In a landmark 2018 case, the Supreme Court gave state government workers the freedom to choose whether they would like to join and support a union. This year, government workers in two new cases are asking the Supreme Court whether they should be forced to accept an employment contract negotiated by unions that they aren’t members of. These workers want the freedom to negotiate their own contracts.   

The plaintiffs in Uradnik v. Inter Faculty Organization and Bierman v. Dayton argue that exclusive representation violates their First Amendment rights. Exclusive representation is an optional benefit under most state laws for unions. This benefit allows unions to forbid individual employees from negotiating with their employer on their employment contracts. Exclusive representation also forces workers to accept whatever the union has negotiated. Unions request this option because it allows them to represent members and nonmembers of their union. The unions then determine what benefits an employer provides. 

While unions are required to represent both nonmembers and members alike, the reality is that nonmembers might be worse off than members. For example, in the Uradnik case, Dr. Kathleen Uradnik, a St. Cloud State University professor, is not allowed to serve on any faculty search, service, or governance committee, as well as the Faculty Senate, because she is not a member of the union. Serving on these committees is important to obtaining tenure and participating in the academic life.   

However, on December 4, 2018, Dr. Uradnik decided to fight this injustice, with the help of the Buckeye Institute, by filing a petition for a writ of certiorari in the U.S. Supreme Court. She is asking the Supreme Court to hear her case and decide whether exclusive representation violates her First Amendment rights.  

This case stems from the Janus case that the Supreme Court decided on June 27, 2018. That decision ruled that forcing nonunion members to support a union in fees is a violation of the First Amendment rights of these workers. The decision further pointed out how harmful exclusive representation is:

Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer.

Amicus briefs have been filed in support of Dr. Uradnik. For example, on January 3, 2019, Americans for Tax Reform and the Center for Worker Freedom joined the Center of the American Experiment’s brief with 15 other groups. The brief pointed out how exclusive representation infringes on the First Amendment freedoms of speech and association of Dr. Uradnik. It also mentioned how the Supreme Court in Janus had already ruled that labor peace and preventing free riding were not strong arguments against First Amendment violations. The Competitive Enterprise Institute, the National Right to Work Legal Defense Foundation, and the National Association of Scholars also submitted amicus briefs in support of Dr. Uradnik. 

Similarly, on December 13, 2018, Teri Bierman and seven other Minnesota homecare providers, with the help of the National Right to Work Foundation, asked the Supreme Court to hear their case, Bierman v. Dayton. The plaintiffs are part of a state-run Medicaid program that allows them to take care of their disabled family members at home. They do not want to be represented by the union.

In the Bierman case, a number of amicus briefs were also filed by the Buckeye Institute, the Cato Institute, the Fairness Center, the Pacific Legal Foundation, NFIB Small Business Legal Center, Freedom Foundation, the Goldwater Institute, and the Center of the American Experiment.

Contrary to doomsday statements by the unions, if these cases are decided for the plaintiffs, workers would simply have the freedom to decide whether or a not a union can represent them.

Olivia Grady is senior fellow at the Center for Worker Freedom, a project of the nonprofit Americans for Tax Reform.