Freedom Foundation

Hypocritical Union Free Speech Suit Tossed by Federal Court

The United States Court of Appeals for the 7th Circuit on March 8 dismissed a lawsuit brought by a public-sector union alleging its free speech rights were being violated.

While the court rejected Sweeny v. Raoul for technical reasons, the purported injury reported by the union is worth a laugh.

The U.S. Supreme Court in 2018 affirmed in Janus v. AFSCME that unions could no longer confiscate dues from non-members against their will to fund the political speech. Even so, the union must still comply with the terms of any collective bargaining agreement it negotiated with a specific agency — and most of these include language requiring the union to cover every worker in the bargaining unit. Even non-members.

According to the union attorneys in Sweeny, this arrangement is a burden that somehow entitles them to certain privileges — such as being able to charge non-members a so-called “agency fee” in lieu of dues.

Believe it or not, they made this argument with a straight face.

What the lawyers didn’t mention is that it’s the unions, not the non-nonmember workers, who demanded it be this way.

In fact, unions have spent decades arguing in favor of such “exclusive representation” clauses, precisely because these laws enable the unions, backed up and empowered by various state laws, to speak for the entirety of a given workforce even if a majority of its workers do not consent to the representation.

Once a certain threshold is met (usually 30 percent voting in support), the union simply purports to represent every employee in contract negotiations — including lobbying and even political speech on controversial issues.

But in Janus, the Supreme Court ruled that exclusive representation is not an exception to a worker’s First Amendment right not to fund speech he or she may find objectionable. And suddenly, at least one union is crying foul.

Interestingly, this is the exact same issue currently being considered in a petition to the Supreme Court in a case called Thompson v. Marietta Education Association, in which the Freedom Foundation also submitted a brief.

In it, we argued that California is a textbook example of exclusive representation gone wrong. On the very day Janus v. ASCFME was decided, state lawmakers there approved a bill designed to prevent workers from exercising their First Amendment rights.

The law, SB 866, erected several barriers between workers and their employers.

Under the measure:

  • public employers are prevented from directly confirming the waiver of their employees’ First Amendment rights;
  • unions are given a captive audience of new workers on whom it can exert pressure to join; and,
  • and employers are forced to divulge a whole host of each employee’s sensitive personal information to the unions to use in their pressure campaigns.

All these abuses are supposedly justified by exclusive representation.

Unions can’t have it both ways. They can’t simultaneously argue they have a statutory right to force workers into exclusive representation arrangements while also decrying their duty to fairly represent non-members.

This is rank hypocrisy even by union standards.

As noted in the Sweeney decision, the constitutionality of exclusive representation requirements remains unsettled. Until the issue is decided by the Supreme Court, the ambiguity — and alleged abuses — will continue.

The Thompson petition should be granted not only to end the abuse of public workers’ rights across the United States, but to free the poor, unfortunate unions from the burdens of exclusive representation without the means to steal workers’ lawfully earned wages.