The Speech and Association Rights of Employees: Implications of Knox v. SEIU, Local 1000 and Harris v. Quinn

Source: Catherine Fisk, Erwin Chemerinsky, University of California, Irvine School of Law, Research Paper No. 2014-13, February 12, 2014

From the abstract:
In 2012, the Supreme Court held in Knox v. SEIU, Local 1000 that a union representing government employees may assess money from the employees whom it represents to support political activity only if those employees first opt in to supporting political expenditures. In reaching this holding, the Court reasoned that public sector employees have a First Amendment right to refuse to contribute money to support the political speech of their union and that protection of that First Amendment right requires states to allow such assessments only if the employees first opt to make a financial contribution. Knox is the latest in a long series of Supreme Court cases delineating when a union selected as the exclusive bargaining representative by the majority of employees in a workplace violates the First Amendment rights of dissenting employees by acting on behalf of the majority. The Court’s next case in this line, Harris v. Quinn, which was argued in January and will be decided later this year, presents the question whether home care workers who are state employees have a First Amendment right to refuse to pay the union anything for the services the union is statutorily obligated to provide them. The petitioners in Harris invite the Court to overrule decades of precedent and hold that the First Amendment prohibits a union representing government employees from collecting dues or fees from dissenting employees. In colloquial terms, the petitioners in Harris seek to have the Supreme Court declare that, as a matter of the First Amendment, all government employment must be on a “right-to-work” basis. The petitioners in Harris argued that bargaining on behalf of employees is petitioning the government and “political in nature” even when it addresses wages, and it violates the First Amendment to require dissenting employees to support the union’s bargaining. As the Justices recognized at oral argument, the logical extension of the petitioners’ argument is that the First Amendment invalidates any statute allowing employees to bargain collectively on the basis of exclusive representation. While the petitioners noted that the Harris case itself did not require the Court to consider whether empowering a union to be the exclusive representative of employees for purposes of negotiating wages and working conditions necessarily involves compelled speech with respect to those employees who disagree with the majority representative’s positions, their brief invited the Court to find collective bargaining on the basis of exclusive representation to be unconstitutional. This article analyzes Harris, Knox, and other leading Court cases to assess union representation and the First Amendment, contradictions in applied standards of associational speech, and the future of public sector collective bargaining.