Freedom Foundation

Freedom Foundation files brief in SCOTUS case seeking to end exclusive representation

The U.S. Supreme Court’s decision last year in Janus v. AFSCME, which struck down state laws forcing public employees to pay union dues/fees, was a vindication of public employees’ free speech rights. But it didn’t end all the ways public employees’ constitutional rights are violated by the current system of union representation.

This month the Freedom Foundation filed an amicus curiae brief asking the U.S. Supreme Court to hear Bierman v. Dayton, a case brought by publicly paid Minnesota home caregivers who believe being forced to accept union representation violates their First Amendment right to free association.

Historically, government unions have primarily derived their power and influence from two significant privileges granted to them in state law: “exclusive representation” and “union security,” or “agency fees.”

Once a union is certified to represent a group of employees in a government workplace, the union becomes the “exclusive bargaining representative” of all employees in the designated “bargaining unit,” whether comprised of teachers in a particular school district, employees of a state agency, city police officers, etc.

In essence, an exclusive bargaining representative has a monopoly on providing workplace representation services to the employees it represents. Represented employees cannot choose to forgo union representation, cannot negotiate their own wages or benefits directly with their employer and cannot choose to be represented by an attorney or alternate union.

In addition, until Janus, unions were permitted to require public employees, through union security provisions in the collective bargaining agreements negotiated with government employers, to pay union dues or fees as a condition of employment as compensation for the union’s representation, whether desired or not.

The loss of mandatory agency fees after Janus renders government unions merely monopolies like any other, as the sole providers of workplace representation to represented employees.

But, as the Freedom Foundation explained in its brief, this forced representation still harms employees’ constitutionally protected rights of free association.

The U.S. Supreme Court previously examined the constitutionality of exclusive representation in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), but addressed primarily the effect of exclusive representation on employees’ free speech rights. Only a few sentences addressed how exclusive representation burdens employees’ right to freely associate or, in this case, not associate.

The Freedom Foundation’s brief explains in detail the ways in which exclusive representation has harmed the associational rights of Washington’s home caregivers and family child care providers, who are similarly situated to the Minnesota caregivers in Bierman.

First, exclusive representation harms employees’ privacy by granting unions access to sensitive information about the employees, including their Social Security numbers.

Secondly, this information is used to subject employees to an unwanted barrage of union membership solicitations and coercive tactics designed to seize union dues from employees’ wages. One of the most egregious examples is the captive-audience meetings with union organizers caregivers must participate in as part of their hiring and training process which public records reveal to be highly coercive.

Third, most employees unionized under state labor laws have had little or no say in choosing the exclusive bargaining representative. In some cases, a vote was held years or decades past in which a relatively small percentage of the bargaining unit voted for representation. Many of these were plagued with irregularities. In other cases, employees were never permitted the ability to vote on union representation in a secret ballot election. And under current state law in Washington, it is logistically impossible for union-represented home and family child care providers to initiate a vote to change unions or decertify the incumbent union. A union retains is status as exclusive bargaining representative even if fewer than half of the employees it represents choose to join as members.

Lastly, exclusive representation allows a union to claim the support of all represented employees in its political speech and advocacy, placing the burden on employees who disagree with the union to affirmatively express their disagreement.

A striking example occurred in 2018, when SEIU 775 backed legislation to force home caregivers to pay union dues as a condition of employment. In their legislative testimony, union lobbyists claimed to speak on behalf of all caregivers in the state, without acknowledging that thousands of caregivers had chosen not to join the union as members. These caregivers were forced to mount a difficult campaign to express to the Legislature and the public their opposition to the legislation and SEIU 775.

Hopefully the Supreme Court recognizes the seriousness of the issue, grants the Minnesota caregivers’ request to have their case heard and strikes down exclusive representation as unconstitutional. Such an outcome would not end unions, but would introduce a little healthy competition to the workplace representation industry, free public employees from having to associate with labor unions against their will and allow employees to choose for themselves how to handle their workplace representation needs.