Unionizing Business Owners? Some States Have Done It, but the Supreme Court Can Stop It

July 18, 2019
By Jacob Huebert

Most business owners understand that the government can force them to deal with a union if enough employees vote to unionize. But probably most business owners don’t think there’s any risk of the government forcing them to accept a union to represent themselves. That sounds nonsensical: Unions represent employees, not owners or managers.

Yet that’s exactly what has happened to the owners of daycare businesses in 18 states where the government has authorized a union to serve as the “exclusive representative” of daycare providers whose clients include families that receive state subsidies for their children’s care. These states even forced daycare owners to pay fees to a union until the U.S. Supreme Court declared the collection of union fees from unwilling subsidy recipients unconstitutional in 2014.

Katherine Miller, a daycare owner in Washington State, doesn’t want a union to speak for her. Yet the Service Employees International Union is doing so because the state has recognized it as her exclusive representative. So she filed a lawsuit challenging Washington’s law that gives the union that power, arguing that it violates her First Amendment right to choose what groups she will and won’t associate with. 

Lower federal courts ruled against her, and now she’s asking the U.S. Supreme Court to take her case. The Goldwater Institute is supporting her petition with an amicus brief filed today.

In the Goldwater Institute’s brief, we show that public-sector unions are the sort of “faction” the Founding Fathers sought to restrain in designing the Constitution—and allowing the government to unionize groups of private citizens will make the problem of faction worse.

The Founders used the term “factions” to refer to groups that would use the government to serve their own interests rather than the public interest. The Founders expected that, in a large and diverse republic such as ours, the large number of factions competing with each other in a system governed by checks and balances would prevent each other from obtaining too much power.

Today, public-sector unions are a prominent example of a faction: They seek to use the government to enrich themselves and their members at others’ expense. But they aren’t constrained by our republican system of government as a typical faction is, for several reasons.

For one, unlike other groups, public-sector unions can force the government to the bargaining table and compel officials to negotiate with them—typically behind closed doors, with no outsiders or dissenting employees there to present competing views.

Making things worse, unions engage in political activity to help choose the officials they negotiate with—effectively putting themselves on both sides of the bargaining table. And not only can union-backed officials give in to unions’ demands for more government spending; they also can authorize unionization of additional government employees—or, as in Washington State, people who aren’t even government employees or anyone’s employee—thereby delivering unions more members and even more money to fuel their agenda. In this way, unions become political perpetual-motion machines, funded by taxpayer money to demand more taxpayer money for the union and its members.

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. That’s one reason why salaries and pension benefits demanded by unions now overwhelm the budgets of states such as Illinois.

So when the government forces a group of private citizens like Katherine Miller to accept an exclusive representative to speak for them, it not only violates First Amendment rights; it also artificially creates and empowers new factions. That undermines an important purpose of the Constitution and republican government itself.

Miller’s case is not the first to ask the Court to end forced union representation of private citizens. Earlier this year, the Court had an opportunity to take the issue up in a case brought by personal caregivers—people who receive modest financial assistance from a state-run Medicaid program to care for a severely disabled family member—who the state of Minnesota forced to accept union representation. The Goldwater Institute filed an amicus brief in that case, Bierman v. Dayton, as well.

And there are more cases like these on the way, as daycare providers and personal caregivers across the country object to union representation that they didn’t ask for, and which makes no sense. 

The Supreme Court declined to hear Bierman, but it shouldn’t wait any longer to consider this issue. It should hear Katherine Miller’s case and end this unprecedented, unjustifiable violation of private business owners’ First Amendment rights.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.