“Free Rider” Argument Fails: Without Union Dues, Public Unions Remain Exclusive Representatives of Public Employees

The U.S. District Court for the Northern District of Illinois has ruled that the Supreme Court’s decision in Janus v. AFSCME, Council 31 does not relieve public unions of their obligations to serve as the exclusive representative of public employees. Public unions must continue to represent all employees, union members or not, “fairly, equitably, and in good faith.”

In Sweeney v. Raoul, the Plaintiffs James M. Sweeney and the International Union of Operating Engineers, Local 150, AFL-CIO (collectively “Local 150”), alleged that the Illinois Public Labor Relations Act (“IPLRA”) violates their First Amendment rights following the reasoning set forth in Janus.

The issue in Janus pertained to agency fees and fair-share fees required under the IPLRA. In essence, the IPLRA required non-members to pay union dues, even when the non-member disapproved of the union’s platforms and views. The Supreme Court held that the IPLRA violated non-member’s First Amendment rights by requiring the non-members to pay said dues.

Since the Supreme Court’s decision in June 2018, the Plaintiff, Mark Janus, has sought damages from AFSCME for the fair-share and agency fees he had previously paid. However, the Seventh Circuit Court of Appeals has rejected this request. As recently as November 5, 2019, the Seventh Circuit noted that “even with payments of zero from objectors, the union still enjoys the power and attendant privileges of being the exclusive representative of an employee unit.” The Seventh Circuit held: “The only right the Janus decision recognized is that of an objector not to pay any union fees. This is not the same as a right to a free ride. Free-riding is simply a consequence of exclusivity; drop the duty of fair representation, and the union would be free to cut off all services to the nonmembers.”

In Sweeney, Local 150 argued that “unions and union members have the right under the First Amendment to refuse to associate with free-riding nonmembers. These free-riders increase the financial burden on dues-paying members and adversely affect the members ability to pursue collective efforts.” Relying on Supreme Court and Seventh Circuit precedent, the Northern District did not interpret Janus so broadly – Janus was clear: “avoiding free riders is not a compelling interest.”

In sum, the issues of union dues and exclusive representation are not mutually exclusive. The Supreme Court’s decision in Minnesota State Bd. for Community Colleges v. Knight remains controlling – public unions are the exclusive representatives of all public employees, despite whether the employees they represent pay any union dues.