Seventh Circuit Punts on Union’s Challenge to Represent Nonmember Employees

March 18, 2021

In 2018, the Supreme Court decided, in Janus v. AFSCME, that employees in bargaining units did not have to pay union fees if they did not belong to the union. The decision was based on an individual’s First Amendment right to not be compelled to pay money to or associate with a group. Several labor unions have been increasingly concerned with the potential of losing dues paying membership, while still representing nonmembers in the bargaining units.

The Seventh Circuit was recently faced with a challenge by the International Union of Operating Engineers Local 150 (Local 150), in Sweeney v. Raoul, arguing that forcing a union to represent nonmembers violates the union’s rights of free speech and association. The lower court ruled against Local 150 on the basis that the Illinois law requiring one union to be the exclusive representative of a group of employees remains good law, all Janus did was prohibit an employee from paying dues to a union to which the employee did not belong.

The Seventh Circuit did not simply uphold the lower court’s denial of Local 150’s claim, but rather vacated the substantive ruling, and dismissed Local 150’s claim because it did not involve an active case or controversy on two bases: (1) no nonmember had demanded Local 150’s representation in a grievance proceeding, meaning there was no injury to the union in fact; and (2) the named defendants, the Illinois Attorney General and the Illinois Labor Relations Board, had taken no action against Local 150, or any union, to compel representation of a nonmember, meaning they were not proper defendants.

What the Seventh Circuit was really doing was preserving any substantive ruling on the merits of the case so that a union could raise this argument in the future with specific facts. To that end, the court acknowledged that the “question at the heart of Local 150’s lawsuit is important to public unions and remains unsettled. It just needs to await resolution within the confines of a concrete and particularized dispute between a public union and nonmember demanding fair representation.”

For public employers, the takeaway is that there is almost certainly going to be a legal battle in the near future to further define when and how a nonmember must pay for union representation in a grievance proceeding. The outcome may require modifications to collective bargaining agreements and/or personnel policies, to address how deductions might be made for nonmembers within bargaining units.