On Jan. 2, 2020, a professor at the University of Maine filed an appeal with the U.S. Supreme Court requesting that it overturn a Maine law compelling public-sector employees to accept a union’s representation regardless of their membership status with that union (i.e., exclusive representation).

Who are the parties to the suit? The plaintiff is Jonathan Reisman, an associate professor of economics and public policy at the University of Maine at Machias. He is being represented by attorneys from The Buckeye Institute, an Ohio-based think tank, and BakerHostetler, a Washington, D.C. law firm. The defendants include Reisman’s union, the Associated Faculties of the University of Maine, the University of Maine and its board of trustees, and the state of Maine. The Associated Faculties of the University of Maine, an affiliate of the National Education Association, represents about 1,000 faculty members.

What is at issue? Reisman argues that Maine’s exclusive representation law violates his First Amendment free-speech and associational rights. Robert Alt, president and chief executive officer of The Buckeye Institute and a lead attorney for Reisman, said, “If state law cannot compel public employees to financially support union advocacy — as the [Supreme Court] ruled in Janus v. AFSCME — how can states require these same public employees to accept representation from unions that many of them have chosen not to join?”

How have the lower courts ruled in this matter? On Dec. 3, 2018, Judge Jon Levy, of the U.S. District Court for the District of Maine, dismissed the case. Levy said, “[By] authorizing the union, in its role as the agent for the bargaining unit, to negotiate with the board on matters related to the terms and conditions of employment, the act does not cloak the union with the authority to speak on issues of public concern on behalf of employees, such as Reisman, who do not belong to the union. Reisman remains free to speak out in opposition to the union and its positions as he sees fit. His constitutional challenge to the act thus rests on a fundamental misconception.”

Reisman appealed Levy’s decision to the U.S. Court of Appeals for the First Circuit. A three-judge panel, comprising Judges O. Rogeriee Thompson, Bruce Marshall Selya, and David Barron, heard the appeal. On Oct. 4, 2019, the panel voted unanimously to affirm Levy’s dismissal. Barron, writing for the court, said, “Considered in context … § 1025(2)(E) [the challenged law] is not properly read to designate AFUM as Reisman’s personal representative, as he contends. Rather, that provision merely makes clear that a union, once it becomes the exclusive bargaining agent for a bargaining unit, must represent the unit as an entity, and not only certain of the employees within it, and then solely for the purposes of collective bargaining.”

• Levy, Thompson, and Barron were appointed to their positions by President Barack Obama (D). Selya was appointed by President Ronald Reagan (R)

What comes next? In a press release announcing the appeal, Andrew Grossman, counsel of record for Reisman, said, “Following the Court’s landmark Janus ruling, it is clear that these [exclusive representation] laws are unconstitutional, and we hope the Court will recognize them as such.” The formal appeal, known as a petition for writ of certiorari, can be read here. The opposing parties have 30 days to file a brief in response. On average, the court acts on an appeal within about six weeks of its filing.

What we’ve been reading

• The American Prospect, “Historic Union Drive Makes Delaware the First State Again,” Jan. 14, 2020
• Canton Daily Ledger, “Looking back at 2019 from workers’ perspective,” Jan. 14, 2020
• Lexology, “Virginia’s Right To Work Law Is Under Attack,” Jan. 13, 2020
• Maine Wise, “Maine professor suing faculty union appeals his case to the Supreme Court,” Jan. 9, 2020

The big picture

Number of relevant bills by state

We are currently tracking 58 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s)

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. Bills are listed in alphabetical order, first by state then by bill number.

• Kentucky HB231: This bill would allow public-sector employees to form, join, and assist labor unions.
  • Referred to House State Government Committee Jan. 13.
• Kentucky HB251: This bill would eliminate existing state laws restricting the rights of public-sector employees to form, join, and participate in unions. This bill would allow public employers to make agreements with labor unions requiring union membership as a condition of employment.
  • Introduced Jan. 13; referred to House Economic Development and Workforce Investment Committee Jan. 15.
• Maine LD900: This bill authorizes certain classes of public-sector employees to strike.
  • Hearing scheduled Jan. 15.
• Pennsylvania HB785: This bill would require public employers to inform non-union employees and new employees that they do not have to join or pay fees to a union as a condition of employment
  • Removed from table Jan. 14.
• Tennessee HJR0687: This bill proposes a constitutional amendment making it unlawful for the state and any of its subdivisions, as well as any person, corporation, or association, to make union participation a condition of employment.
  • Introduced and referred to House Consumer and Human Resources Committee Jan. 14.
• Vermont H0700: This bill would require employers to provide unions with employee contact information. It would provide for automatic deduction of union dues from members’ paychecks. It would allow unions to meet with new employees to provide them with information about union membership. It would also prohibit recipients of state funds from interfering with union organizing efforts.
  • Introduced and referred to House General, House, and Military Affairs Committee Jan. 15; hearing scheduled Jan. 16.
• Virginia SB939: This bill would permit local governments to recognize unions as bargaining agents for public-sector workers.
  • Introduced and referred to Senate Labor and Commerce Committee Jan. 13.
• Washington HB1333: This bill would alter the definition of a public employee under the state’s public employee’s collective bargaining law.
  • Reintroduced and retained in present status Jan. 13.
• Washington HB1452: This bill would extend collective bargaining rights to employees of the legislative branch of state government.
  • Reintroduced and retained in present status Jan. 13.
• Washington HB1845: This bill would establish that payroll deduction authorizations must be made directly by employees to employers on at least a biannual basis.
  • Reintroduced and retained in present status Jan. 13.
• Washington HB2017: This bill would establish collective bargaining rights for administrative law judges.
  • Reintroduced and retained in present status Jan. 13.
• Washington SB5623: This bill would declare that public employers and public-sector unions are not liable for claims involving agency fees paid to unions prior to Janus.
  • Reintroduced and retained in present status Jan. 13.
• Washington SB5691: This bill would extend collective bargaining rights to employees of the legislative branch of state government.
  • Reintroduced and retained in present status Jan. 13.
• Washington SB6224: This bill would establish collective bargaining rights for administrative law judges.
  • Reintroduced and retained in present status Jan. 13.