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At a time when democracy is under attack around the world, the Supreme Court is currently contemplating taking two labor rights cases that pose a profound threat not just to collective bargaining but to the foundational principle of majority rule.
Article IV of the Constitution mandates that our national government guarantee that each state maintain a republican form of government. As we know, republican governance includes selection of representatives by a majority in a designated area. An elected representative has exclusive responsibility to represent everyone until the representative's term ends. While the minority and nonvoters can petition and protest, they are not entitled to an alternative representative or no representative. The principles of republican democracy permeate state-created institutions, including town, zoning, and school boards; student governments, faculty governance in higher education, and collective bargaining.
We are unaware of any case in which the Supreme Court has ruled that a state form of governance based on majority rule and exclusive representation violates the First Amendment rights of the minority. Such an outcome, however, is now a possibility in two pending labor cases: Uradnik v. Inter Faculty Organization and Bierman v. Dayton.
In one petition, a Minnesota professor, Kathleen Uradnik, challenges a law which allows public employees to vote to select an exclusive representative—usually a union made up of other public employees—for purposes of collective bargaining. If a majority votes in favor, the representative is certified to advocate for the entire group of employees, just as a legislator represents everyone in her district.
Dissenting employees can seek the representative's removal or replacement through decertification election procedures. But in the meantime, they are not entitled to an alternative representative nor exemption from workplace rules developed through the republican system.
Professor Uradnik challenges this system on First Amendment grounds. She claims her free speech rights are being violated because a democratically elected college faculty union represents her even though she is not a union member and disagrees with many of its positions. By virtue of the Court's ruling in the Janus v. AFSCME, Uradnik is already entitled to all the benefits of union representation without contributing anything to the costs, even when she is the sole beneficiary of the services. Now she seeks to undermine the negotiating authority of the union altogether.
In the second case, plaintiff Teri Bierman uses a similar argument to challenge a different Minnesota law that allows home care providers to select an exclusive representative. Both of these Minnesota democratic systems are substantially like the procedures that exist in all federal and state collective bargaining laws.
The principle that workers should have the right to choose exclusive representatives can be traced back over a century. It was embraced in the 1915 final report of the U.S. Commission on Industrial Relations, which called for “industrial democracy”—an extension of democratic rights to workers on the presumption that “Political freedom can exist only where there is industrial freedom; political democracy only where there is industrial democracy.”
The principle of workers having the democratic right to choose exclusive representation informed federal labor policy from the New Deal forward. In urging passage of the National Labor Relations Act of 1935, New York Senator Robert F. Wagner, the act's author, emphasized that workplace democracy must be based on “the same principles as democracy in government.”
“Majority rule, with all its imperfections,” Wagner argued, “is the best guaranty of workers' rights, just as it is the surest guaranty of political liberty that mankind has yet discovered.”
The Wagner Act's system of workplace governance was subsequently extended into public sector labor relations, where its wisdom has been repeatedly confirmed. Beginning in the late 1930s, localities in West Virginia, Pennsylvania, New Jersey, and Michigan entered into contracts with exclusive union representation for public employees.
Other public sector jurisdictions initially experimented with plural grievance representation, which allowed multiple unions to represent workers in the same department or agency, but those experiments failed. In California, plural representation under the 1961 Brown Act was later replaced by exclusive recognition in legislation signed into law by then-Governor Ronald Reagan. Similarly, New York found plural representation led to conflicting and inconsistent demands from different unions and individual employees. When New York instituted formal collective bargaining in the 1960s, it adopted the exclusive representation model.
The same pattern occurred in the federal government. Initially, a plural form of representation for federal employees existed under President Kennedy's Executive Order 10988. It was quickly discovered that collective bargaining was impossible without exclusive representation, and the rules were rewritten. Exclusive representation determined by majority rule became the cornerstone of public sector collective bargaining throughout the nation.
In 1984, the Supreme Court validated that cornerstone in a majority opinion by Justice Sandra Day O'Connor that was joined by two other conservatives: Chief Justice Warren Burger and Associate Justice William Rehnquist.
Today, this decades-old precedent with such solid constitutional underpinnings is no longer safe.
The past decade has witnessed a furious assault on public-sector collective bargaining, which reached a crescendo with the 2018 decision in Janus. The anti-majoritarian reasoning in Janus suggests that a court majority might expunge majority-based republican representation from our systems of labor relations.
A ruling in favor of Uradnik or Bierman would be a more serious blow to the entire system of collective bargaining than Janus, which left intact the principle of majority rule under which unions can be selected by a majority and empowered to bargain on behalf of a voting-eligible constituency. A favorable ruling would strike at a cornerstone principle of republican democracy if the Court finds that majority-based exclusive representation constitutes a constitutional infringement on individual rights.
By overturning the principle of majority rule in one or both of these Minnesota public-sector cases, the Court would also establish a First Amendment precedent that would in turn allow anti-union activists to contest collective bargaining as it functions in the private sector under the NLRA, long a dream of anti-unionists who oppose what they call "compulsory bargaining."
It is unlikely the Court majority will fulfill that particular dream in the Minnesota cases, because it would require a very rigorous constitutional scrutiny of the NLRA, which has not been applied since the law was upheld in 1937.
Yet the Court could very well include language in its decisions that sets the stage for future challenges to the constitutionality of majority rule under the NLRA. This would be consistent with the methodology the Court majority employed that led to Janus—extensive extraneous comments in decisions that chip away at long established principles and then citation to that language in subsequent decisions to completely undermine what had been well established precedent.
Both Minnesota cases are very clearly part of a legal strategy long in the making. Should the Court accept either of them and side with the plaintiffs on the merits, it would be a major step toward undercutting workers' representational rights altogether through constitutional interpretation.
A grant of review in Uradnik or Bierman would mean that activist Justices find merit to the radical proposition that majoritarian democracy is unconstitutional in labor relations. A subsequent decision that adopted that idea would be a blow not only to collective bargaining, but to American democracy itself.
