Will Supreme Court strike down union representation rule on free speech grounds? Here’s hoping

January 16, 2019 | By ERIN WILCOX
Speech Police, challenging freedom of expression.

“Exclusive representation” is the rule that gives unions a monopoly on talking to employers on behalf of all employees in a workplace. Yet, in the aftermath of a recent Supreme Court decision, this controversial rule’s time may be up. If so, that will be a big win for workers’ free speech rights.

This past summer, the Supreme Court held that workers who choose not to join a union can’t be forced to pay money to support that union. However, since the union is still the exclusive representative, non-members are forced to let the union speak for them in negotiations with their employer.

Want to talk about changing your uniform or work schedule? Too bad. Even if you’re not a union member, exclusive representation means you can’t talk directly to your boss about your concerns. Nor can your boss discuss these matters with you directly—because of exclusive representation, employers are forbidden from negotiating with anyone except the union.

In a friend of the court brief filed with the Supreme Court today, PLF argued that exclusive representation tramples on employees’ First Amendment rights of free speech and free association. The law has changed so completely in this area, we argue, that exclusive representation must go.

The underlying case, Bierman v. Dayton, involves a group of parents in Minnesota who work as home healthcare providers for their disabled children. The parents work as employees for the disabled individuals for whom they care for, and are paid through a Medicaid program that provides in-home care for people who would otherwise be institutionalized.

Even though they are private employees, Minnesota passed a law transforming them into public employees solely so that they can be represented by a public employee union. The Service Employees International Union (SEIU) quickly swooped in as the exclusive representative of all Minnesota home healthcare providers. Now even those who chose not to join the union are stuck with the SEIU speaking for them.

The First Amendment protects your right to speak and to associate—or not—with whomever you chose. When the government gives a union the right to speak for you, it tramples on your First Amendment rights and gives the union a much more powerful platform.

There’s no compelling reason to favor union speech above the speech of employees. It’s time for the Supreme Court to end this unconstitutional practice.