A case challenging a Maine law that forces union representation on individual faculty members in contract negotiations with their government employer could lead to an expansion of workers’ rights recognized by the U.S. Supreme Court’s landmark Janus v. American Federation of State, County, and Municipal Employees (Janus v. AFSCME) decision.
Jonathan Reisman, an associate professor of economics and public policy at the University of Maine, filed a petition on January 2 asking the U.S. Supreme Court to review a decision by the U.S. First Circuit Court of Appeals upholding the state law.
Reisman is contesting representation by the Associated Faculties of the University of Maine (AFUM). Reisman had resigned his union membership and was not required to pay fees to the union for representing him. However, the union is the exclusive representative of the faculty, and individual faculty members are not allowed to represent themselves. Reisman argues mandatory union representation violates his First Amendment rights of free speech and free association.
The U.S. Supreme Court ruled mandatory union dues violate government employees’ free speech rights, in its 2018 Janus decision, but it did not rule on the question of mandatory representation in collective bargaining by public employee unions, says Robert Alt, a lead attorney in the case and president and chief executive officer of The Buckeye Institute, which is representing Reisman.
“In what could be another landmark case in labor law, Reisman would recognize the First Amendment right of free association for millions of public employees across the country,” Alt said.
Janus ‘Landmark Case’
The Reisman case builds on a Supreme Court win for opponents of forced union representation by public sector unions, Alt says.
“Janus was a landmark case which correctly recognized that collective bargaining with the government is inherently political speech, and compelling public employees to pay for that speech was a clear violation of the First Amendment,” Alt said. “With the Janus decision, the rights of millions of Americans have been restored, and public employees can no longer be forced to turn over part of their paycheck to a union as a condition of employment.”
A public employee, Mark Janus brought the lawsuit against Illinois and the local AFSCME chapter to argue mandatory union fees violated his First Amendment rights.
Maine state law authorizes collective bargaining rights and representation of workers by a union chosen by a majority of the faculty. AFUM, Reisman’s union, is a collective bargaining unit of broader labor organizations, Alt says.
“We became aware that although Professor Reisman would have liked to remain a member of his local union, he did not want to be forced to also support the respective state and national unions with which AFUM affiliates: the Maine Education Association and the National Education Association,” Alt said.
“These unions oppose his views on a wide range of political and public policy issues,” Alt said. “In talking with him over the course of some weeks, we recognized that he had a compelling case.”
Other Cases Filed
Buckeye is contesting forced union representation in two other cases in federal court: Kathy Uradnik of St. Cloud State University in Minnesota and Jade Thompson, a high school Spanish teacher employed by the Marietta City Schools in Ohio, Alt says.
“In its cases Reisman v. AFUM, Uradnik v. IFO, and Thompson v. MEA, The Buckeye Institute is extending the opportunity for the Supreme Court to answer the question: If it violates the First Amendment to compel financial support for union advocacy, how on Earth can states require these same public employees to speak through unions that many of them choose not to join?” Alt said.
The Supreme Court has declined to hear appeals on motions to enjoin the defendants in those cases, which are pending in federal district courts.
Concern for Rights
The Supreme Court’s Janus ruling prohibits public employee unions from using nonmembers’ fees to support political activities, but Janus and his legal team argued government negotiations on wages and contracts likewise fall within the sphere of politics and policy, Alt says.
“In the Janus decision, Justice Alito raised serious questions about exclusive representation that many—including The Buckeye Institute—had been asking,” Alt said.
“Justice Alito, writing for the Court’s majority, said, ‘Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees,'” Alt said. “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.'”
The Reisman case could affect public employees nationwide, says Larry Sand, president of the California Teachers Empowerment Network.
“The Janus decision, freeing public employees from mandatory dues payments to a union, was an excellent first step, but more needs to be done,” Sand said.
“Next, we need to get rid of forced representation,” Sand said. “In a ‘members-only union’ scenario, only workers who want to participate in collective bargaining would be represented. If you choose to be a free agent, you negotiate for yourself and cede any union-related perks.”
The high court had not decided whether to hear the Reisman case as of press time.
Ashley Bateman ([email protected]) writes from Alexandria, Virginia.
Petition for Writ of Certiorari, Jonathan Reisman v. Associated Faculties of the University of Maine, et al., U.S. Supreme Court, January 2, 2020: https://heartland.org/publications-resources/publications/petition-for-writ-of-certiorari–jonathan-reisman-v-associated-faculties-of-the-university-of-maine
Larry Sand, “The Janus Decision and Teacher Freedom: One Year Later,” The Heartland Institute, July 2, 2019: https://heartland.org/news-opinion/news/the-janus-decision-and-teacher-freedom-one-year-later