Public Employees Won Big Over Unions This Summer. Here’s the Next Fight Ahead.Sep 04, 2018
This opinion piece appeared in The Daily Signal.
This past Labor Day weekend, it was fitting to honor and celebrate the hardworking public servants who teach our children, pave our roads, and serve in state and local government across the country.
Unfortunately, many of these servants are being denied their free speech rights by state governments that force them to accept representation by a labor union. We owe it to them to fix that problem.
In late June, the Supreme Court freed public workers from a related burden in the case of Janus v. AFSCME, ruling that states could not force them to subsidize union speech with their own money. After the ruling, The Heritage Foundation’s David Kreutzer and Rachel Greszler wrote, “Hopefully, the next win for workers’ freedom will be an end to exclusive representation.”
Mere hours after the Supreme Court handed down the Janus ruling, the Buckeye Institute filed the first of its three cases on exactly that issue, setting an ambitious plan in motion to win this next battle for freedom and to eliminate compelled exclusive representation.
The Buckeye Institute is representing plaintiffs Kathy Uradnik of Minnesota, Jade Thompson of Ohio, and Jonathan Reisman of Maine. They are sympathetic to unions and supportive of their colleagues’ right to be represented by unions. What they are seeking is to affirm their own First Amendment rights of free speech and free association not to accept a union as their own representative. In other words, they don’t want the government to appoint a labor union to speak in their names.
Prior to the Janus decision, states could not require public-sector employees to join a union, but they could still make non-members pay a so-called “fair share” or “agency” fee to subsidize the union’s speech in collective bargaining and other activities.
In Janus, the Supreme Court held that such fees were unconstitutional because they infringe on the employees’ First Amendment rights of free speech and association. In so ruling, Justice Samuel Alito recalled Thomas Jefferson’s dictum that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.”
After Janus, non-members are no longer required to pay for representation that they do not want, which itself is a tremendous victory for workers, for fairness, freedom, and constitutional rights.
Union leaders were quick to publicly object to the Janus decision, saying that unions should not have to represent non-members who refuse to pay their “fair share” fees—and that doing so was enabling free-riders to benefit from the unions’ efforts without paying for them.
So to now say that someone doesn’t have to pay for [collective bargaining] but still gets all the benefits—it’s like saying to you, you have to pay to join the gym, but the person next to you can still come and use the gym and not have to pay for it. That’s the unfairness of it.
That kind of unfairness, said Jerry Green, president of United Steelworkers Local 2599 in Pennsylvania, “doesn’t sit right with me at all.”
Oh, the irony.
Unions have always insisted that they must be the “exclusive representative” for all employees, irrespective of whether that representation is wanted. And unions have lobbied for precisely that role for decades now. It gives them power and influence. That’s why, when striking collective-bargaining agreements, unions almost always demand to represent all employees, even those who refuse to join the union.
But as the Janus majority opinion explained:
Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer.
The next legal challenge after Janus will indeed come from these same so-called free riders, the non-members who demand the freedom to negotiate, speak, and bargain for themselves, rather than accept union representation that they do not want.
They don’t want a union serving as their “representative” or “agent,” to put words in their mouths. They insist on speaking for themselves—a right shared by all Americans.
If plaintiffs like Thompson, Uradnik, and Reisman succeed in securing their First Amendment rights in court, unions will be released from representing these “freeloaders.” Non-members will be able to speak for themselves.
Eliminating exclusive representation is the logical solution for both unions and workers. Let’s see if we can get the court to agree as well.
Robert Alt is the president and CEO of the Buckeye Institute in Columbus, Ohio. Alt previously served as a director in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.