Freedom Foundation

Freedom Foundation brief supports Maine professor’s Supreme Court appeal in labor case

Jonathan Reisman may be a professor of economics and public policy at the University of Maine at Machias, but, as the plaintiff in a significant civil rights case seeking review from the U.S. Supreme Court, he may ultimately be better known for his legal activism.

Thanks to the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME, Reisman is no longer compelled to financially support the Associated Faculties of the University of Maine (AFUM), the labor union that represents him and his colleagues in employment matters with the university.

Despite having chosen not to join or pay dues to the union, state law allows the AFUM to function as the “exclusive” bargaining representative of all faculty, whether union members or not. This effectively means the AFUM gets to speak for Reisman in collective bargaining, lobbying and other matters without his approval, even over his objection.

Most state laws grant government unions the “unique status,” as courts have previously described it, of exclusive bargaining agent for the employees they represent. This means the employees can’t negotiate or deal directly with their employers over compensation and other workplace matters; that right is reserved to the union.

Reisman, however, argues such arrangements violate the First Amendment rights of employees, like himself, who disagree with the union’s speech on their behalf and who have no desire to associate with the government-recognized union.

Though lower federal courts have so far sided with the unions, Reisman, represented by attorneys at the Ohio-based Buckeye Institute, has asked the U.S. Supreme Court to take his case. This week, the Freedom Foundation filed an amicus brief with the U.S. Supreme Court supporting Reisman’s petition and urging the court to strike down state laws requiring public employees to accept unwanted union representation.

In ruling against Reisman, the federal district court and 8th Circuit Court of Appeals relied primarily on a previous U.S. Supreme Court decision, Minnesota State Board for Community Colleges v. Knight (1984).

In that case, the plaintiffs had sought a seat at the table alongside the union in a “meet-and-confer” process with the employer. However, the court held that the plaintiffs had no constitutional right to make the government listen to them and dismissed in a few sentences concerns about the possible infringement of employees’ First Amendment rights that might result from allowing a union to act as their exclusive voice.

But the justices never addressed head-on the freedom of speech and association concerns arising from unions’ status as exclusive bargaining representative.

More recently, in Janus, the court accurately described state laws authorizing a union to act as the “exclusive bargaining agent” of public employees as “a significant impingement on associational freedoms that would not be tolerated in other contexts,” though this observation was incidental to the main issue in that case.

The Reisman case provides the court with an opportunity to squarely address whether state laws granting unions’ the right to coopt the voices of nonconsenting public employees in bargaining and advocacy violate constitutional liberties.

In its exhaustively documented brief, the Freedom Foundation makes three arguments against exclusive representation:

“Exclusive representation enables unions to routinely claim in bargaining and advocacy to represent all employees in a bargaining unit, even if many or most are not union members or have previously taken affirmative steps to disassociate from the union. With no ability to categorically disassociate from an exclusive bargaining representative, employees must take even further affirmative action to attempt to distance themselves from positions taken by the union with which they disagree. Regardless of such affirmative acts, however, exclusive representation enables unions to claim they speak on behalf of even employees who have sought to disassociate from them.

Exclusive representation also gives unions access to employees’ personal information, thus violating employees’ privacy and permitting unions to barrage employees with unsolicited speech. A union’s status as exclusive representative also affords it access to the employer’s payroll system for dues collection purposes, thus enabling a variety of coercive practices. Additionally, many partial-public employees are subjected to coercive captive-audience meetings with union representatives because unions have secured access to employee orientations and training through collective bargaining.

Finally, employees subjected to these practices often have little practical choice in determining whether to surrender their rights to an exclusive representative. Unions are often certified as exclusive representatives of partial-public employee bargaining units with the support of only a small minority of employees, if an election occurs at all. Once certified, it is difficult, if not impossible, for employees to change or decertify an unwanted representative – cementing a ‘democratically-elected’ union’s power for generations.

Put simply, exclusive representation saddles employees who did not seek to associate with a union with the burden of attempting to disassociate while, at the same time, limiting their ability to do so. It is a situation the First Amendment cannot tolerate. Not only is exclusive representation a substantial infringement on employee rights, it is also an enabling vehicle for the abuse of employees at the hands of their State-mandated exclusive representatives… Individual public and partial-public employees should not be subject to the speech and associational burdens of exclusive representation by a union without their affirmative consent.”

Should the Supreme Court grant review of Reisman’s case in the coming months, it would mean union monopoly arrangements will finally get the legal scrutiny they deserve and potentially signal the court is ready to acknowledge what has always been true: There are no union or labor relations exceptions to First Amendment freedoms.