Over the past two years, Right-to-Work proponents have been dealt several setbacks, most notably when the U.S. Supreme Court deadlocked in Friedrichs v. California Teachers Association, a case concerning the issue of whether public employees who do not join a union can be required to pay an “agency” or “fair share” fee to cover costs that the union incurs, by issuing a non-precedential 4-4 per curiam opinion affirming the lower-court decision. More recently, in Janus v. AFSCME, the U.S. Court of Appeals upheld the district court’s dismissal of Governor Rauner’s litigation challenging fair-share fees on the grounds that he did not have standing because he was not subject to the fair share fees requirement. In the same way the plaintiff’s in Friedrichs v. California Teachers Association sought an expedited path to have the case heard by the U.S. Supreme Court, the plaintiffs in Janus are virtually pursuing the same strategy. And back in January 2016, a federal judge found that the Village of Lincolnshire’s Right-to-Work ordinance is preempted by the National Labor Relations Act, and that only states and territories have the authority to enact such laws. The dispute arose in late 2015 when an Illinois home rule municipality passed a “right-to-work” ordinance establishing worker freedom. Under the “right-to-work” ordinance, individuals can work for a private company in union-protected positions without having to join the union or pay the full share of union dues. In a zone designated right-to-work, non-union employees also get benefits negotiated by a labor union with company management. The ordinance approved late last year only applied to private companies within the village and not to public-sector employees, such as police officers.
On the heels of these cases, the Illinois House Labor and Commerce Committee passed a bill to prohibit municipalities in Illinois from enacting local Right-to-Work measures. The bill is SB 1905, otherwise referred to as “the Collective Bargaining Freedom Act,” and it provides that it is the policy of the State that employers, employees, and their labor organizations are free to bargain collectively and that the authority to enact laws or rules that restrict the use of union security agreements between an employer and a labor organization vests exclusively with the General Assembly. In other words, SB 1905 prohibits municipalities from enforcing any such law or rule respective to Right-to-Work.
The House Labor and Commerce Committee passed SB 1905 on a 15-10-1 vote along party lines. SB 1905 now proceeds to the full House of Representatives for a hearing. Although the bill is still in its infancy and Illinois lawmakers are moving forward with SB 1905, the Village of Lincolnshire’s Right-to-Work law is already playing out in the courts. That case has been appealed to the U.S. Court of Appeals for the Seventh Circuit, which previously upheld the legality of Indiana’s right-to-work but on different grounds and did not address the issue of whether local governments constitute a political subdivision of their state that have authority to enact right-to-work laws. Notwithstanding, the issue here is similar to the Sixth Circuit’s decision in Hardin that found counties and cities are political subdivisions of the state that can enact right-to-work ordinances. If the Seventh Circuit reaches the same conclusion the Sixth Circuit did, then Illinois cities will be able to pass right-to-work themselves. But, if the Seventh Circuit disagrees, this dispute is likely headed to the U.S. Supreme Court so that the circuit split concerning whether local governments have authority to enact right-to-work legislation can be fully resolved.
Notwithstanding the current litigation, if SB 1905 passes, it would mark a departure from neighboring states, particularly Indiana, Iowa, Missouri, and Wisconsin, Kentucky, as well as Kentucky, all of which have enacted Right-to-Work laws. It would also conflict with various public statements and tweets made by President Trump who, along with Vice President Pence who championed Right-to-Work legislation while the governor of Indiana, has indicated a preference for Right-to-Work laws. Although there have been recent setbacks in the Right-to-Work movement, the Illinois legislature is not only seeking to regulate and effectively preempt municipalities, it also likely recognizes that with the conservative majority in the U.S. Supreme Court, legal challenges to the validity of Right-to-Work laws are now in jeopardy.
We will continue to update you on the legislative path of SB 1905. Should you have any questions about Right-to-Work issues or SB 1905 please contact us.
