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Exclusive bargaining laws violate First Amendment rights

Citizen Action Defense Fund has joined 29 other state policy organizations and public interest law firms in an amici curiae brief to the United States Supreme Court in the case Thompson v. Marietta Education Association. The case involves a public school teacher in Ohio, who is objecting to a state law that designates the local teacher’s union as her exclusive bargaining representative, even though she is not a member of the union.

A number of states, including Washington, have similar “exclusive” bargaining representative laws. Such mandatory arrangements might have worked as part of a larger statutory scheme that required public employees to join a union or pay agency fees to the union. But following Harris v. Quinn and Janus v. AFSCME, with public employees no longer required to join a union or pay agency fees, it makes little policy sense for states to continue mandating exclusive bargaining representatives.

But more importantly, “exclusive representation” violates the First Amendment rights of public employees by unconstitutionally compelling their speech and association choices. If public employees do not wish to subsidize their union, they should also have the option to negotiate directly with their employer rather than be forced to let their union speak and negotiate on their behalf.

While Thompson v. Marietta Education Association originated out of Ohio, it has import ramifications for Washington. In 2019, the Ninth Circuit Court of Appeals ruled in Mentele v. Inslee that Washington’s “exclusive representation” laws were permissible. However, a favorable ruling by the U.S. Supreme Court in Thompson would give public employees in Washington another opportunity (this time armed with Supreme Court precedent) to challenge our exclusive representation law.