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Before voters can weigh in on November ballot, ‘Workers Rights Amendment’ must survive new legal challenge

Before closing out its truncated spring legislative session earlier this month, the General Assembly approved language that will be put to voters in November, asking whether Illinois should amend its constitution to add a so-called “Workers’ Rights Amendment” to guarantee the right to collectively bargain in a state with a long tradition of strong organized labor.

It was the second part of a two-year process — pushed for by the some of the most influential labor unions in Illinois — to get the question in front of voters in 2022; lawmakers already approved the exact wording of the constitutional amendment last spring.

Read more: Organized Labor Notches Win As Unionization 'Fundamental Right' Amendment Goes To Voters In '22

But those behind a new lawsuit filed Thursday hope to prevent the question from being printed on the ballot in the first place, claiming the proposed amendment would conflict with federal labor law and that Illinois — or any other state, for that matter — doesn’t have the right to enshrine such a wide-reaching labor law on its books.

Attorneys from the libertarian-leaning Liberty Justice Center and Illinois Policy Institute filed a complaint Thursday morning in Sangamon County Court on behalf of several Chicago Public Schools parents and members. The Chicago-based nonprofits were also heavily involved in the legal battle and eventual 2018 U.S. Supreme Court decision in Janus v. AFSCME striking down so-called “fair share fees” for public sector workers who don’t want to join the unions that represent their colleagues.

The proposed amendment would guarantee workers in Illinois have “the fundamental right” to organize and collectively bargain for agreements on wages, hours and working conditions, all three of which are normal elements in negotiating union contracts. But the amendment goes further, saying workers’ fundamental rights to organize also extend to “protect[ing] their economic welfare,” which the lawsuit alleges is well outside the scope of federal labor law — and could usher in a wave of frivolous lawsuits against businesses, they claim.

Though the National Labor Relations Act — and a bevy of court decisions further refining that federal labor law — doesn’t protect unionized employees from being laid off if their employer either shuts down or elects to use labor-saving technology that would make their jobs obsolete, Liberty Justice President Jacob Huebert said those two business decisions could be off the table for companies if unions make contract demands to the contrary under the umbrella of “protect[ing] their economic welfare.” Any business that refused to negotiate over such things could then face unfair labor practice charges, he said.

Both Huebert and Illinois Policy Institute attorney Mailee Smith, who also drafted the complaint, agreed that even if the proposed amendment stayed on the ballot and voters approved it in November, the amendment would eventually wind up in court, where they predict it would be found unconstitutional.

“It increases the potential for costly litigation for employers because that conflict between federal and state law would create legal questions that a court would have to decide,” Smith said. “It's much better to remove this amendment now, knowing it’s unconstitutional, than it is to put employers and the people of Illinois through that costly litigation when waiting for a decision on down the line.”

The ballot initiative will have a full-scale campaign behind it beginning later this spring, orchestrated by labor-backed independent expenditure committee Vote Yes for Workers Rights. The committee’s spokesman, Joe Bowen, defended the amendment’s language on Thursday, calling the ballot initiative “a tremendous opportunity” for Illinois workers to negotiate for “safe workplaces” and “better pay.”

“Frankly, we aren't surprised that big money special interest groups are trying to keep workers in Illinois from being able to vote yes for workers rights in a fair and free election,” Bowen told NPR Illinois. “We're confident that this amendment will be on the ballot in November…And I think that it's very telling that [the opposition] knows voters have this opportunity to make this choice and they’re doing everything that they can to remove that choice from the hands of working Illinoisans.”

The legal battle has a little more than four months to get resolved, as the State Board of Elections faces an Aug. 26 deadline to certify the November ballot, according to board spokesman Matt Dietrich. Early voting in Illinois begins in late September.

Vague on purpose

The lawsuit also takes issue with the vague wording regarding which workers the proposed amendment would apply to. The amendment’s language only refers to “employees,” and doesn’t specify whether that encompasses both public- and private-sector workers, whose labor disputes are governed by separate oversight bodies. Public sector workers in Illinois file labor complaints with the state’s Labor Relations Board (or Educational Labor Relations Board in the case of public school employees), while private-sector workers take their issues to the National Labor Relations Board.

Huebert stressed that courts have repeatedly found that federal labor law, and the NRLB by extension, is the only appropriate venue for disputes over collective bargaining in the private sector, lest states or local governments create a patchwork of labor laws resulting in an uneven playing field for both workers and employers.

“What Congress didn't want is to have state courts also enforcing a right to collective bargaining, when state courts might interpret the scope of that right differently,” Huebert said. “This is just an area where the state isn't allowed to do anything.”

While the amendment’s House sponsor State Rep. Marcus Evans (D-Chicago), said last spring during debate over the proposal that the amendment “could not apply to the private sector,” Bowen said the Vote Yes for Workers Rights Committee maintained the proposed amendment would apply to “all workers in Illinois, regardless of sector.”

Marc Poulos, executive director of Indiana, Illinois and Iowa Foundation for Fair Contracting, agreed with Huebert that litigation over what the amendment means is inevitable, but said that was the point.

According to Poulos, who also serves as counsel for the Vote Yes for Workers Rights committee, said the undefined nature of the word "employee" in the proposed amendment is 100% intentional, as it leaves courts room to determine whether a private sector worker that isn't covered by the NLRA — including independent contractors, farm workers, domestic workers and others like those in managerial jobs — should be covered by the Workers Rights Amendment.

"Our hope is...when [the amendment] passes, you have more employers that say, ‘You know, I'm not really sure what this whole ‘fundamental rights’ thing means, but I'm really not willing to find out,'" Poulos told NPR Illinois. "Because finding out means a whole bunch of litigation…And that's how you start making your jurisprudence around this particular amendment."

Poulos also said the proposed amendment's language is broad on purpose so that it can be responsive to possible future scenarios where Congress may curtail the NLRA's scope.

"That’s exactly how constitutional amendments should be drafted — very broadly — so they can stand the test of time," Poulos told NPR Illinois, emphasizing his view that constitutions should be viewed as "living documents."

Smith, however, warned that leaving it up to courts to call balls and strikes on both which private sector workers are covered by the amendment would mean those in jobs never before deemed appropriate for unionization — including those in managerial roles — would be able to organize.

Chicago Public Schools principals have been making a multi-year play in Springfield for that right, following similar moves in New York City, Denver and San Diego, Ca. The measure passed the House with Democratic votes this spring session but stalled in the Senate.

Smith also said that giving public sector unions greater latitude in the items over which they bargain could also have far-reaching effects on other parts of government. The Chicago Teachers Union, for example, went on strike in 2019 after bargaining stalled on the union's demands, which included a "social justice agenda" that insisted on more affordable housing.

But to Poulos, expanded definitions of workers' rights — or even entirely new ones — would be part of the natural evolution of both law and the labor force, which has undergone dramatic shifts in power and expectations over the last two years since COVID-19 hit.

"There’s been years and years of costly litigation for years over what First Amendment rights mean," Poulos said, pointing to the myriad cases filed every year over other exact contours of other federal constitutional provisions like the Second Amendment's right to bear arms or the Eighth Amendment's prohibition on cruel and unusual punishment.

"We happen to believe workers should have a fundamental right over terms and conditions of employment, over workplace safety," he said. "So to us, it’s very much worth going through [litigation to determine what workers rights should look like in the 21st century via] this constitutional amendment."

Rauner era reverberates

The proposed amendment has roots in former Gov. Bruce Rauner’s protracted battle with organized labor — a war he waged beginning nearly a decade ago when he began running for governor in 2013. Rauner, whose Republican views have a libertarian bent, often centered his campaign on promising to take on “government union bosses,” whom he argued have a chokehold on both Illinois politics and the state’s finances.

During his first months in office, Rauner advocated for so-called “right to work zones” in an effort to make Illinois more like neighboring Indiana or Wisconsin — two of 27 fully right-to-work states where joining the labor union that represents a particular group of workers isn’t a requirement to get or keep a job. Such measures significantly weaken unions’ collective bargaining power, which also translates to reduced political power, especially for the Democratic party, which has historically had union backing.

Only the town of Lincolnshire in Chicago’s northernmost suburbs took Rauner up on the idea, passing an ordinance that was twice struck down by federal courts. Kentucky also experimented with right-to-work zones during the same era, and courts in that jurisdiction upheld the laws, setting up what could have been a finale legal battle at the U.S. Supreme Court.

But in the first months of Gov. JB Pritzker’s term in office, the Democratic governor signed legislation banning right-to-work zones in Illinois, prompting the nation’s high court to dismiss the case as moot.

Right-to-work statutes (or bans thereof) is one exception to federal labor law’s general prohibition on states enacting their own labor laws that govern the private sector.

While Poulos pointed to language in the proposed amendment that would strengthen Illinois' 2019 right-to-work ban, he said organized labor in Illinois is "tired of having the political conversation" over right-to-work.

"We're having a fight about workers rights," he said, referencing essential workers' heavy burden during the pandemic. "We see that workers are taken advantage of. We see frontline workers, we see the nurses, we see the police, we see the firefighters...And the only thing in this country that workers have to rely on are statutory rights."

Poulos said the proposed amendment would be a paradigm shift from statutory rights that are subject to "the whim of politics," depending on the makeup of the legislature, to "fundamental rights."

“This amendment says, ‘Let's stop going to the legislature and passing droves of workplace laws in the legislature. Let's drive people to the bargaining table,'" he said. "You don't want the legislature walking in there every single time somebody says, ‘Make them stop doing this. It's unsafe,’ And then the legislature has to say, ‘You know what, that does seem unsafe. Here's what we're gonna do: We're gonna pass a new OSHA law."

Huebert, however, maintained that bargaining stalemates would inevitably end up in state courts, which he said are an inappropriate venue for private sector labor disputes.

"The federal courts have said that state courts should not get into this area, because you don't want one state saying one thing about what's a condition of employment, another state saying another thing, and both of those possibly conflicting with what the NLRB has said," Huebert said.

Republicans — even some who had stood by Rauner during Illinois’ two-year budget impasse that stemmed from his central fight against organized labor — voted in large numbers for that 2019 law. But the proposed amendment garnered far fewer GOP supporters last year.

At the time, State Rep. Andrew Chesney (R-Freeport) alleged Democrats pushed the amendment for no other reason than to appease organized labor, a major financial donor behind most of the party’s legislative races.

“This isn’t about men and women in hats slamming hammers and building stuff,” Chesney said. “These are the people right outside this door ready to send contribution checks to your campaign to get you re-elected.”

Rauner was also behind the 2018 U.S. Supreme Court decision striking down fair share fees nationwide, which has resulted in fewer public sector employees joining their unions, though the decision also mobilized organized labor in what was also a "Blue Wave" election year, which also swept Pritzker to an easy victory over Rauner.

The 2022 election cycle is the second swing for organized labor’s efforts to get its Workers’ Rights Amendment in front of voters. In 2020, organized labor lost a legal appeal to extend the legislative deadline to get constitutional amendments on the ballot, citing COVID-19. But the amendment effort had also been deprioritized by Pritzker, who wanted voters’ focus on one amendment: his signature campaign promise to replace Illinois’ flat income tax with a graduated tax. His so-called “Fair Tax” amendment failed amid competing big-money campaigns for and against the measure.

The Vote Yes For Workers Rights committee, which was established pre-COVID in early March of 2020, laid dormant for most of the last two years after labor lost its court battle to get the amendment on the ballot in 2020. But it's been fundraising consistently since November, raking in nearly $874,000 in the first quarter of 2022, mostly from organized labor.

This story has been updated.

Copyright 2022 NPR Illinois | 91.9 UIS. To see more, visit NPR Illinois | 91.9 UIS.

Meisel works for Capitol News Illinois.