In Janus v. AFSCME, this Court recognized the importance of this issue in its holding that the certification of an exclusive representative to speak for public employees “substantially restricts the [First Amendment] rights of individual employees.” 138 S. Ct. 2448, 2460 (2018). Currently, 6.8 million state and local public employees are covered by union contracts. Julia Wolfe and John Schmitt, A profile of union workers in state and local government, Economic Policy Institute (June 7, 2018), https://goo.gl/RQz1qD/. Of those about 600,000 are non-members. Their First Amendment rights are trampled by state laws that provide for exclusive representation. As it stands, public employees are now free from subsidizing the speech of an exclusive representative, but are forced to associate with unions and let those unions speak for them, no matter how strongly employees disagree with that speech.
An exclusive representative, under Minnesota law, speaks “on behalf of all employees,” including non- members who have refused to join the union. Minn. Stat. § 179A.03 subd. 8. As the Minnesota statute indicates, the union’s speech is considered the speech of the employees it represents: “Public employees, through their certified exclusive representative, have the right and obligation to meet and negotiate in good faith with their employer.” Minn. Stat. § 179A.06 subd. 5 (emphasis added). Minnesota law is clear—when the union is speaking during collective bargaining, it is on the behalf of the Petitioner and other non-members.
The issues on which the union’s speech is treated as the Petitioner’s, against her will, are issues that Janus recognized as “matters of substantial public concern.” 138 S. Ct. at 2460. As this Court has decided repeatedly, freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U. S. 705, 714 (1977). In Janus the court stated, “Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.” 138 S. Ct. at 2463. The state law compelling the Petitioner to accept the union’s speech as her own on issues of substantial public concern infringes on her First Amendment rights.
Equally troublesome, the state compels the Petitioner to accept the advocacy of an exclusive representative that she never had a chance to vote on. For the most part, public employees simply inherit union representation that was voted on by past workers, and are forced to accept it without any choice in the matter.
For these reasons, the Minnesota statute that establishes exclusive representation is in conflict with First Amendment jurisprudence and warrants review by the Court.
1 Pursuant to Rule 37.6, amicus affirm that no counsel for a party authored this brief in whole or in part, that no such counsel or party made a monetary contribution intended to fund the preparation or submission of the brief, and that no person other than amicus, their members, or their counsel made such a monetary contribution. All parties recieved notice at least 10 days prior to the due date of the amicus curiae’s intention to file and consented to the filing of this brief.