Cook County Record

Lawsuit: Pro-Union IL Constitutional Amendment Would Clash With Federal Law, U.S. Constitution, Must Be Struck Down

April 21, 2022

(Cook County Record)—A group of Cook County residents have filed suit to challenge the efforts of labor unions and their Democratic allies in Springfield to rewrite the Illinois state constitution to create an unfettered “right to collectively bargain,” a revision critics say would give labor unions the power to use union contracts to supersede state law, while violating federal law, in the process.

On April 21, attorneys from the Liberty Justice Center and from the Illinois Policy Institute, both of Chicago, filed a petition in Sangamon County Circuit Court in Springfield, seeking permission to file a complaint challenging the ability of the Democrat-dominated Illinois General Assembly to place the measure, generally known as Amendment 1, before voters on the ballot this fall.

“Amendment 1 violates the U.S. Constitution and must be taken off the ballot,” said attorney Jacob Huebert, of the Liberty Justice Center, in a prepared statement released when the petition was filed.

“Federal law protects and regulates collective bargaining in the private sector. This attempt to create a state-law right to private-sector collective bargaining on top of that violates federal law and the Supremacy Clause of the U.S. Constitution.

“The Illinois Supreme Court has repeatedly ruled that unconstitutional proposals cannot go before the voters, so the courts should order state officials to remove Amendment 1 from the ballot.”

Named plaintiffs in the action include Sarah Sachen, Ifeoma Nkemdi, Joseph Ocol and Alberto Molina. They all are identified as taxpayers residing in Cook County, who claim the state’s efforts to pass and propose the amendment amount to using public funds to promote an illegal addition to the state constitution.

In 2021, the Democratic supermajority in the Illinois General Assembly decided to ask Illinois voters in the fall of 2022 whether to amend the Illinois state constitution to forever enshrine a right to collectively bargain.

That idea has long been sought by labor unions, seeing in such a right an ability to cement and grow their already considerable political power in Illinois.

Supporters of the measure have touted Amendment 1, as it is designated legislatively, as pro-worker legislation, essentially designed to forever forbid any efforts to pass laws that could weaken the power of labor organizations, or perhaps turn Illinois into a right-to-work state, like most of its neighbors, and much of the country.

However, critics of Amendment 1 say the actual language of the amendment would do far more than what supporters have indicated.

Analysis from the libertarian Illinois Policy Institute, for instance, asserts Amendment 1 would allow labor unions to use union contracts to ignore a host of state laws, and allow unions to obliterate any limits on what they could demand.

In the proposed lawsuit, the plaintiffs argue that language would impermissibly bring the state constitution into conflict with federal law and the U.S. Constitution.

The plaintiffs particularly center their complaint on a “fundamental right to collective bargaining” that would be enshrined in the state constitution by Amendment 1.

Much of the discussion concerning Amendment 1 to this point has focused on its potential benefits for government unions and the potential danger that could mean for Illinois taxpayers left to foot the bill for union demands, with only limited recourse to fight it.

But in the complaint, the plaintiffs note the amendment draws no distinctions between the rights of unions representing government workers and those representing people working for private companies – so-called “public sector” and “private sector” unions.

This, the complaint said, means the fundamental right to collective bargaining would apply to private sector workers in Illinois, as well.

And that would run afoul of the National Labor Relations Act, the federal law enacted to protect and govern labor rights and labor-employer relations throughout the U.S.

According to the complaint, the NLRA affords private sector workers only a “limited right” to collective bargaining, subject to a host of conditions and exemptions.

The complaint, for instance, notes that retail workers can only unionize under the NLRA if they work for a shop that earns more than $500,000 a year.

Amendment 1, however, would expose all employers, of all sizes and types, in Illinois, to potential union organizing actions, plaintiffs said, contrary to the NLRA.

Further, the plaintiffs contend Amendment 1 contains language that would greatly expand unions’ abilities to negotiate over items and concepts that now are excluded under federal law.

While the NLRA allows unions to only negotiate over “wages, hours, and other terms and conditions of employment,” Amendment 1 would give unions the right to negotiate over “wages, hours, and working conditions, and to protect economic welfare and safety at work.”

This could encompass virtually every aspect of an employer’s business, potentially giving unions veto power over such decisions as whether to purchase equipment or to close an underperforming portion of a business, according to the complaint.

“… By giving employees a right to bargain ‘to protect their economic welfare,’ Amendment 1 would give Illinois private-sector employees greater collective-bargaining rights than the NLRA,” the complaint said.

Finally, they argued Amendment 1 would violate provisions in the NLRA guaranteeing rights to so-called exclusive representation – meaning employers need not negotiate with more than one union for the same bargaining unit of workers – and would essentially create a right to union representation that would allow unions in Illinois to sidestep federal oversight in state court.

By conflicting with the NLRA, the plaintiffs said Amendment 1 would come into conflict with the so-called Supremacy Clause of the U.S. Constitution, which forbids states from assuming powers already claimed by the federal government.

The plaintiffs are seeking a court order declaring Amendment 1 illegal, and thus ineligible to go before voters.

“The language as written in Amendment 1 is too broad,” said attorney Mailee Smith, of the Illinois Policy Institute.

“If Illinois were seeking solely to make right-to-work unconstitutional in Illinois, the phrasing would have reflected that, as it did in a previous version of this amendment filed in 2019.

Instead, the current phrasing creates a litany of problems, could lead to unparalleled power by a special interest group and most importantly, is unconstitutional.”