Eighth Circuit Upholds Public Union Exclusive Representation Designation Against First Amendment Challenge

Steven D. Schwinn, John Marshall Law School

The Eighth Circuit this week held that a Minnesota law that authorizes public employees to organize and to designate an exclusive representative to negotiate employment terms with the state did not violate the First Amendment.

The case, Bierman v. Dayton, may represent a next front, after Janus, in First Amendment challenges to public-sector unions. The Eighth Circuit quoted the time-bomb in Janus (see below) that could well foretell the end of exclusive representation, even without a fair-share requirement.

The case tested Minnesota's Public Employee Labor Relations Act, as applied to in-home care providers for disabled Medicaid recipients. The Act permits those employees to organize and designate an exclusive bargaining representative, but it doesn't require fair-share fees for non-union members. Still, dissenting home-health-care workers challenged the Act, arguing that it compelled them to associate with a union that they want no part of. (Again: They were not charged an agency fee or fair-share fee. Their claim was that the state, merely by allowing their union colleagues to designate an exclusive bargaining representative, violated their First Amendment rights.)

The court flatly rejected this claim, pointing to Minnesota State Board for Community Colleges v. Knight, which, the court said, squarely answered the question.

As to Janus's impact on this kind of case, the court wrote,

Recent holdings in [Janus] and [Harris] do not supersede Knight. Under those decisions, a State cannot compel public employees and homecare providers, respectively, to pay fees to a union of which they are not members, but the providers here do not challenge a mandatory fee. Janus did characterize a State's requirement that a union serve as an exclusive bargaining agent for its employees as "a significant impingement on associational freedoms that would not be tolerated in other contexts," but the decision never mentioned Knight, and the constitutionality of exclusive representation standing alone was not at issue. Of course, where a precedent like Knight has direct application in a case, we should follow it, even if a later decision arguably undermines some of its reasoning.