The Supreme Court’s Janus decision four months ago, which overturned the authority of public-sector unions to force nonmember employees under contract to pay dues or risk losing their jobs, has taken some unexpected turns. Indeed, barely after the ruling, a Columbus, Ohio-based nonprofit group, the Buckeye Institute, filed separate suits on behalf of a high school teacher in Ohio and a college professor in Minnesota challenging the authority of their respective unions to bargain exclusively. In effect, the plaintiffs seek to be freed from representation they never requested in the first place. “These capable public servants have the right to speak for themselves and should be released from forced association with unions and advocacy with which they disagree,” said Institute President Robert Alt. The unions have a different view.
Janus v. AFSCME Council 31 was the most important U.S. Supreme Court decision on public-sector unionism in more than 40 years. On June 27, the Court ruled 5 to 4 that a labor council affiliated with the American Federation of State, County and Municipal Employees lacked the authority to deduct partial dues (also known as “agency” or “fair share” fees) from a nonmember’s paycheck without the worker’s affirmative consent. Nor did a state government agency have the authority to collect dues on behalf of his union. The plaintiff, Mark Janus, an employee with the State of Illinois, had argued, and with substantial public support (see photo), that forcing workers to pay dues is a violation of their First Amendment rights. The Supreme Court a couple years earlier had considered a similar case, an appeal filed by a California public school teacher, Rebecca Friedrichs, against the state affiliate of the National Education Association, but was deadlocked at 4-4 in the wake of the death of Justice Antonin Scalia.
Buoyed by Janus, certain members of the teaching profession are going one step beyond in challenging government employee union monopoly power. On grounds of freedom of speech and association, these employees, in separate federal lawsuits in Ohio and Minnesota, are challenging a union’s authority to impose exclusive representation on all employees in a bargaining unit. In other words, in addition to wanting to opt out of paying agency fees, the dissenting workers are seeking to exit from union coverage outright. “The Janus decision was an important victory for hard-working public servants across the country, but many of these same employees are still forced to accept their union’s representation that they didn’t ask for and do not want,” said the Buckeye Institute’s Alt.
The Buckeye Institute filed suits, respectively, on June 27, only hours after Janus was handed down, in U.S. District Court for the Southern District of Ohio and on July 6 in U.S. District Court for the District of Minnesota. In each case, the institute filed a request for a preliminary injunction about a month later.
The plaintiff in the Ohio case is Jade Thompson, a high school Spanish teacher in Marietta, located in the southeast part of the state. Her 20-page complaint explains in detail her objections to being forcibly represented by the Marietta Education Association (MEA), an affiliate of the National Education Association. She accuses the union, and an allegedly complicit local board of education, of the following: advocating budget cuts in selected academic programs as an alternative to benefit reductions; negotiating the exclusion of nonmember teachers from key school committees; and requiring seniority to be the sole consideration in layoffs. The latter focus, she said, has led to a bizarre situation in which a decision to lay off two or more employees with equal seniority is decided by a coin toss rather than by an evaluation of merit.
Thompson made a compelling case for herself in a guest opinion piece in the August 20 online edition of the Columbus Dispatch. She wrote:
As a public-school teacher who has been teaching Spanish to high school students in Marietta for 15 years now, I cannot imagine a more rewarding job.
However, in order to practice my beloved profession, I was forced to pay approximately $14,000 to the union over the course of my career. The exact amount is as indecipherable as Cretan hieroglyphics and just as shrouded in mystery. These fees were extracted from me even though I profoundly disagreed with how those funds were spent and with the “representation” my union purportedly conducted on my behalf.
That money was used on a political agenda, which even included – as I discovered in 2010 – a political campaign waged against my own husband who was then running for office. Imagine my dismay when I received political propaganda against my husband’s candidacy that was paid for and mailed by an organization related to my own union.
I have since resigned my union membership and, with it, my voting rights. As a result, I have been subjected to bullying and ridicule from my colleagues and administration. Shortly after I became a fee-payer, my car was vandalized several times in the faculty parking lot where it endured multiple punctured tires. Was it an unfortunate coincidence, or was it more likely punishment for the objections I had raised? And what about our former school superintendent who (during his opening-day speech) publicly shamed any teacher who disavowed the union as a “right-wing extremist threat to public education?”
Later in her article, Thompson summed up the Right to Work principle at stake:
Here I am, even after the Janus decision, still forced to accept the MEA as my “exclusive representative” even though I am no longer a member and despite its controversial partisan agenda, continued political attacks on my husband, retaliatory tactics designed to intimidate me into silence and woefully dismal negotiating positions.
I am not opposed to collective bargaining. But everyone should have the freedom to decide whether to join a union or be represented by it, particularly if that union does not, cannot, or will not represent that person’s values. The MEA does not seek and never has sought my voice, and isn’t that the very essence of “representation?”
J.D. Benson, president of the Marietta Education Association, did not elaborate on the lawsuit, but did emphasize that the public needs to focus on the positive aspects of union representation. “I think that we will need to work with our officers to step up the game to show the benefits,” he said. “A lot of the teachers know what we have done to work for them, what they have because of what we have done.”
The plaintiff in the Minnesota case is a professor of political science at St. Cloud State University, Kathleen Uradnik. Her suit, filed in St. Paul federal court against the Inter Faculty Organization (IFO), St. Cloud State University and the trustees of the Minnesota State Colleges and Universities, argues that despite her non-membership, she must pay dues to the IFO and submit to its exclusive representation. She is seeking a judgment barring discrimination against nonunion faculty, plus attorneys’ fees and costs.
Ms. Uradnik’s lawsuit argues that forcing public employees to pay agency fees runs contrary to the First Amendment, noting that the defendants have negotiated special preferences for union members on issues related to tenure and promotions. “The union generally excludes non-Union members from membership on those (tenure and promotion) committees and leaves committee seats vacant when there are not enough Union faculty members willing to serve,” reads the suit. “Exclusion from committee service also denies nonunion faculty members the ability to associate and serve with their administrators.” Inter Faculty Organization President Brent Jeffers offered a pungent response to Uradnik’s complaint. “This lawsuit is part of a nationally coordinated strategy by powerful forces aiming to destroy collective bargaining,” remarked Jeffers. “It is a direct attack on our shared values and collective voice. United, we are powerful advocates – and our solidarity threatens the national anti-labor organizations behind these attacks.”
We may see more such legal actions in the near future. There are many public employees across the nation, especially in non-Right to Work states, who do not wish to be represented by a particular union, if any union. The Supreme Court’s Janus ruling in June expanded the basis for such persons to express such objections. Exclusive representation, a principle established under the National Labor Relations Act of 1935, effectively grants unions a license to coerce reluctant workers into furnishing financial support. Unions understandably are pulling out the stops to protect that license. The lawsuits in Ohio and Minnesota stand as declarations that this principle, never on sound constitutional ground in the first place, appears well past its sell date.