Ohio teacher appeals Sixth Circuit decision upholding exclusive representation law

On Jan. 22, Jade Thompson, an Ohio Spanish teacher challenging her state’s laws allowing exclusive representative collective bargaining, appealed her case to the United States Supreme Court.

Parties to the suit

Thompson is the plaintiff. Attorneys from the Buckeye Institute and Baker and Hostetler, LLP, represent her. The Buckeye Institute describes itself as "an independent research and educational institution—a think tank—whose mission is to advance free-market public policy in the states."

The defendants are the Marietta Education Association (MEA), a teachers' union that is the exclusive bargaining representative for the district's employees, and the Marietta City School District Board of Education.

What's at issue, and how the lower courts ruled

Thompson filed suit in the United States District Court for the Southern District of Ohio, alleging that Ohio's exclusive representation law violated her First Amendment rights. Ohio law allows a union to become the exclusive bargaining agent for all public-sector employees within a bargaining unit if the union can prove that a majority of the unit's members want its representation. If a union has been certified as a unit's exclusive bargaining agent, the public employer must bargain with that union and no one else. This prohibition extends both to individuals and other labor organizations. Thompson alleged this system violated the First Amendment, even if public employees do not have to join or financially support the majority-chosen union representative. The MEA argued that neither Thompson’s “employer nor reasonable outsiders would believe that all bargaining unit workers necessarily agree with the MEA’s positions.”

On Nov. 26, 2019, the district court ruled in favor of the defendants, upholding the Ohio law. On Aug. 25, 2020, a three-judge panel of the United States Court of Appeals for the Sixth Circuit upheld the district court’s decision.

Appeal to the Supreme Court

Buckeye Institute lead attorney Robert Alt said: “For far too long, Jade Thompson has been forced to speak through and associate with a union of which she is not even a member in violation of her First Amendment rights. … The U.S. Court of Appeals for the Sixth Circuit found that old case law required it to rule against Ms. Thompson, while nonetheless concluding that Ohio’s ‘take-it-or-leave-it system’ of exclusive representation directly conflicts with the principles announced in the 2018 Janus v. AFSCME decision—a discrepancy that can be resolved only by the U.S. Supreme Court.”

Thompson’s petition for a writ of certiorari argues: 

Subjecting public workers to state-compelled union representation contravenes established First Amendment doctrine. As Janus explained, these regimes constitute “a significant impingement on associational freedoms that would not be tolerated in other contexts.” … When state law appoints a union to represent unwilling public workers, it compels their speech. The State of Ohio has imposed upon Ms. Thompson a government-appointed lobbyist who works on her behalf and in her name, as her “agent” and “representative,” even though she disagrees with the positions it attributes to her.

Thompson’s lawyers ask the Supreme Court to decide “[w]hether it violates the First Amendment to designate a labor union to represent and speak for public sector employees who object to its advocacy on their behalf” and whether Minnesota State Board for Community Colleges v. Knight, the precedent cited by the Sixth Circuit in ruling against Thompson, should be overruled. 

What comes next

The MEA and the Marietta City School District Board of Education have until March 1 to file a brief in response. On average, the court acts on an appeal within about six weeks of its filing.

The case name is Thompson v. Marietta Education Association.

What we're reading

• Capitol Fax, “US Supreme Court won’t hear Janus-related cases seeking refunds,” Jan. 25, 2021
   
• Bloomberg Law, “ANALYSIS: Union Members Are Now Mostly Government Workers,” Jan. 25, 2021
   
• National Law Review, “Unions by the Numbers: 2021 Edition,” Jan. 28, 2021
   
• HuffPost, “Biden Moves Quickly To Repair White House Relationship With Federal Workforce,” Jan. 28, 2021

The Big Picture

Number of relevant bills by state

We are currently tracking 47 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.

• Maryland HB374: This bill would extend collective bargaining rights to faculty at Baltimore City Community College.
  • Democratic sponsorship. 
  • House Appropriations Committee hearing Jan. 27.  
     
• Maryland HB486: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland. 
  • Democratic sponsorship.
  • House Appropriations Committee hearing scheduled for Feb. 3. 
     
• Maryland SB9: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.
  • Democratic sponsorship. 
  • Senate Finance Committee hearing scheduled for Feb. 4. 
     
• Maryland SB138: This bill would extend collective bargaining rights to employees of the Baltimore County Public Library.
  • Democratic sponsorship. 
  •   Senate Finance Committee hearing scheduled for Feb. 4. 
     
• Maryland SB521: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, and St. Mary's College of Maryland.
  • Democratic sponsorship.
  • Introduced Jan. 22. Senate Finance Committee hearing scheduled for Feb. 18.  
     
• Maryland SB556: This bill would establish a separate collective bargaining unit for teachers at the Maryland School for the Deaf.
  • Democratic sponsorship. 
  • Introduced and referred to Senate Finance Committee Jan. 26. 
     
• Montana HB251: This bill would bar employers from requiring employees to become, remain, or refrain from becoming members of a union as a condition of employment. It would also allow employees to revoke payroll deductions for union dues at any time with written notice. 
  • Republican sponsorship. 
  • Introduced Jan. 26. Referred to House Business and Labor Committee Jan. 27. 
     
• New Hampshire HB348: This bill would require a public employer to provide notice of a new or amended collective bargaining agreement. 
  • Republican sponsorship. 
  • House Labor, Industrial and Rehabilitative Services Committee hearing Jan. 28. 
     
• New Hampshire SB61: This bill would prohibit collective bargaining agreements that require employees to join a labor union.
  • Republican sponsorship. 
  • Senate Commerce Committee hearing Jan. 26.  
     
• Oklahoma HB1985: This bill would require that school employee unions submit to secret ballot elections in order to continue on as collective bargaining agents.
  • Republican sponsorship. 
  • First reading scheduled for Feb. 1. 
     
• Oklahoma HB2747: This bill would eliminate the Public Employees Relations Board. It would direct municipal public employers to recognize unions as the exclusive bargaining agents for police officers or firefighters upon a majority vote of the members of the bargaining unit.
  • Republican sponsorship.
  • First reading scheduled for Feb. 1. 
     
• Oklahoma SB634: This bill would require annual authorizations for payroll dues deductions for school employees.
  • Republican sponsorship.
  • First reading scheduled for Feb. 1.  
     
• Oregon HB2061: This bill would prohibit public employers and unions from entering into fair-share agreements.
  •  House Business and Labor Committee hearing Jan. 27. 
     
• Oregon HB3029: This bill would require the Employment Relations Board to develop procedures for authorizations designating bargaining unit representatives.
  •  Democratic sponsorship. 
  • Referred to House Business and Labor Committee Jan. 26. 
     
• Tennessee HJR0005: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual's affiliation status with a union or other employee organization.
  • Republican sponsorship. 
  • Assigned to House Banking & Consumer Affairs Subcommittee Jan. 27. 
     
• Washington SB5133: This bill amends the definition of a "confidential employee" for the purposes of collective bargaining.
  • Democratic sponsorship.
  • Senate Ways and Means Committee hearing Jan. 28.