It's time to stop forcing workers to labor under exclusive representation

It's time to stop forcing workers to labor under exclusive representation
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Labor Day offers an appropriate annual reminder to consider the big issues and court cases on matters of freedom affecting workers.

Janus v. AFSCME was a major victory for the First Amendment rights of public workers, who can no longer be forced to subsidize the speech of labor unions. Janus recognized that practically everything a public-sector union does is speech on matters of public concern. When a union participates in collective bargaining with a government agency over wages and benefits, it is lobbying for policies that affect public finances and services.

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It follows that, as Janus concluded, the government cannot force its workers to pay for union lobbying any more than it could require seniors to support the AARP. Union fees therefore cannot be deducted from public workers’ paychecks unless they “clearly and affirmatively consent” to funding the union.

Of course, the devil is in the details and unions have relied upon their employees’ pre-Janus union membership status as justification to keep extracting dues. But, for many workers, membership was automatic, with their consent presumed. Continuing to charge them dues, without obtaining their affirmative consent, violates Janus on its face.

In other cases, unions pressed members to sign years-long dues authorizations in the run-up to Janus. And even when union members are not locked in, many unions are relying upon limitations they snuck into collective bargaining agreements that limit designated opt-out periods to brief windows of time and that impose convoluted procedures to escape union membership.

These unions have essentially adopted the “roach motel” approach to membership: once you join the union, you can never leave—unlike with every other voluntary association in America.

But some unions have recognized, correctly, that taking a tough line on these issues is legally untenable. The Buckeye Institute has already notched several wins for public workers in Minnesota, Ohio and Maine who wanted to resign their union memberships immediately, without any hassle and without paying another dime in support of speech with which they disagree.

When pushed directly by demands from members who were represented by The Buckeye Institute’s attorneys, those unions acknowledged that they lacked a legal leg to stand on and accordingly complied with their members demands to release them.

Then there is the issue of unwanted representation. If it violates the First Amendment to compel financial support for union advocacy, how on earth can unions assert that they have the right to represent and speak for the unwilling?

Yet nearly every state still permits public-sector unions to serve as the “exclusive representative” of workers in a bargaining unit, including for those who have refused to join the union and oppose its views.

For a union, recognition as all workers’ exclusive representative brings power and leverage. But for workers who have not voluntarily joined a union, the government is literally appointing someone to speak for them, in their name and on their behalf.

In what might be the understatement of the year, Janus observed that such arrangements are “a significant impingement on associational freedoms that would not be tolerated in other contexts.”

Yes, in other contexts, the government cannot put words in the mouth of members of the public by appointing someone to speak for them. And it cannot force people into expressive associations like private clubs, advocacy groups, or churches.

Somehow, however, unions have been treated differently to date, but do not expect that exceptionalism to last much longer. Compelled speech is subject to even stricter constitutional scrutiny than the fee-mandate that was struck down in Janus, because the injury is more severe.

As the court explained, “no one…would seriously argue that the First Amendment permits” a state to require its residents to express “support for a particular set of positions on controversial public issues.”

Yet that is exactly what forced representation entails — workers are forced to advocate for the union platform whether they like it or not. For that reason, The Buckeye Institute has launched a series of lawsuits in federal court to challenge the practice, the first of which was filed mere hours after the Janus decision was issued on June 27.

The only arguments on the other side concern the government’s convenience. It is easier and less disruptive, they say, to work with a single union and a union can provide valuable and streamlined feedback to a government employer. But nothing requires an agency to recognize or bargain with more than one union and obtaining feedback does not usually require forcing an unwanted representative on anyone.

Anyway, since when is the convenience of government officials any justification at all for intruding on speech rights? The whole point of the First Amendment is that it does not matter whether the government views certain speech (or silence, for that matter) as inconvenient.

At base, Janus stands for the proposition that the First Amendment’s protections apply equally where labor unions are concerned. Until the unions accept that they cannot take employee support for granted, they will neither move on to considering how they can best attract and serve members nor honor their workers’ constitutional rights.

Robert Alt is president and CEO of The Buckeye Institute. Andrew Grossman practices law in Washington, D.C. and is a visiting legal fellow at The Buckeye Institute. Together, the authors are representing workers challenging exclusive representation requirements in Maine, Minnesota and Ohio.