Supreme Court Won’t Hear Challenge to Union Exclusive Representation

By Mark Walsh — October 05, 2020 3 min read

The teachers’ unions are breathing a sigh of relief after the U.S. Supreme Court on Monday declined to take up a major challenge to exclusive-bargaining arrangements for public employee labor organizations.

Opening their new term, the justices declined review without comment in Reisman v. Associated Faculties of the University of Maine. Jonathan Reisman, a professor of economics and public policy at the University of Maine at Machias, does not belong to the faculty union and objects to it representing him as the exclusive-bargaining agent for all employees in the bargaining unit.

Under such arrangements, when employees in a bargaining unit vote to unionize, only one organization may represent the unit, and it must represent all employees, regardless of whether they join the union, in contract negotiations and grievance procedures.

Reisman, represented by the Buckeye Institute, a Columbus, Ohio-based free-market advocacy organization, and supported by numerous organizations that have been fighting to trim the power of public-employee unions, argued that the arrangement violates his First Amendment free speech and association rights. They point to the Supreme Court’s 2018 decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, which overruled a 41-year-old precedent that allowed the teachers’ unions and other public-employee unions to collect fees for collective bargaining from workers who decline to join the union.

In his opinion for the court in Janus, Justice Samuel A. Alito Jr. referred to exclusive representation as “itself a significant impingement on associational freedoms that would not be tolerated in other contexts.” But the issue in that case was agency fees, not exclusive representation.

Challenges After Janus

After their victory in Janus, union opponents have pursued challenges to exclusive representation. The Supreme Court in 2019 turned away a similar challenge brought by a Minnesota college professor.

In Reisman’s case, both a federal district court and the U.S. Court of Appeals for the 1st Circuit, in Boston, held that the professor’s challenge was foreclosed by a 1984 Supreme Court decision, Minnesota State Board for Community Colleges v. Knight. In Knight, the high court rejected a First Amendment challenge to a Minnesota law that provided for exclusive representation of community college faculty, for purposes of collective bargaining and “on matters related to employment that are outside the scope of mandatory negotiations.”

Reisman’s appeal of that decision was supported by the National Right to Work Legal Defense Foundation, the Liberty Justice Center, the Competititve Enterprise Institute, and other groups that were involved in Janus and similar cases.

The exclusive-representation issue is just as significant in K-12 education as in higher education. In August, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, upheld Ohio’s exclusive-representation law in a K-12 case. In Thompson v. Marietta Education Association, the 6th Circuit court said that exclusive representation arrangements were in “direct conflict with the principles enunciated in Janus.” But the court said it was bound by the high court’s Knight decision.

The state of Maine, the University of Maine System, and the Associated Faculties organization all filed separate briefs urging the court not to hear the case. The state faculty union is an affiliate of the Maine Education Association and the National Education Association, and their lawyers signed its brief.

“No principle is more central to the foundations of modern labor law than exclusive representation,” the unions said, arguing that Janus “in no way undermines Knight’s holding that exclusive representation is constitutional.”

The Supreme Court still has pending several appeals that seek to apply Janus retroactively to allow non-members to recover years of agency fee payments. Lower courts have rejected the legal theories of the union opponents. The high court has three related appeals on the agenda for its private conference on Oct. 9. They are Janus v. AFSCME , Mooney v. Illinois Education Association, and Danielson v. Inslee.

Photo: The U.S. Supreme Court is seen in Oct. 5, as the justices begin a new term. —AP Photo/J. Scott Applewhite)

A version of this news article first appeared in The School Law Blog.

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