May 17, 2019
By Jacob Huebert
In last year’s Janus v. AFSCME decision, the Supreme Court ruled that governments
can’t make their employees pay fees to a union. As a result, some five million
government employees across 22 states who had been forced to pay fees now have
the freedom to choose which private organizations’ political advocacy they will
and won’t support with their money, just like the rest of us.
But although those government workers no
longer have to pay fees, unions in those 22 states still act as workers’
“exclusive representative” in collective bargaining. In other words, the law
still authorizes public-sector unions to speak for all unionized government
workers—even if some workers who aren’t union members would rather speak for
themselves.
As Justice Alito’s opinion in Janus recognized, foisting an “exclusive
representative” on government workers to speak on their behalf is “a
significant impingement on associational freedoms that would not be tolerated
in other contexts.” Therefore, since Janus,
numerous lawsuits across the country have been asking federal courts to end
unions’ power of exclusive representation for violating workers’ First
Amendment right to freedom of association.
Two of those cases recently arrived at the
Supreme Court, supported by amicus briefs from the Goldwater Institute. But the
Court declined to take up the issue—for now.
In Bierman v. Walz (formerly Bierman v. Dayton), eight Minnesota parents who receive financial assistance through a state-run Medicaid program to take care of their severely disabled children—but aren’t government employees—challenged a state law that authorizes a union to act as their exclusive representative. Even if the government may appoint an exclusive representative to speak for its employees, they argued, surely it can’t appoint representatives to speak for citizens who aren’t even government employees. To do so turns our system of government—in which the people are supposed to choose their own representatives—on its head.
In Uradnik v. Inter
Faculty Organization, a public university professor, also in
Minnesota, objected to a state law that authorizes a union to speak as her
exclusive representative, even
though she disagrees with many positions the union takes and would prefer to
speak for herself. If the Court had taken her case, it could have ended
exclusive representation for all public employees nationwide.
In both
cases, the Goldwater Institute’s briefs explained how public-sector unions are
like the “factions” the founders sought to constrain when they designed the
Constitution–and how unions’ special legal privileges, including their power
of exclusive representation, make them especially dangerous and undermine our
republican system of government. Because of their unique privileges,
public-sector unions in many places have not been reined in by the majority or
counteracted by the other factions competing for power, as the Founders
expected that factions would be. That’s one reason why salaries and pension
benefits demanded by unions now overwhelm the budgets of many state and local
governments where public-sector unions are influential.
Fortunately,
Bierman and Uradnik are not the end of the road for this issue; the fight to
end exclusive representation is far from over. The justices might think the
issue is important—as they suggested in Janus—but could have had reasons why they believed these
were not the right cases at the right time. For example, Uradnik was an appeal from a denial of a preliminary injunction,
which is not ideal for Supreme Court review. After the lower courts issue their
final decisions in the case, the Supreme Court could still take it up. Or it
could take up one of the many others that are on the way.
As those
cases arrive at the Supreme Court, the Goldwater Institute will continue to
remind the justices and the public that ending exclusive representation is
important, both to protect workers’ First Amendment rights and to ensure that
special privileges don’t give unions undue power and influence over the
government.
Jacob Huebert is
a Senior Attorney at the Goldwater Institute. He was part of the team that
litigated Janus v.
AFSCME.
