Conservative nonprofits are aiming for a Supreme Court ruling to curb public-sector unions’ power by allowing them to limit the benefits they provide to workers who are card-carrying, dues-paying members, freezing out nonmembers.
Unions often call those nonmembers “freeloaders,” but that doesn’t mean they want to give up the right to represent them. “Exclusive representation” — a union‘s status as the only entity that can deal with management on behalf of workers — is a key tool of unions for getting and retaining members.
Exclusive representation exists, in part, to prevent confusion over who represents the employees, allowing management to negotiate with one entity instead of several smaller ones. Workers have no recourse but to deal with the union to get better wages or fix certain workplace problems. Only members have any say in the union’s agenda and bargaining goals, giving them an incentive to join.
Conservative critics of the arrangement are hopeful that another court-delivered victory will follow last year’s blockbuster Janus v. AFSCME, in which the court ruled that public sector unions cannot compel dues from workers who refuse to join the union. Exclusive representation became even more important after Janus, which has resulted in public sector unions scrambling to retain members who can now burn their union cards.
The Columbus, Ohio, nonprofit organizations Buckeye Institute is representing educators in three cases challenging their faculty unions’ “exclusive representative” status: Kathy Uradnik, a nonunion professor at St. Cloud State University in Minnesota, who is prevented from serving on any faculty committees by union contract; Jonathan Reisman, an associate professor of economics at the University of Maine at Machias who objects to his union’s political agenda; and Jade Thompson, a Marietta, Ohio, high school teacher who objects to her union’s collective bargaining agenda.
The Freedom Foundation, a nonprofit organization based in Washington state, is representing four home caregivers in the case Mentele v. Inslee. The state-subsidized caregivers are challenging Washington’s decision to grant exclusive representation over them to the Service Employees International Union on the grounds that it violates their First Amendment right of association. The case is currently in the 9th Circuit Court.
The National Right to Work Legal Defense Foundation is representing a similar case, Bierman v. Dayton, in which Minnesota granted SEIU exclusive representation of state-subsidized homecare providers. The caregivers are petitioning the Supreme Court to take their appeal of an 8th Circuit Court decision denying a lower court appeal.
The Supreme Court, which now includes President Trump’s appointees, Neil Gorsuch and Brett Kavanaugh, has shown a serious interest in rethinking long-established rules regarding unions. It is possible one or more of the exclusive bargaining challenges could be taken up in its next term.
Last year’s Janus ruling effectively established nationwide the same principle as a state right-to-work law. Unions are much weaker in right-to-work states, struggling to retain their members and keep treasuries filled. The court had previously deadlocked 4-4 following Justice Antonin Scalia’s death in a case nearly identical to Janus, Friedrichs v. California Teachers Association. In 2014’s Harris v. Quinn, the court struck down an Illinois attempt to force homecare providers into a public sector union. National Right to Work argued both the Janus and Harris cases.
[Related: Union effort well underway to undermine Supreme Court’s ruling on fees for public-sector unions]
NRTW vice president Pat Semmens says that the court’s logic in Janus suggests that it is rethinking exclusive representation. “Our first paragraph in the cert petition to the Supreme Court takes a quote from the Janus majority ruling calling exclusive representation a ‘significant impingement on associational freedoms that would not be tolerated in any other context.’”
Ironically, unions have in the past cited exclusive representation as a burden on them, particularly when they are fighting right-to-work laws. Labor leaders argue that those laws are unfair because exclusive representation means unions legally have to represent nonmembers too, who then get the benefits of collective bargaining, such as higher wages, without having to pay union dues.
“When did we become a nation of freeloaders?” Donald “D.” Taylor, president of the hospitality workers union Unite Here, told the Washington Examiner earlier this year when asked about right to work. “I think of them as what the GOP used to call welfare recipients: welfare queens.”
Joshua Parkhurst, a New York-based labor rights lawyer, says unions need exclusive representation in order to get employers to negotiate at all. Without it, managers have no reason, legally or practically, to give them the time of day.
Ending exclusive representation would allow the unions to restrict the benefits of collective bargaining to their members and tell the freeloaders and “welfare queens” to take a hike. But no union has ever pushed for that. They have always argued for having exclusive representation and mandatory dues instead.
“It is hard to come up with an arrangement that is more beneficial to their interests than being the sole provider of a service and also being able to force people to pay for that service whether they like it or not,” said Maxford Nelson, the Freedom Foundation’s director of labor policy.
Janus changed half of that equation, the ability to force people to pay. Unions don’t want to lose the other half. “Now that they have lost in the public sector the ability to compel payment, they have become ‘merely’ monopolies like any other: the only provider in town,” Nelson said.
