Collective bargaining through a labor union is supposed to “level the playing field” for workers, enabling them to obtain better terms than if they bargained on their own. That is the justification for federal and state laws that give elected unions exclusive representation power, meaning that all of the workers must accept the union as their representative. Individuality is out.
That arrangement is fine with many, but what if some workers are unhappy with “their” union? What if they don’t think the union operates in their interest? What if it makes public statements they disagree with?
The unions reply, “Too bad, but union solidarity is essential and must be preserved.”
The professors seek a judicial decree that the union neither speaks nor bargains for them.A group of professors at the City University of New York (CUNY) disagree and have filed a lawsuit seeking freedom from their faculty union, the Professional Staff Congress (PSC), which not one of them ever voted for.
Avraham Goldstein, Michael Goldstein, Mitchell Langbert, and other plaintiffs are members of the CUNY faculty and face this choice: either abandon their jobs at the university or remain tied to the PSC, which, under New York’s Taylor Law, has exclusive representational power over them. What especially bothers the professors is that PSC takes public positions that are antithetical to their religious and political beliefs. They argue that New York’s law violates their constitutional rights.
The professors, it must be stated, do not have to pay dues to PSC. That is because of the Supreme Court’s 2018 decision in Janus v. AFSCME, which held that public employees cannot be compelled to pay for the right to work at their jobs. The Court’s reasoning was that, when public unions speak, their speech is unavoidably political in nature. To force members to pay for speech they disagree with violates their First Amendment rights.
Unfortunately, the Janus ruling did not invalidate laws such as the Taylor Law that give unions their exclusive representation power. The professors therefore seek a judicial decree that PSC has no authority over them—that it neither speaks nor bargains for them.
The first stage of the case went against them. The district court judge who heard the suit, Judge Paul Engelmayer (an Obama appointee), dismissed it on the grounds that the suit was barred by a 1984 Supreme Court precedent, Minnesota Board for Community Colleges v. Knight. The holding in that case was that a public employer was allowed to exclude union-represented workers from its nonpublic meetings. Judge Engelmayer accepted PSC’s argument that this case controlled and required dismissal of the professors’ complaint.
But as a press release summarizing the professors’ appellate brief states, “They do not allege that it is unconstitutional to exclude them from PSC’s meetings with CUNY. The professors do not even want to participate in those meetings. Rather, they want to completely disassociate themselves from PSC and its speech.”
In short, counsel for PSC managed to lead Judge Engelmayer into dismissing the suit on irrelevant grounds. On appeal, perhaps the Second Circuit will focus on the actual issues raised by the suit, not the red herring of Knight.
Unions’ speech is inherently political in nature.Isn’t Janus the relevant precedent? It certainly is.
The professors’ brief observes that, in Janus, the Supreme Court recognized that exclusive representation laws give unions “the exclusive right to speak for all the employees in collective bargaining.” Such speech is inherently political in nature, and that is emphatically the case with speech by the PSC. For example, in 2021, PSC put out a statement (quoted here) condemning Israel. It said, “PSC-CUNY condemns the massacre of Palestinians by the Israeli state and cannot be silent about the continued subjection of Palestinians to the state-supported displacement, occupation and use of lethal force by Israel.”
The obvious question is, what does the conflict in the Middle East have to do with relations between CUNY faculty and the university? Why can’t PSC be silent about contentious events around the world and focus strictly on the one thing where it has knowledge and presumably some expertise, namely the working conditions of professors?
The answer is that union officials have lots of time on their hands and like to use it for their own gratification, such as political posturing. They could avoid politics, but that would mean giving up one of the perks of their position.
But when PSC speaks, it speaks for the whole CUNY faculty, and some of them can’t stand it. Avraham Goldstein took to the pages of the Wall Street Journal to argue his case, entitling his op-ed “I’m Stuck With an Anti-Semitic Labor Union: It denounces Israel and treats me as a second-class citizen for resigning.”
He wrote, “I had paid thousands of dollars in union dues for workplace representation, not for political statements or attacks on my beliefs and identity. I decided to resign my union membership and naively thought I could leave the union and its politics behind for good. I was wrong.”
Professor Goldstein continues to explain that, although the Supreme Court ruled in Janus that labor unions have a legal duty to represent all workers fairly, New York’s law permits unions to do less for non-members than for members. It has no duty to protect the interests of non-members even though it negotiated the contract that binds them, nor does it have to represent them in a grievance. In short, the union washes its hands of non-members, but they cannot wash their hands of it.
Members of the public may believe that the union represents the views of all faculty.The crux of the case, however, isn’t that PSC doesn’t do enough for non-members like the professors but that it purports to speak for them. Since New York’s law makes PSC the exclusive representative of all the faculty members, the plaintiffs have to endure PSC’s stated opposition to Israel, knowing that members of the public may believe that it represents the views of them all.
PSC tries to defend against that argument, saying that members of the public probably realize that some CUNY faculty might disagree with its public statements. The professors respond with this:
The proposition that outside observers may know the Professors don’t want to associate with PSC does not change reality. If anything, that knowledge exacerbates the Professors’ injuries because a state “forcing free and independent individuals to endorse ideas they find objectionable is always demeaning” (citing the Janus decision).
The Supreme Court has already held that public employees cannot be compelled to be members of unions or forced to pay dues to them. What Avraham Goldstein and his fellow plaintiffs are asking the Court to do is take the further, logical, constitutional step and declare that they have the right to drop all association with a union they abhor, negotiate for themselves, and, most of all, speak for themselves.
It’s impossible to see any legally cognizable reason why they shouldn’t have that right.
George Leef is director of external relations at the James G. Martin Center for Academic Renewal.