Membership in public-sector unions has grown in recent years even as private-union membership has remained largely static. According to 2021 data from the Bureau of Labor Statistics, the rate of public-sector unionization is about five times as high as in the private sector. Union advocates see unionization in government as the path to growth. To add to their ranks, unions that have traditionally represented workers in the private economy have started recruiting public employees as members.
Recently passed laws in Colorado, Virginia and Nevada have created more opportunities for unions to force public employees into their ranks. But public employees have constitutional protections, meaning that their union’s actions must comply with the First Amendment. Four years ago, the Supreme Court affirmed these rights in Janus v. Afscme, which prohibited unions from forcing nonmember public employees to pay them.
A court ruling is one thing; enforcing it is another.
I’ve represented union members fighting to defend their rights against some of the largest public-sector unions in the country. Now I’m seeing a new trend: union officials in historically private unions across the Northeast outright denying that Janus applies to the public employees they represent.
For public employees represented by traditionally private-sector unions, understanding what rules and protections their unions should follow is trickier than ever. This is especially true when their own unions don’t seem to know the rules, leaving employees on the margins particularly vulnerable.
Tina Curtis, a lead cook in the New Haven, Conn., school system, was a member of Unite Here, a traditionally private-sector union that also represents some public employees. After Janus, Unite Here representatives gave Ms. Curtis and her public-employee colleagues union cards that said they were “required, as a condition of employment, to pay dues and/or fees to the Union.” While perhaps legal for Unite Here’s private-sector bargaining units in Connecticut, Janus prohibited such a requirement for public employees like Ms. Curtis.
Once she discovered her rights, Ms. Curtis filed a lawsuit to assert them. Though Unite Here had even enshrined its unconstitutional requirement in Ms. Curtis’s contract, the union backed down when challenged in court. Ms. Curtis won a settlement that voided the union cards, refunded her dues and stripped the language that violated Janus out of the contract covering her and her colleagues.
In New York, Long Island Rail Road employee Ray Michielini encountered antiquated union policies bordering on absurdity. His union was operating under a collective-bargaining agreement dating from 1952, which required all employees to be full union members of the International Brotherhood of Electrical Workers, or IBEW.
Though the union largely represents private employees, the railroad is a public employer under state law—so its employees have First Amendment protections.
Mr. Michielini claims that when he submitted his union resignation, IBEW officials retaliated by blocking him from working overtime. He had to file a federal lawsuit asserting his constitutional rights to force the union into a settlement that paid him back for his lost wages and guaranteed that the union and his employer wouldn’t engage in future retaliation.
Then there’s the case of the principal timpanist in the Allentown Symphony Orchestra. Glen Wilkofsky won his spot in the Pennsylvania orchestra and joined the American Federation of Musicians more than 20 years ago. In a complaint filed in U.S. District Court for the Eastern District of Pennsylvania, Mr. Wilkofsky claims that when he chose to leave the union in 2020, officials cited a contract that required him to make dues payments to the union. Mr. Wilkofsky says the union suspended him and threatened to have him fired.
In court filings following Mr. Wilkofsky’s lawsuit, union and symphony officials acknowledged that the union was certified under Pennsylvania’s public-employee statute. In fact, state law defines the symphony as a “public employer” and Mr. Wilkofsky as a “public employee.” The symphony and union dispute that this entitles Mr. Wilkofsky to Janus rights. If his litigation succeeds, Mr. Wilkofsky could make Janus rights accessible to his fellow symphony musicians.
When traditionally private unions take on representation of public employees, they need to know the rules are different. The Constitution has something to say about the rights of public employees even in non-right-to-work states. Four years after Janus, litigation is teaching traditionally private-sector union officials that they can’t ignore the Supreme Court and deny public employees their First Amendment rights.
Nathan McGrath is president and general counsel for the Fairness Center.