's lawyer, said the two don't want to be members of either AFSCME or the Teamsters and don't want to pay "fair share" dues the union claim covers the union's costs of representing the non-union members with management.

Huebert said they are being "forced to give money to an organization they don't want to support" and that includes underwriting the cost of the political activities in which the unions engage.

Back in 2015, when Rauner filed his lawsuit, officials estimated about 6,500 non-union public employees made "fair share" contributions of about $650 each. The unions' concern, however, is not just losing that substantial sum but the loss of dues payments from current members who could decide that membership is not worth what it costs.

So the stakes involved in this potential legal clash are huge. If the schedule proceeds as Huebert expects, the high court could hear the Illinois case in the fall of 2017 and issue a decision by June 2018.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-3551-5369.

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catsrule wrote on March 05, 2017 at 1:03 pm

A national "right to work" decision (see Friedrichs v. California Teachers Association 9th Circuit), while ostensibly not a favorable development for organized labor, wouldn't necessarily be as bad as some believe. Some studies suggest a 5 - 10 percent reduction in dues based funding being average for bargaining units in states subject to the introduction of RTW legislation, but the data I've seen does not differentiate between public and private sector employment. While RTW legislation hasn't been empirically proven to provide any competitive advantage between states (aside from the largely symbolic perception that a given state is trying to show it is "business friendly"), if all states are subject to it, that question is resolved. RTW legislation forces organized labor to provide better member services to incentivize paid membership. Michigan and Indiana, two states that adopted RTW laws in the last 3 years, provide very interesting data that some may find surprising. In these two states, applications from non dues paying employees to become full dues paying union members have increased significantly, Indiana alone adding over 50,000 dues paying members since 2015. In Illinois, the number of public sector employees whom have requested to change from "fair share" to full paying members has increased dramatically in the last couple of years.

jgrout wrote on March 06, 2017 at 9:03 am

The existence of public employee unions poses a permanent conflict of interest to government representatives between the duties of their office and their desire to advance their party and their political career.  The only way to resolve that conflict of interest and to get costs back under control is to return to the status quo ante: no bargaining rights for public employees.

Sid Saltfork wrote on March 06, 2017 at 5:03 pm

The two employees have a choice.  They can quit, and go else where for employment.  Face it, these are two political "stooges".  They do not have a case since this has been ruled on before.  The reason for public employee unions is to provide protection from political games, and nepotism.  AFSCME had signed contracts with democrats, and republicans over the years.

Articles like this one is just more political trash, propaganda bought by GOP tax breaks for "ink and paper".  Articles like this one may have worked in the past, but those days are over.