U.S. Supreme Court Rejects Two Attacks on Public Sector Union Representation

July 6, 2021 by Dale Brodsky and Andrew Baker

At least for the time being, public sector unions can breathe a sigh of relief that they may continue to serve as the exclusive bargaining representative for all of the public employees in a bargaining unit, and may continue to enforce dues authorizations signed by public employees prior to their resignation from union membership. That is because the U.S. Supreme Court recently denied certiorari (review) in Thompson v. Marietta Educ. Association (6th Cir. 2020) and in Belgau v. Inslee (9th Cir. 2020).

In the Thompson case, a disgruntled teacher sued the Union, arguing that Ohio’s law requiring public employers to bargain only with the exclusive representative and no one else violated her First Amendment rights. Finding in favor of the Union, the Sixth Circuit Court of Appeals upheld the state law. The Court rejected the teacher’s argument that the Supreme Court’s 2018 decision in Janus v. AFSCME required a decision in her favor. The Court instead concluded that a 1984 Supreme Court decision, which held that allowing public sector unions to be the exclusive representative at “meet and confer” sessions does not infringe on non-members’ First Amendment right to speak or their freedom of association, remained controlling.

In the Belgau case, the Ninth Circuit Court of Appeals ruled that a former member remained obligated to have union dues deducted from her paychecks per the terms of her membership agreement, even after she had resigned union membership. In reaching this conclusion, the Court rejected plaintiff’s argument that her membership agreement was not enforceable because it did not contain an express waiver of her right to not pay any dues to the Union. Again, the plaintiff had argued that the Janus decision required a result in her favor.

While the denial of review in these cases is certainly good news, the outcomes are not set in stone. Currently, no appellate court has reached a result contrary to that reached by the Sixth and Ninth Circuits in these cases. If a federal appeals court creates a conflict among the circuits by reaching a different conclusion, or the current Supreme Court finds a case more to its liking, then the Supreme Court could decide to reconsider either or both of these issues. For now, we have dodged two bullets.

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