?On Nov. 8, Illinois voters approved the Illinois Constitution Amendment 1, which amends the state constitution to guarantee workers a broad right to collective bargaining. Originally passed as a proposed amendment by the Illinois State Legislature on May 26, 2021, the amendment received 58 percent of the vote with more than 2.1 million ballots cast in its favor.
The amendment will have a significant impact on bargaining rights in both the public and private sectors, but faces potential preemption by the National Labor Relations Act (NLRA). Rather than track the language of federal or other state collective bargaining laws, the language of the Illinois amendment is arguably broader in a couple of areas. The language of the amendment raises questions about who is permitted to bargain with an Illinois employer, when such bargaining is permitted, and the scope of such bargaining.
For example, both the NLRA and Illinois public-sector labor law protect employees’ right to organize and bargain collectively regarding wages, hours, and other terms and conditions of employment. The amendment, however, adds employees’ right to bargain “to protect their economic welfare and safety at work.” The amendment does not define what is meant by the term “economic welfare,” but it arguably denotes a concept that extends beyond traditional NLRA terms and conditions of employment.
Under existing federal and state laws, once a union is certified as the collective bargaining representative for an appropriate bargaining unit, only the union may negotiate with an employer on matters relating to pay, wages, hours and other conditions of employment. The amendment, however, gives employees the right to bargain collectively “through representatives of their own choosing,” not just through unions. As a result, this language could potentially open the door for groups of employees, rather than a certified union, to bargain over terms and conditions of employment.
NLRA Preemption Doctrine
The amendment’s application in the private sector raises questions about the extent to which the NLRA preempts the subject matter covered by the amendment. The amendment applies to all employers, not just public-sector employers. Private-sector Illinois employers are expected to argue that the amendment cannot be applied to private-sector employers because its subject matter is preempted by the NLRA.
Federal preemption in the private sector stems from the Supreme Court’s interpretation of the NLRA, beginning in 1959 with the case San Diego Building Trades Council v. Garmon. It has consistently been recognized since that time. Generally, courts have applied preemption under the NLRA to expand to the entire subject matter of the NLRA.
The NLRA’s preemption of state law is broader than preemption that is recognized under other workplace laws. For example, federal laws, such as the Fair Labor Standards Act and Title VII of the Civil Rights Act, preempt state law only to the extent that federal law secures employee rights that are greater than those provided by state law. Therefore, to the extent the amendment is interpreted as establishing a constitutional right of all employees (as opposed to only certified unions) to bargain collectively, or to expand the topics of bargaining from those listed in the NLRA to include new topics, such as matters of economic welfare, this raises a significant question of whether courts will decide that the NLRA preempts the amendment in its entirety as applied to private-sector employees’ bargaining rights.
Indeed, this question has already resulted in legal action from opponents of the amendment, based on NLRA preemption. In April, a lawsuit was filed seeking to restrain and enjoin the amendment from being placed on the ballot on the basis that the NLRA already regulates private-sector collective bargaining, and therefore the amendment is subject to NLRA preemption. An Illinois appellate court ruled, however, that the issue was not ripe for challenge, and so the court did not address the merits of the preemption argument. Now that the amendment has passed, the NLRA preemption argument is expected to be the subject of future litigation.
Protection of Union Security
The amendment appears to block Illinois from becoming a right-to-work state. Right-to-work legislation prohibits compulsory union membership. Currently, 28 states are right-to-work states, including the nearby states of Indiana, Iowa, Michigan and Wisconsin.
Section 14(b) of the NLRA allows states to bar compulsory union membership as a condition of employment. The amendment, however, does the opposite by specifically banning any law that prohibits agreements between employers and labor organizations requiring membership in a union as a condition of employment.
Thus, this language would effectively block any future legislative attempt to enact a private-sector right-to-work law in Illinois. This language could be challenged based on NLRA preemption, but the outcome of any such legal challenge is uncertain.
In the public sector, the amendment could result in a states’ rights constitutional challenge to the Supreme Court’s stance on fair share fees. While the Supreme Court’s decision in Janus was based on the court’s interpretation of an Illinois statutory provision on fair share fees, the court’s analysis may change when faced instead with a constitutional amendment enacted by Illinois voters, as applied to Illinois public-sector employees. In such a case, the notion that fair share fees violate the First Amendment of the U.S. Constitution seems less compelling.
Conclusion
Given the open questions raised by the amendment, public- and private-sector employers alike should be aware of the amendment’s potential to significantly expand union rights. Nevertheless, it is anticipated that the amendment will be tested by extensive litigation, thereby giving Illinois workers and employers greater clarity as to the full extent of the amendment’s impact.
Jennifer Jones, Scott Mainquist, David P. Radelet and Dru Selden are attorneys with Littler in Chicago. © 2022. All rights reserved. Reprinted with permission.