By George Leef
A series of recent decisions by the Supreme Court has eroded the power of public-sector unions to coerce workers they claim to represent. Most significantly, last year’s decision in Janus v. American Federation of State, County, and Municipal Employees held that the First Amendment prevents public unions from forcing workers to pay dues for representation they do not want.
So, where does that leave the many state laws that confer exclusive representation upon public unions, such as faculty unions at state colleges and universities? The same First Amendment freedom of speech and association arguments that disallow compulsory membership and mandatory dues would seem to pertain just as strongly to exclusive representation laws. Such laws prohibit public workers from speaking for themselves in dealings with the institution, which is flatly inconsistent with the Court’s First Amendment jurisprudence.
A case that attacks exclusive representation for state university faculty members has been appealed to the Supreme Court. In Uradnik v. Inter Faculty Organization, St. Cloud State University, the plaintiff is a professor who objects to the state law granting the faculty union, which she declines to join, the sole power to bargain for and in all other respects represent the interests of the faculty. Accepting the union as her exclusive representative is a condition of Kathleen Uradnik’s employment, a condition she does not think is constitutionally permissible.
She filed suit in federal district court last July. Both the district court and the Eighth Circuit Court of Appeals ruled against her on the grounds that a 1984 Supreme Court decision (Minnesota Board for Community Colleges v. Knight) was controlling precedent. Her petition to the Supreme Court to hear the case argues that the lower courts were mistaken in relying on Knight, which did not reach First Amendment issues.
The claim that the Supreme Court accepted in Knight was that states had a compelling interest in dealing only with one representative because that promoted “labor peace.”
That was precisely the argument that settled the issue in a 1977 Court decision, Abood v. Detroit Board of Education. In Janus, the Court overruled Abood, so cases based on it are on thin ice. Uradnik’s petition states, “Vague references to ‘labor peace’ aside, no one has ever explained how compelling public employees to accept unwanted representation furthers any compelling or legitimate state interest.”
The National Association of Scholars has filed an amicus brief in the case. The brief, written by attorney William Haun, states, “Many faculty members chose not to join a union precisely because they are well aware that unions engage in ideological advocacy, and they do not want any association with it.” At City University of New York, to cite just one example given, the faculty union has pushed the school to become a “sanctuary campus.” No individual faculty member could voice opposition to the union’s position directly to the university since the “Professional Staff Congress” legally represents all of the faculty in dealings with the university.
Exclusive representation status for labor unions is a relic of the 1930s, when FDR’s administration, eager to enhance the power of unions, included it in the National Labor Relations Act, thus trampling upon the traditional right of workers to negotiate and speak for themselves if they wanted. States where unions are politically strong, such as Minnesota, have granted public unions similar monopoly power. But if, as Janus held, workers cannot be forced to pay for a union’s services if they do not want to, how can those same workers be forced to accept union speech and advocacy, supposedly on their behalf?
As the NAS brief points out, “it is no stretch to imagine that a nonmember’s employment contract could be subjected to a strike, unreasonably delayed, or end up with less favorable terms because a union chose to privilege ideological aims over ‘bread and butter’ issues.”
We probably won’t know until spring whether the Court will accept Uradnik, but if it does, it seems there’s a strong likelihood that individual freedom will again win and politically-given union power will be further curtailed.