Illinois labor board says government unions cannot discriminate against nonmembers

Mailee Smith

Staff Attorney and Director of Labor Policy

Mailee Smith
November 30, 2022

Illinois labor board says government unions cannot discriminate against nonmembers

Illinois government unions wrote the law that gives them a monopoly over all government employees in a unionized workplace. And that means they can’t discriminate against workers who choose not to be members.

The Illinois Labor Relations Board recently issued a decision confirming government unions must represent nonmembers.

Specifically, the board held:

  • a government union cannot deny representation in grievances or disciplinary procedures because an employee is not a union member. Doing so is a threat against protected activity – i.e., choosing not to be in a union.
  • a government union cannot base representation in a grievance on an employee’s union membership status. Doing so is a breach of its duty of fair representation.

In short, union membership status can play no role in a grievance or disciplinary procedure. While unions have considerable discretion in handling grievances, that discretion does not include discrimination based on membership status.

The union could appeal the board’s decision to state court. But in the meantime, the more than 38,000 government workers who have chosen to leave government unions since 2017 have a concrete labor board decision confirming state law prohibits union discrimination against them.

Government unions have long held a monopoly over all employees in a unionized workplace, and that was by the unions’ own design. They wrote the laws that require them to represent all workers. If they wanted to change that, they easily could do so through the legislative process.

Unions wrote the laws that require them to represent all workers

Unions such as the American Federation of State, County and Municipal Employees lobbied for the monopoly to represent all government workers in Illinois – even workers who are not union members.

Government employer-employee relations in Illinois are controlled by two statutes: the Illinois Educational Labor Relations Act for educational workers and the Illinois Public Labor Relations Act for other government workers.

Both hold that a union representing government workers in a bargaining unit is the “exclusive representative,” meaning that union – and no one else – can represent all workers in the unit. That applies to members and nonmembers.

This was a choice made by the unions themselves. Some of the state’s biggest unions – including AFSCME, the Illinois Education Association, the Illinois Federation of Teachers and the AFL-CIO – registered their support for the legislation creating the laws.

In fact, their involvement in developing Illinois’ laws goes even farther than that. The IEA and IFT drafted the bill that would become the Illinois Educational Labor Relations Act, and AFL-CIO was the primary author of the bill that became the Illinois Public Labor Relations Act.

Government unions in Illinois are a powerful political force and could instigate legislative change if they wanted to. But instead, they stymie efforts to allow nonmembers to represent themselves.

That means nonmembers aren’t “free riders,” but are forced riders. While they do not have to pay fees to a union, they are still forced to accept union representation regardless of whether they want that representation.

How do government employees opt out of union membership?

Typically, Illinois government unions require members to send a written opt-out request. State and local government employees interested in joining the more than 38,000 other Illinois employees who have opted out of their unions can obtain everything they need at LeaveMyUnion.com.

Union members can opt out of membership at any time. However, some unions only allow members to stop paying dues at certain times during the year. The best way to determine that window of time is to submit opt-out paperwork, prompting the union to respond with information on the opt-out timeline.

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