Labor & Employment Law Daily Union’s status as exclusive bargaining rep for childcare providers didn’t violate their 1st Amendment rights
Friday, March 1, 2019

Union’s status as exclusive bargaining rep for childcare providers didn’t violate their 1st Amendment rights

By Ronald Miller, J.D.

Washington’s exclusive bargaining arrangement with a union to represent state-subsidized childcare providers was constitutionally permissible. The Supreme Court has established a bright line between allowing exclusive representation and mandating the payment of agency fees.

The Ninth Circuit has affirmed a district court’s grant of summary judgment to a union and the State of Washington in a suit alleging that Washington’s authorization for the union to act as the exclusive collective bargaining representative for publicly subsidized childcare providers violated their First Amendment rights. Here, the appeals court found that the Supreme Court’s 1984 ruling in Minnesota State Board for Community Colleges v. Knight was the most appropriate guide, and rejected a childcare provider’s contention that it was bound by the observation in Janus v. AFSCME, Council 31 that exclusive union representation of non-union members impinged First Amendment rights. Judge Graeber filed a separate concurring opinion (Mentele v. Inslee, February 26, 2019, Christen, M.).

The State of Washington provides financial assistance to qualifying families for childcare costs. Under the program, families choose independent childcare providers and pay them on a scale commensurate with the families’ income. The state covers the remaining costs.

Before 2006, the state unilaterally determined the subsidy levels and other policies governing its childcare assistance programs. But in 2006, it re-categorized the providers as “public employees” for purposes of the state’s collective bargaining legislation and authorized providers to elect an exclusive bargaining representative to negotiate with the state on their behalf. The childcare providers are state employees only for purposes of collective bargaining.

Agency fees eliminated. The childcare providers elected a union, and it negotiated a number of terms and conditions for them as part of a state-wide CBA. Childcare providers are not required to join the union, but the union is required to represent all the public employees within the unit without regard to membership. Non-union members previously paid agency fees to support the union’s collective bargaining efforts. But the agency fees provision was eliminated from the CBA after the Supreme Court’s decision in Harris v. Quinn .

In March 2015, two childcare providers filed suit against the state and union, alleging that their First Amendment right to expressive association was violated when Washington recognized the union as the exclusive bargaining representative for all childcare providers because the union necessarily spoke and negotiated on their behalf. They sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. The parties filed cross-motions for summary judgment. The district court granted the motion filed by the state and union.

Exclusive union representation. The Ninth Circuit’s analysis relied largely on two Supreme Court cases that discuss the propriety of exclusive bargaining representation for public employees: Minnesota State Board for Community Colleges v. Knight and Janus v. AFSCME, Council 31. Washington and the union argued that Knight controlled the outcome of this appeal, while the employee argued that the court was bound by Janus.

In Knight, the Court concluded that the exclusion of non-union members from Minnesota’s “meet and confer” provision did not infringe their First Amendment rights. The Court explained that non-members had not been denied access to a public forum, that state employees had no right to be heard by, or negotiate individually with, a public body, and that the non-union members were free to form advocacy groups or otherwise make their views known to the state and associate with whomever they wished to associate. Thus, the non-union members’ rights to free speech and association were not abridged by the meet and confer provision.

Janus considered the constitutionality of compelling full-fledged, non-union member state employees to pay agency fees. In Janus, the Court suggested that exclusive bargaining representation does significantly impinge on the employees’ associational freedoms, but stated that this degree of impingement is “tolerated” in the context of collective bargaining agents. Janus explained that “States can keep their labor-relation systems exactly as they are”; they just “cannot force nonmembers to subsidize public-sector unions.” Also, in Janus, the Court expressly distinguished between compelling non-union members to pay agency fees (constitutionally impermissible) and mandating that any union representation be exclusive, which, the Court suggested, is a tolerated impingement on non-union members’ First Amendment rights.

Applicable precedent. The Ninth Circuit concluded that the Supreme Court’s holding in Knight is the most appropriate guide. Knight addressed the First Amendment rights of non-union members who were excluded from union meetings with the state, and in this case, the childcare provider claims that her First Amendment rights are infringed when the union purports to speak on her behalf even though she abhors the union. The appeals court was not persuaded by her argument that Janus overruled Knight. Rather, it observed that the cases presented different questions, and Janus never mentioned Knight.

Here, the appeals court observed that the Supreme Court has directed that lower court should “leav[e] to [the Supreme] Court the prerogative of overruling its own decisions,” and follow direct[ly] applica[ble]” precedent, even if subsequent decisions call into question some of that precedent’s rationale. Consistent with that directive, the Ninth Circuit applied Knight’s more directly applicable precedent and held that Washington’s authorization of an exclusive bargaining representative did not infringe the childcare provider’s First Amendment rights.

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