December 12, 2018

The constitutional right to speak for yourself

By Deborah J. La Fetra Senior Attorney

Public employees are a diverse group. Just as they don’t all look alike, neither do they think alike. Under union-backed “exclusive representation” laws, however, they must speak with a single voice: the union’s voice. In Massachusetts, four educators employed by the University of Massachusetts are challenging the state law that gives a union the sole power and authority to negotiate their employment. They are particularly upset because they aren’t members of the union, don’t want to be members of the union, and oppose union policies and priorities. Deprived of any voice or vote in the terms and conditions of their own jobs, they filed an unfair practices claim with the Commonwealth Employment Relations Board, which gave them no relief.

Then 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 union to garnish workers’ wages for “dues” without the workers’ affirmative consent. Now the Massachusetts Supreme Judicial Court will decide in Branch v. Commonwealth Employment Relations Board how to apply the principles announced in Janus to the educators’ challenge to exclusive representation.

PLF filed an amicus brief focusing on the need for courts to rigorously scrutinize  infringements on the right of free association (and its corollary, the right not to associate), and the injustice that results when people are forced to associate with groups when they do not share—and even expressly oppose—those groups’ objectives. Exclusive representation has a history of undesirable consequences. For example, labor unions have relied on their power to exclusively represent all employees as a means to discriminate against African-Americans. In a 1975 case, African-American employees sought to negotiate directly with their employer (a private company regulated by the National Labor Relations Act). The Supreme Court forbade them from doing so under the federal law that required exclusive representation because Congress had “full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority.” Justice Douglas dissented, writing that the Court’s opinions rendered the employees “prisoners of the Union,” a “tragic consequence.”

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 in their own voice, even—especially—when the government is their employer.

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