Patience and persistence: A First Amendment odyssey

April 09, 2019 | By DEBORAH LA FETRA

Last summer, the Supreme Court decided Janus v. AFSCME, holding that public employees’ political autonomy is protected by the First Amendment and that states may not, therefore, allow unions to garnish workers’ wages for “dues” without the workers’ affirmative consent. States and public employee unions are slowly coming into line, and many non-union workers have successfully ousted the unions’ reach into their wallets. The unions don’t just take money, though.

Union-backed “exclusive representation” laws give union bosses – and only union bosses – the right to speak on behalf of all workers, whether they belong to the union or not. In Massachusetts, four educators employed by the University of Massachusetts challenged a state law that gives a union the sole power and authority to negotiate their employment. The educators aren’t members of the union, don’t want to be members of the union, and oppose union policies and priorities.

No matter, says the Massachusetts Supreme Judicial Court, in a decision issued today in Branch v. Commonwealth Employment Relations Board. The court rejected the educators’ First Amendment freedom of association claim because it viewed the union’s dominant, exclusive position as a feature, not a bug. After all, the court says, having the union speak for all workers bolsters its negotiating position and simplifies the bargaining process. The non-union workers were outvoted by their colleagues who wanted the union to speak for all of them and the court said, “majority rules.”

In so ruling, the court utterly ignores the anti-majoritarian nature of the Bill of Rights, including the freedoms of speech and association. These constitutional protections are most needed precisely when the majority would silence those who disagree. Because Janus did not directly address the impact of exclusive representation laws on First Amendment rights, lower courts uniformly rely on a case from the mid-1980s that has been construed to validate such laws. As PLF is arguing in multiple cases, it’s time to revisit that case, especially in light of the Supreme Court’s recent cases emphasizing much greater protection for speech and associational freedoms.

In the Branch case, PLF’s amicus brief focused on the injustice that results when people are forced to associate with groups when they do not share—and even expressly oppose—those groups’ objectives. Massachusetts public employee unions create the same conundrum, picking and choosing among competing interests of employees and silencing completely those who would be adversely affected. Making matters worse, unions have demonstrated that they are perfectly willing to engage in coercion and retaliation against employees—members and nonmembers—who do not take a unified stand with the union. Public employees, like all Americans, have a constitutional right to speak to their government, even—especially—when the government is their employer.