7th Circuit tees up ‘fair share’ fee suit for High Court

By Joy Waltemath

By Lisa Milam-Perez, J.D.

A federal district court properly rejected a challenge brought by two Illinois state workers hoping to bar their unions from collecting “fair share” fees from nonmembers. The Illinois Public Labor Relations Act allows for such fees and the First Amendment does too, according to the U.S. Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, which, for now, is still standing (Janus v. American Federation of State, County, and Municipal Employees, Council 31, March 21, 2017, Posner, R.).

Under the Illinois Public Labor Relations Act, a union representing public employees can collect “fair share” fees from public employees who are not union members but who benefit from the union’s bargaining efforts and its role in administering the contract. Illinois Governor Bruce Rauner filed suit in 2015 seeking to halt the practice, arguing that by allowing the union to levy these fees, the statute violates the First Amendment, in that it compels employees to provide financial support to an organization of which they disapprove.

The district court dismissed the governor’s complaint, concluding he lacked standing to sue. But two public employees had moved to intervene. Despite the procedural improprieties of allowing intervenors to join a defunct lawsuit, the district court granted their motion for expediency’s sake. Their ultimate goal: to overrule the Supreme Court’s Abood decision, which allows for public unions to collect fair-share fees.

“Of course, only the Supreme Court has the power, if it so chooses, to overrule Abood,” Judge Posner wrote, acknowledging, as the plaintiffs did, that the district court and appeals court were simply hurdles to clear before they could seek High Court review. The lower court’s dismissal, and the Seventh Circuit’s affirmance of that dismissal, were formalities.

One of the plaintiffs, however, had previously filed suit in state court on the same facts: that the Illinois law compels him to pay fees to a union that is obligated to bargain on his behalf. He obtained relief from a state appeals court, which in 2014 held that the Illinois Labor Relations Board abused its discretion when it dismissed his charges that his union failed to grant him a religious exclusion from the agency fee, as the state statute allows. The plaintiff did not assert a First Amendment claim in his earlier litigation, though—and he could have, since it was relevant to whether the Illinois Labor Relations Board acted unlawfully. Because the plaintiff already had a “full and fair opportunity” to have his challenge heard in court, his instant claim was properly dismissed on preclusion grounds.

Source:: 7th Circuit tees up ‘fair share’ fee suit for High Court