Supreme Court Allows Exclusive Representation in the Public Sector to Stand, for Now

In early June 2021, the U.S. Supreme Court denied review in Thompson v. Marietta Education Association, 972 F.3d 809 (6th Cir. 2020). The case had the potential to further restrict what is known as exclusive bargaining representation.  Under current law, a union may become the “exclusive bargaining representative” for all employees in a bargaining unit when it submits proof that a majority of the employees in the bargaining unit wish to be represented by the union.

Once that proof is established, the employer is required to collectively bargain over the conditions of employment of the bargaining unit employees with the union exclusively, i.e. the employer is prohibited from bargaining with anyone else.

The plaintiff in Thompson argued that allowing a union to be an exclusive bargaining representative violates the First Amendment rights of non-union members in the unit.

The case challenged the constitutionality of an Ohio law that allows public school teachers to democratically elect a union to act as their exclusive bargaining representative.  The plaintiff argued that these collective bargaining systems violate the First Amendment under Janus v. AFSCME, 585 U.S. ___, 138 S. Ct. 2448 (2018), which ruled that majority-chosen public sector unions cannot force nonmembers to pay fees.

The Sixth Circuit begrudgingly upheld the law, stating that the system “is in direct conflict with the principles” in Janus, but that other precedent, Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), controlled.  In Knight, the Supreme Court explained that exclusive representation does not infringe upon speech and associational rights because the state does not prevent dissenters’ freedom to speak on education-related issues or their freedom to associate (or not to associate) with an exclusive representative.  All other Circuits to address the issue have also found that Knight determined that exclusive representation does not violate the First Amendment rights of non-union members.

The case presented the Supreme Court another chance to narrow bargaining power through the First Amendment, and it is good news the Court did not take it up.  Exclusive representation in the public sector as we know it continues to be applicable law.

By Kara Gordon and Jerry Chang | August 25, 2021

Legal Developments