First Amendment Protects a Public Servant’s Freedom Not to Join — a Labor Union

Forty-five years ago this February, a federal court overturned North Carolina statutory provisions restricting municipal employees’ right to join, aid and assist labor organizations, finding them to be “an abridgment of the freedom of association protected by the First and Fourteenth Amendments” of the U.S. Constitution.

This conclusion by a three judge panel on the U.S. District Court for the Western District of North Carolina in Atkins v. City of Charlotte quickly gained wide acceptance in federal courts across the country.  Several federal courts in other circuits also explicitly affirmed that the First and Fourteenth prohibit laws and policies curtailing front-line employees’ personal right to join or support a union.  The sole exceptions are military combat personnel and other public employees engaged in especially sensitive national security work.

Today, Atkins v. City of Charlotte is settled law.  The protections it upholds for public servants have not been affected one whit by other court decisions finding that governments may licitly penalize public employees for exercising certain First Amendment rights.  For example, in its 2006 ruling in Garcetti v. Ceballos, the U.S. Supreme Court found that a district attorney who had criticized the legitimacy of a warrant could be denied a promotion as a consequence of his candor, the First Amendment notwithstanding.  The High Court reasoned that a public employer could penalize employees for opinions expressed in the course of carrying out their duties because of the government’s interest in the efficient and effective carrying out of its own operations.

Garcetti and other related decisions do not limit the scope of Atkins in any way because the court in Atkins explicitly rejected the idea that the legitimate interest of the city of Charlotte in protecting public safety could justify any statutory provision that “strikes down indiscriminately the right of association in a labor union . . . .”

Once the federal court system recognized that the Constitution protects public servants’ personal right to join and support a union, the inevitable logical conclusion to draw was that the personal right not to join or support a union must be equally protected.

Unfortunately, 45 years after Atkins, the judiciary has yet to begin applying its free-association principle to federal and state statutes consistently.  Well into the 21 st Century, case law continues to uphold the National Labor Relations Act (NLRA), the Railway Labor Act (RLA), and other statutes that recognize only a nominal right not to join a union.

Under the NLRA and dozens of state labor laws patterned after it, nonmembers don’t have the right to refuse to pay dues or fees to a union, and still keep their jobs, whenever union officials can obtain “exclusive” bargaining privileges.  No one can seriously claim that there is a genuine right not to join under these compulsory-unionism statutes.

But the fact that the NLRA, the RLA, and many state laws authorizing compulsory unionism remain on the books does not mean that the Constitution permits governments to trample public employees’ freedom not to join a union.  It only means the federal courts have yet to act to apply the well-established precedent of Atkins in an even-handed way.

The fact that neither judges nor legislators have done their duty up to now to uphold fully the First and Fourteenth Amendments in the field of labor-management relations does not give anyone an excuse to pretend that public employees have no constitutional right not to bankroll a union’s collective-bargaining activities.  Yet this is exactly what U.S. Solicitor General Donald Verrilli and Service Employees International Union (SEIU) lawyer Paul Smith did early this year during the Supreme Court hearing on Harris v. Quinn, a case that could be decided as soon as Monday and will almost certainly be decided this month.

In the Harris case, home health-care workers represented by National Right to Work Legal Defense Foundation attorneys have argued that the state of Illinois may not constitutionally force them to bankroll an SEIU-affiliated local in order to participate in two taxpayer-funded programs in which the chronically disabled are cared for (typically by relatives or friends) in their homes.

Invoking Garcetti and other related cases such as Bureau of Duryea, Verrilli and Smith insisted that the government’s interest “in the effective and efficient carrying out of its own operations” was sufficient to trump the free-speech rights of the plaintiffs.

Verrilli explained: “[T]he employees’ First Amendment interests are diminished to the extent that the government has more latitude when the government can show that the obligation it is imposing is in furtherance of the government’s legitimate interests as manager of its own operations.”

The Court should not allow Verrilli and Smith to get away with their attempted judicial sleight of hand. Neither of these lawyers would ever accept the idea that the government’s “legitimate interests as manager of its own operations” would permit the curtailment of front-line employees’ right to join and pay dues to a labor organization, except in the extraordinary cases mentioned above.  And if the government cannot constitutionally prohibit employees from joining a union, it can’t force them to join, either.

Here’s hoping that the High Court takes the opportunity presented to it by Harris to stop enabling elected officials at the federal, state and local levels to steamroll basic constitutional protections with regard to union affiliation or nonaffiliation.

At January’s U.S. Supreme Court hearing on Harris v. Quinn, Solicitor General Donald Verrilli (pictured) and union lawyer Paul Smith tried to claim the First Amendment does not protect a public employee’s personal right to refuse to join a union. But they ignored several highly relevant federal court precedents. Image: Haraz N. Ghanbari/Associated Press

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Oral Argument Transcript – Supreme Court of the United Sta