Jim Dey | After Janus loss, unions again playing defense


When Bruce Rauner ran for governor of Illinois four years ago, he pledged to “shake up Springfield.”

Rauner did shake up Springfield, but he didn’t change it much. It’s still the same rat hole, buried in debt, deficits and the derision of angry Illinois residents.

The Rauner Rebellion (2015-18) against the corrupt status quo was no more successful than the Whiskey Rebellion (1791-94) against the first tax imposed on a domestic product by the newly formed federal government.

But while falling short of his goals in many policy areas, Rauner made progress in his effort to reduce the political power of public employee labor unions by hitting them in the wallet.

Last summer, in a lawsuit initiated by Rauner shortly after he took office, the U.S. Supreme Court ruled by a 5-4 vote that public employees who do not wish to join a union cannot be forced to make financial payments — called “fair share” payments — to a union.

It remains to be seen how much of a financial impact nationwide the court’s ruling will have. But Rauner’s goal was to reduce unions’ political power by seeing to it that they have fewer financial resources to spend on electing friendly officeholders with whom they’ll negotiate contracts.

That case — Janus vs. AFSCME — is now history.

Now, there’s another case coming around the bend that also could have a major impact on unions’ political power.

On Sept. 28, the 7th Circuit Court of Appeals in Chicago ruled that federal law bars local communities, in this case Lincolnshire, from creating local right-to-work zones that ban union shops in the private sector.

That’s the beginning of the story, not the end.

The 7th Circuit’s unanimous ruling conflicts with a unanimous 2016 ruling by the 6th Circuit Court of Appeals in Cincinnati that held federal law permits local communities, in this case Hardin County, Ky., to pass their own right-to-work laws.

With two federal circuits at odds over the law, the next stop should be the U.S. Supreme Court in Washington, D.C.

“That’s the kind of case the Supreme Court likes to take,” said Jeffrey Schwab, a senior attorney for the Liberty Justice Center in Chicago.

Schwab said a petition asking the high court to review the Lincolnshire case is due in mid-December.

Unlike the Janus case that invoked high-profile issues like free speech, the right-to-work controversy is a matter of the statutory interpretation of Section 14(b) of the National Labor Relations Act.

Writing the majority decision in the 7th Circuit, Justice Diane Wood held that the federal law pre-empts local communities from taking action by allowing only states to adopt right-to-work policies.

“Permitting local legislation under section 14(b) threatens ‘a crazy quilt of regulations.’ The consequence of such diversity for both employers and unions would be to subject a single collective-bargaining relationship to numerous regulatory schemes, thereby creating an administrative burden and an incentive to abandon union security agreements,” Wood wrote.

Coming to a different conclusion, 6th Circuit Justice David McKeague concluded that counties and other “political subdivisions” of a state are free to exercise the authority the state grants them as they wish unless Congress has “clearly stated to the contrary.”

Key to Lincolnshire’s legal argument is its status as a home-rule community that allows it to exercise the same powers as the state with the exception of any powers specifically denied them.

Given the intense labor support for Democratic gubernatorial candidate J.B. Pritzker, it would be no surprise, assuming Pritzker is elected, if he and the Democratic-controlled legislature moved quickly next year to bar local entities from passing right-to-work laws.

Proponents of the right-to-work laws say it’s important for individual workers to be free to decide for themselves if they wish to join a labor union, that it’s wrong to make union membership and payment of dues to the union a condition of employment.

Right-to-work opponents, however, insist that the only intention of right-to-work laws is to weaken unions and make it harder for them to bargain effectively on behalf of their members.

Jim Dey,a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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October 10, 2018 at 07:09AM

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