If you want First Amendment protections, join the union

In 2013, the Court of Appeals held that union membership is free speech activity. This means that management cannot retaliate against employees because they belong to a public employee labor union. The question is now whether non-union members who are represented by a union during collective bargaining also have First Amendment rights to associate with the union.

The case is Donohue v. Milan, issued on November 18. The 2013 decision was State Employees Bargaining Agent Coalition v. Rowland, 718 F.3d 126 (2d Cir. 2013). In this case, the plaintiffs were let go in a reduction-in-force in around 2012. They worked for the New York State Thruway Authority, which had to implement cost-saving measures around the time it was financing a replacement for the Gov. Malcolm Wilson Bridge, also known as the Tappan Zee Bridge. Some of the layoffs were non-union members, also called agency fee payers (AFP's). Can the AFP's sue under the First Amendment in a retaliation case? The Court of Appeals says they cannot.

The issue on this appeal is: “Under Rowland, do employees enjoy First Amendment protections merely because they are represented by a union during collective bargaining such that an employment decision based on that representation is subject to strict scrutiny?” Why is this? Because, the Second Circuit says, "the First Amendment protects the practice of persons sharing common views banding together to achieve a common end.” But that case "did not say that being represented by a labor union during collective bargaining by itself conferred First Amendment protection and the heightened scrutiny that comes with it." The Court adds for good measure, "we have never held that anyone who is represented during collective bargaining is for that reason alone entitled to First Amendment protection from government interference, and we decline to do so now."

Simply put, the AFP's did not "engage[] with others in a collective effort on behalf of shared goals." What this means is that "AFPs who affirmatively disassociated with a union by objecting to paying for a union’s political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union." On the other hand, the union member plaintiffs can proceed with their case. They did affirmatively join the organization and therefore enjoy the benefits of the Rowland decision.