Stephen Delie, Mackinac Center for Public Policy
Workers deserve the right to choose who best represents them in the workplace. This Labor Day, public sector workers are on the verge of being able to make that choice for the first time in decades.
For years, unions have denied dissenting workers the right to completely dissociate from union representation. Workers who would prefer to have nothing to do with the union are still forced to accept the contract it negotiates with their employer. This problem results from a principle of labor law known as exclusive representation.
Under exclusive representation, unions are the only entity authorized to negotiate with an employer. Individual workers and managers cannot negotiate with one another, and any changes to a workplace must be negotiated only with the union. Worse still, before 2018, dissenting workers in states without right-to-work protections were forced to pay the union that was effectively silencing them. That changed when the Supreme Court decided Janus v. AFSCME, which expanded right-to-work protections to cover the entire country, though only for public sector workers.
But, as monumental as those protections are, public sector workers are still bound by exclusive representation and cannot speak on their own behalf. This violates their First Amendment rights, as the Mackinac Center argues in a brief it recently submitted to the Supreme Court in the case Goldstein et al. v. Professional Staff Congress/CUNY et al.
Goldstein involves a group of college professors, all but of one of whom are Jewish. They want to completely dissociate from their union, which they allege has engaged in anti-Semitic and anti-Israeli conduct and expression. The professors’ argument is simple: They should not be forced to accept representation from a group that is hostile to their core religious beliefs. First Amendment principles suggest that the Supreme Court should agree.
The First Amendment protects citizens’ right to either associate with or refuse to associate with particular persons or groups. Janus vindicated these rights by recognizing that forcing workers to pay public sector unions, which engage in inherently political activity, violates the First Amendment. Janus did not, however, address the flaws in the longstanding assumption that the law should permit unions to act as the exclusive representative for a group of workers. This assumption rests on a weak foundation, as a review of relevant case law shows.
Ordinarily, when a legislature passes a law, courts will defer to its policy choices. When a law does not affect constitutional rights, courts will evaluate any challenges to that law by using “rational basis” scrutiny, a highly deferential standard that will permit a law to survive so long as it has any conceivably permissible purpose. Laws that regulate fundamental rights, however, are reviewed under a heightened standard known as strict scrutiny. To survive strict scrutiny, government must provide a compelling governmental interest that outweighs the law’s impact on constitutional rights, and the option it chooses must be the least restrictive one.
The Supreme Court has not meaningfully examined whether the principle of exclusive representation for public sector unions can survive strict scrutiny. The last time it directly reviewed this question came in the 1977 case Abood v. Detroit Board of Education. But in Janus, the court overturned Abood, calling it “poorly reasoned.” In Abood, the court adopted the logic it had previously applied to private sector labor law. It simply assumed that the government’s interest in maintaining labor peace was sufficient to overcome any First Amendment challenges to exclusive representation.
That assumption was flawed. Current and historical evidence shows that labor peace does not require a union to have the authority to act as employees’ exclusive representative. If true, the constitutionality of exclusive representation becomes highly questionable.
Until 1959, no state granted public sector unions the ability to speak on behalf of all workers; unions only negotiated on behalf of their members. Despite this, unions were still able to effect changes in the workplace. Today, multiple states prohibit or severely limit collective bargaining by public sector employees. Even so, these states continue to provide government services to their citizens, which refutes the notion that states need to buy labor peace through exclusive representation.
When the Supreme Court first considered exclusive representation in the public sector, its primary concern was union-induced disruptions of public services. In Abood, the court worried that, without exclusive representation, states would be forced to negotiate with multiple unions, and unions would engage in inter-union rivalries that would disrupt government’s ability to function efficiently. Those concerns are unfounded.
The private sector provides a stark example. As of last year, only 6% of the private sector workforce was unionized. The other 94% of the U.S. economy manages to function without requiring employer-employee negotiations to go through only one representative. In these companies, each individual employee can negotiate directly with the employer to try to achieve the most favorable employment terms. Given that nearly all private employers are able to handle this arrangement with little difficulty, government can operate under the same arrangement.
An argument could be made that bargaining with a single representative is more efficient, at least from the government’s perspective. Reality, again, makes that assumption questionable. Private enterprises have a profit-motive, and therefore have a strong incentive to adopt the most efficient method of operation. But they have not encouraged or embraced unionism at scale, as a recent law review article by Alex McDonald of the Workplace Policy Institute notes:
[I]f exclusive bargaining promotes efficiency, we should see employers rushing to adopt it. Most employers are for-profit enterprises; they have to operate efficiently if they want to survive. So even if they do not like exclusivity, they should be forced to adopt it. If they don’t their competitors will, and they’ll be undercut by more efficient rivals. The iron law of the market will force their hands.
Thus, it’s questionable whether an efficiency argument has merit. But even if we were to assume that exclusive bargaining does lead to greater efficiency, that would not be enough to overcome employees’ First Amendment right to refuse to associate. Government efficiency alone is not sufficiently compelling to permit the infringement of fundamental constitutional rights; such a holding would permit the government to infringe on those rights in nearly every instance. Similarly, even if we assume that the state has a compelling interest in maintaining labor peace, past and current practice has shown that government can bargain with multiple representatives without risking significant labor strife.
Neither efficiency nor labor peace justify granting public sector unions the power to act as an exclusive representative. So it makes little sense for courts to continue to allow that arrangement to survive constitutional scrutiny. Instead, public sector bargaining should return to its traditional roots, with individual employees choosing whether they want a union to bargain on their behalf. This arrangement would vindicate the rights of those employees who view the union in their workplace as antithetical to their worldview, while also allowing employees who support that union’s speech to continue to do so freely.
The right to refuse to associate with those whom we disagree with is essential to free speech. Here’s hoping that the Supreme Court will once again recognize this important principle by holding that exclusive representation for public sector workers violates the First Amendment.
—————
Steve Delie is the director of labor policy at the Mackinac Center for Public Policy.
For years, unions have denied dissenting workers the right to completely dissociate from union representation. Workers who would prefer to have nothing to do with the union are still forced to accept the contract it negotiates with their employer. This problem results from a principle of labor law known as exclusive representation.
Under exclusive representation, unions are the only entity authorized to negotiate with an employer. Individual workers and managers cannot negotiate with one another, and any changes to a workplace must be negotiated only with the union. Worse still, before 2018, dissenting workers in states without right-to-work protections were forced to pay the union that was effectively silencing them. That changed when the Supreme Court decided Janus v. AFSCME, which expanded right-to-work protections to cover the entire country, though only for public sector workers.
But, as monumental as those protections are, public sector workers are still bound by exclusive representation and cannot speak on their own behalf. This violates their First Amendment rights, as the Mackinac Center argues in a brief it recently submitted to the Supreme Court in the case Goldstein et al. v. Professional Staff Congress/CUNY et al.
Goldstein involves a group of college professors, all but of one of whom are Jewish. They want to completely dissociate from their union, which they allege has engaged in anti-Semitic and anti-Israeli conduct and expression. The professors’ argument is simple: They should not be forced to accept representation from a group that is hostile to their core religious beliefs. First Amendment principles suggest that the Supreme Court should agree.
The First Amendment protects citizens’ right to either associate with or refuse to associate with particular persons or groups. Janus vindicated these rights by recognizing that forcing workers to pay public sector unions, which engage in inherently political activity, violates the First Amendment. Janus did not, however, address the flaws in the longstanding assumption that the law should permit unions to act as the exclusive representative for a group of workers. This assumption rests on a weak foundation, as a review of relevant case law shows.
Ordinarily, when a legislature passes a law, courts will defer to its policy choices. When a law does not affect constitutional rights, courts will evaluate any challenges to that law by using “rational basis” scrutiny, a highly deferential standard that will permit a law to survive so long as it has any conceivably permissible purpose. Laws that regulate fundamental rights, however, are reviewed under a heightened standard known as strict scrutiny. To survive strict scrutiny, government must provide a compelling governmental interest that outweighs the law’s impact on constitutional rights, and the option it chooses must be the least restrictive one.
The Supreme Court has not meaningfully examined whether the principle of exclusive representation for public sector unions can survive strict scrutiny. The last time it directly reviewed this question came in the 1977 case Abood v. Detroit Board of Education. But in Janus, the court overturned Abood, calling it “poorly reasoned.” In Abood, the court adopted the logic it had previously applied to private sector labor law. It simply assumed that the government’s interest in maintaining labor peace was sufficient to overcome any First Amendment challenges to exclusive representation.
That assumption was flawed. Current and historical evidence shows that labor peace does not require a union to have the authority to act as employees’ exclusive representative. If true, the constitutionality of exclusive representation becomes highly questionable.
Until 1959, no state granted public sector unions the ability to speak on behalf of all workers; unions only negotiated on behalf of their members. Despite this, unions were still able to effect changes in the workplace. Today, multiple states prohibit or severely limit collective bargaining by public sector employees. Even so, these states continue to provide government services to their citizens, which refutes the notion that states need to buy labor peace through exclusive representation.
When the Supreme Court first considered exclusive representation in the public sector, its primary concern was union-induced disruptions of public services. In Abood, the court worried that, without exclusive representation, states would be forced to negotiate with multiple unions, and unions would engage in inter-union rivalries that would disrupt government’s ability to function efficiently. Those concerns are unfounded.
The private sector provides a stark example. As of last year, only 6% of the private sector workforce was unionized. The other 94% of the U.S. economy manages to function without requiring employer-employee negotiations to go through only one representative. In these companies, each individual employee can negotiate directly with the employer to try to achieve the most favorable employment terms. Given that nearly all private employers are able to handle this arrangement with little difficulty, government can operate under the same arrangement.
An argument could be made that bargaining with a single representative is more efficient, at least from the government’s perspective. Reality, again, makes that assumption questionable. Private enterprises have a profit-motive, and therefore have a strong incentive to adopt the most efficient method of operation. But they have not encouraged or embraced unionism at scale, as a recent law review article by Alex McDonald of the Workplace Policy Institute notes:
[I]f exclusive bargaining promotes efficiency, we should see employers rushing to adopt it. Most employers are for-profit enterprises; they have to operate efficiently if they want to survive. So even if they do not like exclusivity, they should be forced to adopt it. If they don’t their competitors will, and they’ll be undercut by more efficient rivals. The iron law of the market will force their hands.
Thus, it’s questionable whether an efficiency argument has merit. But even if we were to assume that exclusive bargaining does lead to greater efficiency, that would not be enough to overcome employees’ First Amendment right to refuse to associate. Government efficiency alone is not sufficiently compelling to permit the infringement of fundamental constitutional rights; such a holding would permit the government to infringe on those rights in nearly every instance. Similarly, even if we assume that the state has a compelling interest in maintaining labor peace, past and current practice has shown that government can bargain with multiple representatives without risking significant labor strife.
Neither efficiency nor labor peace justify granting public sector unions the power to act as an exclusive representative. So it makes little sense for courts to continue to allow that arrangement to survive constitutional scrutiny. Instead, public sector bargaining should return to its traditional roots, with individual employees choosing whether they want a union to bargain on their behalf. This arrangement would vindicate the rights of those employees who view the union in their workplace as antithetical to their worldview, while also allowing employees who support that union’s speech to continue to do so freely.
The right to refuse to associate with those whom we disagree with is essential to free speech. Here’s hoping that the Supreme Court will once again recognize this important principle by holding that exclusive representation for public sector workers violates the First Amendment.
—————
Steve Delie is the director of labor policy at the Mackinac Center for Public Policy.
