Amicus Curiae Brief — Kathleen Uradnik, Petitioner v. Inter Faculty Organization, et al.

No. 18-719

IN THE

Supreme Court of the United States

KATHLEEN URADNIK,

Petitioner,

v.

INTER FACULTY ORGANIZATION, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF AMICUS CURIAE THE

COMPETITIVE ENTERPRISE INSTITUTE IN

SUPPORT OF PETITIONER

Sam Kazman

Counsel of Record

Devin Watkins

COMPETITIVE ENTERPRISE

INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

sam.kazman@cei.org

December 28, 2018

Attorneys for Amici Curiae

i

QUESTION PRESENTED

Whether it violates the First Amendment to appoint

a labor union to represent and speak for public-sector

employees who have declined to join the union.

ii

TABLE OF CONTENTS

Question Presented....................................................... i

Table of Contents ......................................................... ii

Table of Cited Authorities .......................................... iii

Interest of Amicus Curiae ........................................... 1

Summary of Argument ................................................ 1

Argument ..................................................................... 3

I. Most Public Employees Are Forced To Be

Represented By Organizations They Did Not Vote

For ........................................................................... 4

II. Exclusive Representation Allows Government to

Compel Support for Political and Ideological

Advocacy ................................................................. 8

Conclusion .................................................................. 13

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Harris v. Quinn 134 S. Ct. 2618, 2632 (2014). ........... 8

Janus v. AFSCME, 138 S. Ct. 2448 (2018). .. 1, 2, 3, 12

Wooley v. Maynard, 430 U. S. 705 (1977) ............... 2, 4

Statutes

Minn. Stat. § 179A.03 subd. 10. .................................. 5

Minn. Stat. § 179A.03 subd. 8. ...................... 2, 3, 5, 13

Minn. Stat. § 179A.06 subd. 5. .................................... 2

Minn. Stat. § 179A.12 subd. 1. .................................... 6

Minn. Stat. § 179A.12 subd. 12. .................................. 6

Minn. Stat. § 179A.12 subd. 2-3 .................................. 5

Minn. Stat. § 179A.12 subd. 4. .................................... 6

Other Authorities

AFSCME, Adopt Single Payer, (July 16-18, 2018),

https://goo.gl/9wrsNp. ............................................ 11

AFSCME, AFSCME Rejects Immigration Policy

Based on Fear (July 16-18, 2018), goo.gl/KM4ubj. 12

AFSCME, Preserving Exclusive Representation (July

16-18, 2018), https://goo.gl/7hsnMj ........................ 12

iv

AFSCME, Repeal Harmful Tax Cuts for the Wealthy

and Big Corporations (July 16-18, 2018),

https://goo.gl/9cx9sN. ............................................. 11

AFSCME, Saluting and Supporting the Role and the

Leadership of Women and Youth in Building the

Movement Against Donald Trump and His Vision

for America, (July 16-18, 2018),

http://goo.gl/P6JfVJ. ............................................... 11

Inter Faculty Organization, 2019 Legislative

Priorities (last accessed Dec. 17 2018),

https://goo.gl/fwyj8N. ............................................. 10

Inter Faculty Organization, Political Endorsements—

Inter Faculty Organization (last accessed Dec. 17,

2018), https://www.ifo.org/political-endorsements/. 9

Inter Faculty Organization, Why Join the IFO?—

Inter Faculty Organization, (last accessed Dec. 17,

2018), https://www.ifo.org/why-join-the-ifo/. ........... 9

James Sherk, Unelected Unions: Why Workers

Should Be Allowed to Choose Their

Representatives, HERITAGE FOUNDATION (Aug. 27,

2012), http://goo.gl/nxDqaC. .................................... 7

Julia Wolfe and John Schmitt, A profile of union

workers in state and local government, Economic

Policy Institute (June 7, 2018),

https://www.epi.org/publication/a-profile-of-unionworkers-in-state-and-local-government-key-factsabout-the-sector-for-followers-of-janus-v-afscmecouncil-31/. ................................................................ 1

v

Minnesota Campaign Finance and Public Disclosure

Board, Lobbying-organizations (last accessed Dec.

17, 2018), http://goo.gl/6Ahjuf. ................................. 9

Neill S. Rosenfeld, 50 Years, UNITED FEDERATION OF

TEACHERS (2010)

http://www.uft.org/files/attachments/uft-50-yearsbook.pdf. ................................................................... 7

Pet. App. 73. ................................................................. 5

St. Cloud State University, University Catalog

Faculty & Administration, Psychology (last

accessed Dec. 17, 2018), https://goo.gl/f6KhUc ....... 8

St. Cloud State University, University Catalog

Faculty & Administration, Special Education (last

accessed Dec. 17, 2018), https://goo.gl/zKi53u. ....... 8

1

INTEREST OF AMICUS CURIAE 1

The Competitive Enterprise Institute (“CEI”) is a

nonprofit 501(c)(3) organization incorporated and

headquartered in Washington, D.C., dedicated to

promoting the principles of free markets and limited

government. Since its founding in 1984, CEI has

focused on raising public understanding of the

problems of overregulation. It has done so through

policy analysis, commentary, and litigation.

SUMMARY OF ARGUMENT

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

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.

2

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 nonmembers 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.

3

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.

ARGUMENT

Minnesota state law compels the petitioner,

Kathleen Uradnik, as a condition of her employment,

to accept the Inter Faculty Organization (IFO) as her

exclusive representative. Minn. Stat. § 179A.03 subd.

8. As an exclusive representative, the IFO represents

all St. Cloud State University employees, both those

who join the union and those who do not. Id. The law

authorizes Minnesota state employers to treat the

speech of the union as the speech of all the employees

in determining work terms and conditions for

employees. This allows a majority of employees in a

bargaining unit to select an exclusive representative

who speaks for both them and for those employees who

want nothing to do with the union.

As the Supreme Court recognized in Janus v

AFSCME, that requirement is “a significant

impingement on associational freedoms that would not

be tolerated in other contexts.” 138 S. Ct. at 2478.

But, making matters worse, the vast majority of

public employees who are compelled to accept

representation from a union were never afforded the

opportunity to vote on whether they want a union or

the specific union that would represent them. In the

4

case before the Court, the IFO was certified as the

exclusive representative for St. Cloud State University

faculty in 1975. Dr. Uradnik, and the majority of her

colleagues, were not University employees at that

time. As such, many employees represented by the IFO

have never had a voice or a vote in selecting the union

that represents them today.

Another consequence of this state-law requirement

is that the IFO represents and speaks on behalf of Dr.

Uradnik through collective bargaining sessions, meet

and confer sessions, and other venues. This is

permitted even though she opposes many of the

union’s positions during collective bargaining

negotiations and advocacy on political issues. And the

IFO, like other public-sector unions, frequently

advocates for or against a broad variety of contentious

political matters.

The Supreme Court has consistently held that

freedom of speech “includes both the right to speak

freely and the right to refrain from speaking at all.”

Wooley, 430 U. S. at 714. Under Minnesota State law,

public employees must accept the speech of the IFO as

their own and lack the ability to distance themselves

from the political advocacy of their exclusive

representative.

I. MOST PUBLIC EMPLOYEES ARE FORCED TO

BE REPRESENTED BY ORGANIZATIONS THEY

DID NOT VOTE FOR

Under a majority of state legal regimes governing

public employees, when a public-sector union is

certified as the exclusive representative of a

bargaining unit, it is granted the sole right to

negotiate on the behalf of members and non-members

over terms of employment like pay, promotion, layoffs,

5

and retirement. For example, the State of Minnesota

permits public employers to require public employees

to accept an exclusive representative that is granted

the authority to “meet and negotiate with the

employer on behalf of all employees.” Minn. Stat. §

179A.03 subd. 8.

To become certified as an “exclusive representative

of all employees in a [bargaining] unit,” Minn. Stat. §

179A.12 subd. 2-3, a union must receive a “majority of

those votes cast in an appropriate unit.” Id. at subd.

10. Upon certification, all public employees are forced

to accept union representation, work under a union

negotiated contract, and accept that the union speaks

out on their behalf. Minnesota law requires Dr.

Uradnik to accept these conditions despite the fact

that she vehemently opposes many of the union’s

positions during bargaining negotiations and political

stances.

A section of the collective bargaining agreement

between St. Cloud State University and the Inter

Faculty Organization (IFO) further limits the ability

of independent employees to speak for themselves. A

section entitled “Exclusive Right” states that “[t]he

Employer will not meet and negotiate relative to those

terms and conditions of employment subject to

negotiations with any employee groups or

organizations composed of employees covered by this

Agreement except through the [Union].” Pet. App. 73.

As it stands, Dr. Uradnik, and other employees who

are similarly dissatisfied with their union

representation, are prohibited from seeking

representation other than from the IFO, and from

individually negotiating their own work terms and

conditions with St. Cloud State University.

6

Compounding the problem of compelling unwilling

employees to accept union representation is that very

few public employees represented by a union voted for

this representation or the specific union that

represents them. Once a group of employees is

organized, its union remains certified in perpetuity

unless it is “decertified” or “another representative is

certified in its place.” Minn. Stat. § 179A.12 subd. 1.

Yet, it is important to note, decertifying an exclusive

representative is an arduous process. Minnesota law

erects several hurdles to removing an exclusive

representative. A “petition for a decertification

election during the term of a contract” will not be

considered “except for a period from not more than 270

to not less than 210 days before its date of

termination.” Id. at subd. 4. In addition, when an

exclusive representative is certified, its status cannot

be challenged “for a period of one year.” Id. at subd. 12.

Instead of voluntarily selecting a specific union

representative, employees are compelled to accept

union representation as a condition of employment,

chosen by past employees.

In the public-sector, inherited union representation

is the norm, not the exception. A majority of states

passed laws in the 1960s and 1970s to give government

employees the right to collectively bargain. For the

most part, unions organized public employers shortly

after these laws were passed and there has been

relatively limited organizing activity in that area

since. As a result, most unionized public workforces

were organized over 30 years ago. Few of today’s public

employees even worked for the government when

elections were held to certify the labor unions that act

as their exclusive representatives today.

7

For example, while New York City public school

teachers voted to certify the United Federation of

Teachers (UFT) in 1961, the UFT continues to

represent these teachers to this day. Neill S.

Rosenfeld, 50 Years, UNITED FEDERATION OF

TEACHERS

(2010)

http://www.uft.org/files/attachments/uft-50-yearsbook.pdf. Analysis of U.S. Department of Education

data show that “virtually every teacher who voted in

that election has since retired.” James Sherk,

Unelected Unions: Why Workers Should Be Allowed to

Choose Their Representatives, HERITAGE FOUNDATION

(Aug. 27, 2012), http://goo.gl/nxDqaC.

Several school districts in Kansas are similarly

situated. The Kansas state legislature passed

legislation granting public-sector unions collective

bargaining privileges in 1970. By 1971, a number of

Kansas’ largest school districts had unionized.

Calculations using data from the Schools and Staffing

Survey conducted by the National Center for

Education Statistics show none of the teachers who

voted to elect the Kansas National Education

Association still are employed at these school districts.

Id.

In the top 10 largest school districts in Florida and

Michigan, only 1 percent of current teachers were

employed in the year that the union representative

was elected. Id.

In the instant case, the IFO was elected and

certified as the exclusive representative in 1975 for

teachers at Minnesota’s seven public universities. As

such, Dr. Uradnik, whose employment at St. Cloud

State University began in 1999, never had the

8

opportunity to vote on whether she desired union

representation or not. Dr. Uradnik is not alone.

An analysis of the St. Cloud State University’s

Faculty and Administration webpage, which allows

users to search for professors in each department at

the University, found only two professors whose

tenure began prior to 1975. One faculty member in the

Psychology Department began at St. Cloud State

University in 1965, St. Cloud State University,

University Catalog Faculty & Administration,

Psychology

(last

accessed

Dec.

17,

2018),

https://goo.gl/jeGpfZ. The start date of another

employee, in the Special Education Department, was

in

1974.

Id.

at

Special

Education,

https://goo.gl/jiLWNv. This analysis shows that less

the one percent of faculty at St. Cloud State University

had the opportunity to vote on choosing the union that

represents them and that they are compelled to have

speak for them.

II. EXCLUSIVE

REPRESENTATION

ALLOWS

GOVERNMENT TO COMPEL SUPPORT FOR

POLITICAL AND IDEOLOGICAL ADVOCACY

As a result of Minnesota State law, public

employees at unionized workplaces are forced to accept

the speech of an exclusive representative as their own.

It is irrelevant whether the employee is a non-member

or strongly opposes the speech of the union; the union’s

advocacy is attributed to and on behalf of these

unwilling employees.

As recognized by the Supreme Court, “In the public

sector, core issues such as wages, pensions, and

benefits are important political issues.” Harris v.

Quinn 134 S. Ct. 2618, 2632 (2014). But the speech of

an exclusive representative that is assigned to non-

9

members goes further than important political issues

that arise during collective bargaining negotiations.

Public-sector unions, such as the IFO, in their

capacities as exclusive representatives, speak out on a

variety of political matters. In the run up to the 2018

elections, the IFO issued political endorsements for

Minnesota Governor, Lieutenant Governor, Attorney

General, Secretary of State, State Auditor and state

Representatives. Inter Faculty Organization, Political

Endorsements—Inter Faculty Organization (last

accessed Dec. 17, 2018), https://www.ifo.org/politicalendorsements/. All 22 of the 2018 IFO’s political

endorsements were all in support of a Democrat

politician except for one.

On the IFO website, the union touts its “Legislative

Advocacy,” which includes working “closely with

lawmakers to advance the interests of state university

faculty during budget and policy discussions.” Inter

Faculty Organization, Why Join the IFO?—Inter

Faculty Organization, (last accessed Dec. 17, 2018),

https://www.ifo.org/why-join-the-ifo/.

Reports

submitted to the Minnesota Campaign Finance Board

show that the IFO lobbied the state legislature and

administration on a variety policy matters: K-12

education policy, higher education policy, pensions,

labor relations, human rights, and taxes. Minnesota

Campaign Finance and Public Disclosure Board,

Lobbying-organizations (last accessed Dec. 17, 2018),

http://goo.gl/ycmT6X. All of the IFO’s speech on these

topics is attributed to members and non-members,

regardless of their personal stances on these issues.

When the IFO released its 2019 legislative

priorities, it stated that these priorities were on behalf

of state university faculty. Inter Faculty Organization,

10

2019 Legislative Priorities (last accessed Dec. 17 2018),

https://goo.gl/fwyj8N. The IFO’s legislative priorities

and advocacy include:

•

•

•

•

Increased educational spending consisting of

“$252 million additional state investment for

direct campus support,” “$150 million

investment in Higher Education Asset

Preservation

and

Restoration

(HEAPR)

bonding,” and “$37 million for NextGen student

records system update.” Id.

Tuition-free college education for “Minnesota’s

low- and middle-income students to attend a

Minnesota State college or university” for up to

four years. Id.

A call to repeal “the statute requiring

Minnesota State campuses to pay one-third debt

service on all general obligation bonds.” Id.

Opposition to any federal tax conformity bill

that “includes corporate tax cuts or tax breaks

for high-income Minnesotans.” Id.

National public-sector unions take positions and

advocate for an even broader and more divisive set of

policies. For example, the published proceedings of the

American Federation of State, County, and Municipal

Employees (AFSCME) 2018 convention record the

advocacy that non-members like Dr. Uradnik were

compelled to support via their forced association with

the union:

•

Advocacy against Donald Trump. The

convention adopted a resolution condemning

“Donald Trump and his vision of America.”

More specifically, the convention resolved that

11

•

•

•

AFSCME will encourage and support the

“defeat” of Donald Trump and his policies.

AFSCME, Saluting and Supporting the Role

and the Leadership of Women and Youth in

Building the Movement Against Donald Trump

and His Vision for America, (July 16-18, 2018),

http://goo.gl/P6JfVJ.

Advocacy for Single Payer Health Care.

The convention endorsed state and federal

legislation to provide a universal single payer

health care system. AFSCME, Adopt Single

Payer, (July 16-18, 2018), https://goo.gl/9wrsNp.

Advocacy on Tax Policy. Tax funds are the

lifeblood of public-sector unions. Since taxes

fund the government, public-sector unions pay

close attention to tax policy and generally

support policies that raise taxes. For example,

the convention passed a resolution against the

“Tax Cuts and Jobs Act,” which President

Trump signed into law in December 2017. More

specifically, AFSCME vowed to “demand the

U.S. Congress to repeal these harmful tax cuts,

and enact progressive tax laws that close

loopholes for the wealthy and corporations to

ensure they pay their fair share.” AFSCME,

Repeal Harmful Tax Cuts for the Wealthy and

Big

Corporations

(July

16-18,

2018),

https://goo.gl/9cx9sN.

Advocacy for Exclusive Representation.

This resolution explains that “Exclusive

representation means the duly chosen union is

the sole voice for all workers.” AFSCME,

Preserving Exclusive Representation (July 16-

12

•

18, 2018), https://goo.gl/7hsnMj (emphasis

added). The union condemned any legislative

effort to “eliminat[e] exclusive representation.”

Id.

Advocacy for Immigration Policy. The

convention

called

upon

the

“Trump

administration to drop its DACA [Deferred

Action on Childhood Arrivals] appeal in the

courts” and resolved that Congress should pass

a “clean DREAM Act” that creates a “pathway

to citizenship for a generation of young people.”

AFSCME, AFSCME Rejects Immigration Policy

Based

on

Fear

(July

16-18,

2018),

http://goo.gl/KM4ubj.

These kinds of compelled political advocacy

through forced representation are beyond what the

First Amendment allows. As this Court noted in

Janus, there can be no justification for a state

requiring a person to “express[] support for a

particular set of positions on controversial public

issues—say, the platform of one of the major political

parties. No one, we trust, would seriously argue that

the First Amendment permits this.” 138 S. Ct. at 2464.

And yet this is exactly what is happening to nonmembers like Dr. Uradnik.

13

CONCLUSION

For the foregoing reasons, this Court should grant

this petition to consider whether the exclusive

representative requirements in Minn. Stat. § 179A.03

subd. 8 violate the First Amendment.

Respectfully submitted,

Sam Kazman

Counsel of Record

Devin Watkins

COMPETITIVE ENTERPRISE

INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

sam.kazman@cei.org

December 28, 2018

Attorneys for Amici Curiae