Federal Union Lawyers Rediscover Freedom of Non-Association
A little more than three decades ago, U.S. Supreme Court Justice William Brennan’s majority opinion in Roberts v. U.S. Jaycees[1] cited several ways in which government actions may “unconstitutionally infringe upon†an individual’s “freedom to speak, to worship, and to petition the government for redress of grievances†as well as upon the “correlative freedom to engage in group effort toward those ends . . . .â€
In one important category of First Amendment violations, Brennan explained, government tries to “interfere with the internal organization or affairs†of a private association. And there “can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.â€
“Such a regulation,†Brennan continued, “may impair the ability of the original members to express only those views that brought them together.â€Â Consequently, “[f]reedom of association . . . plainly presupposes a freedom not to associate.†(Citation omitted.)
Union Officers Have Contended They Should Not Be Forced to Accept Membership Application of Employee Who Had Harshly Criticized Them on His Facebook Page
In the wake of Roberts and other similar rulings, a federal or state law or other policy authorizing the “forced inclusion of an unwanted person in a [private] group†must be regarded as an infringement of the group’s freedom of expressive association “if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.â€[2]
That’s why Texas-based bosses of the National Federation of Federal Employees (NFFE), a government union that is affiliated with the International Association of Machinists (IAM/AFL-CIO), have contended it was their prerogative to keep Jonathan Jarman out of their organization.
In November, 2011, Jarman, a security guard at Red River Army Depot (RRAD) in Texarkana, Texas, applied for membership in Local 2189 of the NFFE union after being promoted to a job that put him under that union’s “exclusive†(monopoly) bargaining power.
Local 2189 kingpins and their loyalists did not want to admit Jarman, who while employed as a security guard had also served as president of Local 124 of the International Guards Union of America (IGUA). The NFFE officials had had run-ins with Jarman ever since 2008, when he became IGUA Local 124 president.
But their mutual dislike for one another intensified in 2011, when, unlike officers of the other four recognized unions at the RRAD, NFFE Local 2189 bosses opposed having a binding membership vote on whether or not to support a proposed schedule change.
Jarman, who was eager to block the schedule change, lashed out at Local 2189 officals on his personal Facebook page. Rank-and-file members of Local 2189 should, he opined:
rise up and create a grassroots movement so strong that your National knows you will either have your vote or you will decertify them and get a new union. . . . [D]on’t let anyone tell you that you can’t decertify your union if they become corrupt.[3]
‘Forced Inclusion’ Violates Local 2189’s ‘Freedom of Expressive Association’?
The post itself was only visible to Jarman’s Facebook friends. But his friends could and did share it with other Facebook members, including Local 2189 members and officers. Subsequently, when Jarman applied for membership in Local 2189, officers called a meeting at which they successfully pressed attending members to vote to reject Jarman’s membership application. Union bosses cited the Facebook post as evidence that, once he belonged to Local 2189, Jarman would launch an effort to get the union decertified.
But, regardless of his true motive, Jarman was certainly determined to join Local 2189. After being denied admission, he filed an unfair labor practice charge (ULP) against union officers with the Federal Labor Relations Authority (FLRA). Jarman insisted that the local was obligated to allow him to become a member under Sec. 7116(c) of the Civil Service Reform Act of 1978 (CSRA).
Section 7116(c) provides that it is a ULP for a federal union to deny initial membership to any employee, or expel any current member, subject to its “exclusive†bargaining power unless the employee fails “to meet reasonable occupation standards uniformly required for admission†or fails to pay the amount of dues uniformly required of all union members. Section 7116(c), as interpreted in FLRA precedents, also allows federal unions to expel members whose actions taken while they were members “threaten or attack the union’s existence as an institution.â€Â But even an employee who “admittedly was determined to destroy the union ‘from the inside’†could not have his or her initial membership application rejected for that reason.[4]
FLRA Administrative Law Judge Susan Jelen found that the exceptions granted in Section 7116(c) did not apply in Jarman’s case, so the Local 2189 brass had to acknowledge it had been wrong and retroactively grant him membership as of the date on which he originally applied for it. But Local 2189 officers appealed, contending that, even if Jelen was correct about the NLRA, the “forced inclusion†nevertheless violated the NFFE’s “freedom of expressive association†under the First Amendment.
 Big Labor Special Privileges Spawned the Individual Employee’s ‘Right to Join a Union’
At first blush, it may indeed seem odd to a disinterested observer that any private organization should be compelled by law to admit as a member an applicant who has for years feuded with the organization’s leaders. Indeed, before the New Deal legislation of the 1930’s granted to union officials an array of special privileges that are routinely denied to voluntary associations, courts and lawmakers consistently allowed unions to exclude from membership anyone for any reason.
In Mayer v. Journey Stonecutters Association, a New Jersey case identified by the late University of Pennsylvania law professor Clyde Summers as “the earliest . . . found [anywhere in the country] involving the right of a worker to join a union,†the court found no such individual right existed:
[T]he body has a clear right to prescribe qualifications for its membership.  It may make it as exclusive as it sees fit. It may make the restriction on the line of citizenship, nationality, age, creed, or profession, as well as numbers. This power is incident to its character as a voluntary association.[5]
In Summers’ view, expressed in a 1947 Columbia Law Review article entitled “The Right to Join a Union,†this 1890 ruling was quite defensible at the time it was issued. Since “many unions had originated as workingmen’s clubs or friendly societies,†applying the same rules “to admission to labor unions as to lodges and churches†seemed reasonable to the Mayer court 125 years ago.
And until New Deal lawmakers and the presidential administration of Franklin Delano Roosevelt, with judicial acquiescence, radically overhauled federal labor policy during the 1930’s, legislators and courts continued to lack obvious grounds for interfering when trade unions chose to deny admission to some workers while granting it to others.
 ‘[T]he Non-Union Worker Is Governed by Any Agreement Which the Union May Make Even Though He Has No Voice in Making It’
As Summers explained, the “almost revolutionary changes in unionization and labor relations†imposed by New Deal statutes such as the 1935 Wagner Act “made clear the inapplicability†for trade unions of the legal rules governing membership admissions for religious and social organizations.
To start with, the Wagner Act statutorily authorized, for the first time, so-called “closed shop†arrangements mandating that applicants join a union before a business can hire them.
The combination of “extensive closed shop provisions†and legal precedents stating that there was no right to join a union led to many abuses:
Among the unions which engage in widespread exclusionary practices are those in the construction trades, and it is precisely those unions which have the most tightly locked closed shop. Although it has affected others, it has been especially severe on Negroes who have been almost completely excluded from the plumbing and electrician trades.  Exclusionary policies of the Machinists and Boilermakers practically barred Negroes from the shipbuilding industry until 1942. A worker may not only be barred from his chosen trade, but in those communities where unionization is almost complete, exclusion from the union may deny him the right to work at all.[6]
Even in cases where a worker who is denied admission to a union is not thereby also denied the opportunity to obtain or keep a job, exclusionary practices by unions that wield the legal power to compel the employer to recognize them as the “exclusive†bargaining agent for front-line employees, whether they are union members or not, result in considerable harm:
[Union officials’ agreements with employers] may contain provisions governing almost every conceivable term and condition of employment including wage rates, seniority, lay-offs, grievance procedure, and arbitration, and these agreements are now almost uniformly recognized as being enforceable in court. It is one thing to exclude a person from participating in enjoyable social functions, but it is another thing to exclude him from participating in determining the rules which will govern his working hours and his economic well-being.[7]
Under government-authorized union monopoly bargaining, a worker who chooses not to join the union or who is denied the right to join must “depend for redress of his grievances on the mere favor and generosity of the [union] shop chairman or management.â€Â To prevent union officials’ from wielding their special privileges in ways that are flagrantly discriminatory against nonmembers, the U.S. Supreme Court has held since its 1944 ruling in Steele v. Louisville & N.R.R.[8] that “exclusive†union negotiators have a “duty of fair representation.â€
But “more subtle forms of discrimination†against union nonmembers continue to be green-lighted, as a practical matter, under Steele and its progeny:
During collective bargaining, terms concerning many different types of work are involved, and compromises are essential. Reason, fortified by experience, makes clear that concesions will be granted by the union at those points where it will least affect its [dues-paying] members. Departments in which non-union workers predominate will be sacrificed to preserve advantages in those departments where union members predominate. In the words of one union leader, “Why should we hold out for a bunch of lousy scabs?â€[9]
In recognition of the fact that employees who are denied the opportunity to join the union that wields monopoly-bargaining power in their workplace are put at an unfair disadvantage, the authors of the CSRA decided to make Section 7116(b) part of the statute.  As we have seen, it prohibits “exclusive†union bargaining agents from rejecting the membership applications of federal employees who are subject to their control, except under a handful of circumstances.
Texas NFFE union bosses are now fuming about how this provision restricts their “freedom of non-association.â€Â But if the union hierarchy really wants to be able to screen out unwanted members, it must be willing first to give up its monopoly-bargaining privileges.
Local 2189 Officials: Having Jonathan Jarman as a Member Would Prevent Us From ‘Advocating’ Our ‘Viewpoints’
In appealing to the FLRA Judge Jelen’s order to accept the union membership application of Jonathan Jarman retroactively to the day it had first been submitted, NFFE Local 2189 officials contended that this remedy would violate their “freedom of association under the First Amendment.â€
Jarman had stated Local 2189 ought to be decertified because of its officers’ opposition to putting proposed federal employee work schedule changes up for a vote among affected employees. The Local 2189 brass disagreed, not surprisingly. Having Jarman as a member, union officers contended, would prevent them from advocating their “viewpoints against decertification . . .â€[10] and thereby infringe impermissibly on their right of free association.
Judge Jelen had refused to consider this argument, based on her belief that she did not have the authority to review constitutional objections to the CSRA. But FLRA Chairman Carol Waller Pope and member Ernest DuBester contended federal case law does give their panel such authority when by its exercise they may prevent a case from unnecessarily going to the courts.
Pope and Dubester noted that Local 2189 bosses would retain the right to impose an array of penalties, potentially including expulsion from the union, to “discipline†Jarman if as a member he engaged in actions that “threaten[ed] or attack[ed]†Local 2189’s “existence as an institution.â€Â Accordingly, they concluded that the plaintiffs had failed to demonstrate that requiring them to admit Jarman as a member “would violate†their “freedom of association†as elucidated in federal jurisprudence such as Boy Scouts of America v. Dale 530 U.S. 640 (2000).[11]
‘Whose Rights Are We Talking About Here?’
It is easy – and perfectly warranted – to laugh at federal union officials who insist they shouldn’t be required to accept the membership applications of workers who have vociferously criticized the way they run their organizations.
How can federal union officials complain, with a straight face, about being forced to admit any employee as a member, when they routinely force nonmember employees, with the CSRA’s abetment, to accept their bargaining “services,†regardless of whether or not the nonmembers want them or believe they benefit from them?
Undoubtedly, it was the hypocrisy of the NFFE Local 2189 hierarchy that prompted FLRA member Patrick Pizzella to exclaim, in a separate opinion concurring with Pope and DuBester’s judgment and order in the case, “Wait a minute!! Whose rights are we talking about here?â€[12]
But as opportunistic and insincere as Big Labor bosses’ invocation of the freedom of non-association in NFFE Local 2189 v. Jarman may have been, they had one reasonable point to make. Under normal circumstances, lawmakers and courts have no business interfering with private organizations’ ability to accept or reject membership applications, as they please.
As an Empire State court observed a century and a quarter ago in contemplating a case brought by an individual seeking to compel a political club to admit him as a member, “If they . . . will not associate with him, upon what reasoning or principle should they be compelled . . . ?â€[13]
But as a consequence of the monopoly-bargaining provisions in the CSRA, normal conditions do not prevail in unionized federal workplaces.
In organized units of federal agencies, the CSRA dictates that only union “exclusive†bargaining agents may deal with federal employers on matters of scheduling, discipline, transfers, and other workplace issues. Employees may not negotiate over any of these matters with the employer as individuals.
Therefore, to have any say whatsoever in determining what the “employee†position is on scheduling changes, penalties for misconduct, etc., a federal civil servant must join the union. Employees who are denied the freedom to join the organization wielding power over them are effectively made into second-class citizens:
To the excluded worker, management prerogative has merely been replaced by union prerogative. The union has a legislative power over the worker’s economic existence, and yet the worker has no voice in making legislative decisions. To deny the worker a right to join the union that represents him is to deprive him of his economic ballot.[14]
Of course, CSRA 7116(c) is far from a sufficient remedy for the injustices caused by the pro-union monopoly provisions in the statute. Many federal employees have good reason not to wish to join or bankroll the union that is installed in their workplace. Simply for exercising their legal prerogative not to join, they become second-class citizens in the workplace, just as they would be if they wished to join the union but were not allowed to do so. CSRA 7716(c) does nothing to help such workers.
 An Opportunity For Federal Union Bosses
Amending the CSRA to eliminate “exclusivity†and establish federal union officers as bargaining agents for their members only would protect the freedom of independent-minded civil servants and render 7116(c) unnecessary.
Repeal of this provision could be part of the overhaul revoking union officials’ license to speak for nonmembers on workplace matters.
By repudiating their monopoly privileges, union officials can thus restore their ability to choose who may join.
If federal union chiefs refuse to take advantage of this opportunity, it will simply mean that they value trampling on the individual employee’s freedom of association more than they value safeguarding their own freedom.
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Stan Greer is the National Institute for Labor Relations Research’s senior research associate. He may be reached by e-mail at stg@nrtw.org or by phone at 703-321-9606.  Nothing here is to be construed as an attempt to aid or hinder the passage of any bill before Congress or any state legislature.
[1] 486 U.S. 609 (1984).
[2] Boy Scouts of America & Monmouth Council v. Dale 530 U.S. 640 (2000).
[3] See 68 FLRA No. 66, the Federal Labor Relations Authority’s decision and order in NFFE Local 2189 (respondent) and Jonathan Jarmin (charging party), DA-CO-12-0111, March 24, 2015, p. 374
[4] See AFGE, Local 2344, AFL-CIO, 45 FLRA No. 103.
[5] See “The Right to Join a Union,†an article by Summers appearing in the January 1947 edition of the Columbia Law Review, pp. 33-74. See esp. p. 37.
[6] Ibid, p. 42.
[7] Ibid, pp. 43-44.
[8] 323 U.S. 192.
[9] See Summers, p. 53.
[10] See FLRA decision and order in NFFE Local 2189, p. 377.
[11] Ibid, pp. 378-9.
[12] Ibid, p. 382.
[13] McKane v. Adams, 123 N.Y. 609, 612, 25 N.E. 1057 (1890).
[14] Homer M. Hewitt, “The Right to Membership in a Labor Union,†University of Pennsylvania Law Review (1951), pp. 919-948, see esp. p. 926.