Does a Union Have a First Amendment Right Not To Represent a Worker?

Some of my labor law colleagues for the Cornell Conference worked on this question. It’s fascinating and sheds light on the future of unions in America.

Background: In 2018, the Supreme Court ruled in Janus that a public employee has a First Amendment right not to pay mandatory union dues. The worker doesn’t have to explain his or her reason.

This sets up a free rider problem. Those workers get union benefits without paying. This includes having the union file grievances for them and arbitrate cases—things that cost money.

The union is required to do this under labor law. That’s because the union has a “duty of representation” and is certified by the government as the “exclusive bargaining agent.” Think of the electoral college. If a thin majority of votes go for George W. Bush in Florida (2000 election), then Mr. Bush gets all the electoral votes for Florida. But this overlooks the fact that 49% didn’t vote for him. In my strained analogy, he is the “exclusive bargaining agent” for all of Florida. (I hope you see the lame comparison!)

So now my colleagues are thinking about this:

A worker is fired. He didn’t pay dues, invoking his “Janus right” under the First Amendment. But the union is still on the hook to represent him under traditional labor law.

One colleague says no. She believes that the First Amendment also has a right of association (that is undeniably true). So, she posits that the union has a constitutional right to associate with people who pay dues. Interesting. I don’t think courts will buy it because unions have this built-in duty to represent everyone, even dissenters.

Another colleague has a better theory. She says the First Amendment has a right to NOT speak. These cases usually involve efforts to get a person to disclose information—say, your citizenship status on a government form.

Okay. She argues that a union still has to represent the non-dues payer, but under the First Amendment has a right not to speak up for the worker either by filing a grievance or by advocating for the worker at arbitration. That is a better theory because the worker still gets benefits of a union contract, including wages and job protections. Plus, unions turn down requests to arbitrate by dues-payers all the time, especially when the worker is in the wrong.

For now, the free rider problem exists for unions.