Private: The Continued Assault on Public Unions: Illinois Edition

by Bill Lurye, General Counsel, and Matt Stark Blumin, Associate General Counsel, at American Federation of State County and Municipal Employees (AFSCME)

On February 9, less than a month into his first term as governor of Illinois, Bruce Rauner issued an executive order barring state employee unions from collecting fair share fees, thus unilaterally transforming Illinois into a right-to-work state for state employees.  He justified this extreme act by arguing that, in his opinion – though contrary to Supreme Court precedent dating to 1977 – such fees violate the First Amendment.  Rauner’s anti-union executive order is a blatantly illegal power grab, and unions have filed suit to overturn it.

As is the case in many states, Illinois’ public sector labor relations statute expressly authorizes collective bargaining agreements allowing unions to collect fair share fees, and over 40,000 state employees are covered by collective bargaining agreements (CBAs) that include fair share fee provisions.  Yet, despite strong separation of powers language in the Illinois Constitution that prevents him from legislating, Governor Rauner has declared that he will not turn over any of the contractually owed fair share fees to unions, no matter what the duly enacted state labor law statute says.

First, some background on fair share fees in Illinois.  Just like a private sector union under the National Labor Relations Act (NLRA), a public sector union under Illinois law is required to represent every employee in a unionized bargaining unit whether or not the employee is a member of the union.  This means that the unions have to do lots of costly work on behalf of nonmembers, like negotiating the CBA fairly on the nonmembers’ behalf and handling any grievances they have.  Fair share fees represent the cost to the union of providing those services to nonmembers, and nothing more.  (Members who pay full union dues additionally fund other work by the union, such as lobbying or political donations, that fair share fees don’t cover.)  As even Justice Scalia has recognized in his concurrence in Lehnert v. Ferris Faculty Association, fair share fees “allow the cost of . . . the union’s statutory duties to be fairly distributed; they compensate the union for benefits which ‘necessarily’ – that is, by law – accrue to the nonmembers.”

So why would Governor Rauner issue an executive order denying unions the fair share fees they are statutorily owed for the work they are statutorily forced to do on behalf of nonmembers?  There are two reasons, and both put politics above law.  First, the governor is currently in negotiations with state employee unions over new CBAs, and freezing funds to the unions is an attempt to put pressure on the unions at the bargaining table so they will agree to let Rauner cut wages and benefits for middle-class state employees.  Second, the governor has made no secret of his ideological anti-union agenda, including his desire to see the Supreme Court overturn Abood v. Detroit Board of Education, which unanimously held that fair share fees are constitutional.  By effectively inviting a legal attack to his executive order, Governor Rauner seeks to pursue both goals simultaneously, reducing (at least until a court finds otherwise) the funds available to the unions during bargaining while teeing up the issue for the Supreme Court.

Make no mistake – Rauner’s twin objectives have one common purpose: paying middle-class workers less and taking money out of their already threadbare pockets to line the trousers of the rich.  This is the same playbook used by Rauner and his friends in the world of private equity, who squeeze profits out of companies by cutting worker wages and returning the difference to investors.  Now that he’s governor of Illinois, Rauner hopes to apply that approach to the public sector, using the money he saves by cutting state employee wages and benefits to fund tax cuts that primarily benefit the wealthy – including Rauner himself.  So, as usual, the predictable result of all this union busting will be increased income inequality between the owning class and the working class, plain and simple.

But if recent history is any guide, the unions should prevail in the end.  For Rauner is not the first Republican governor who, at the outset of his administration, unwisely attempted to ignore his state constitution’s separation of powers in an attempt to weaken public employee unions.  On his first full day in office as governor of New Jersey in 2010, Chris Christie signed an executive order restricting political donations from public employee unions, but the New Jersey Court of Appeals held that Christie could not make such a sweeping reduction to the unions’ rights without signing legislation passed by the legislature, as required by the state constitution.

Like Governor Christie in New Jersey, Governor Rauner in Illinois has to govern a state with a Democratic legislature.  Also like Governor Christie, Governor Rauner has bypassed that legislature to directly attack public sector unions, rather than trying to govern in a bipartisan fashion.  And, again like Governor Christie, Governor Rauner’s illegal power grab is sure to be found a violation of state law.  Whether the Supreme Court blesses his action is another question.

Labor and Employment Law, Supreme Court