The tumultuous and ever-changing landscape of public sector labor law could be in for yet more change in Ohio. Many will remember the US Supreme Court decision in Janus v. AFSCME which held that the First Amendment prohibits public employers from collecting fees from non-union employees as a condition of working in public service. Now, a case that was recently decided by the Sixth Circuit could make its way to the Supreme Court and may spell major changes on the way for Ohio public employers and labor unions.

In the landmark 2018 case Janus v. AFSCME, the US Supreme Court held that public-sector unions cannot compel non-member employees to pay agency fees (or fair share fees) to cover the cost of collective bargaining because it violated the First Amendment right of non-member employees. Plaintiff Mark Janus was an employee with the State of Illinois who refused to join AFSCME, his bargaining unit’s exclusive representative, due to his opposition to many of the Union’s political positions. The Court reasoned that forcing individuals to pay agency fees, combined with the Union’s political advocacy, amounted to forced subsidization of the Union’s speech on matters of public concern. Accordingly, the Court ruled that public employers cannot deduct agency fees from non-union employees.

Now, a new case questioning Ohio law is making its way through federal courts. The case is Thompson v. Marietta Education Association, and is brought by a Spanish teacher in Marietta, Ohio who is challenging the designation of the Marietta Education Association as the exclusive representative for all public employees in her bargaining unit. Under Ohio law, a union may become the exclusive representative of the bargaining unit upon SERB’s certification that a majority of the bargaining unit members voted to be represented by the union. Following certification, public employers are prohibited from bargaining with any bargaining unit member or their representative even if the employee is not a member of the union. Thompson states that she disagrees with the policies and political stances of the Marietta Teacher’s Association and claims that Ohio law is violating her First Amendment rights by forcing her to be represented by the union.

Thompson filed her case in the US District Court for the Southern District of Ohio, which initially ruled in favor of the union in 2019. Thompson appealed and the Sixth Circuit begrudgingly affirmed the district court’s ruling in favor of the union in late 2020. Despite the holding, the Sixth Circuit expressed serious concern that the Ohio law conflicts with the Supreme Court’s ruling in Janus. Writing for the majority, Judge Amul Thapar described Ohio’s system of exclusive representation as a “take-it-or-leave-it” system which forces many public employees in Ohio to agree to union representation or find another job. Judge Thapar explicitly stated that the system, codified in Ohio law, is “in direct conflict” with the First Amendment principles described in Supreme Court’s ruling in Janus.

However, Judge Thapar noted that when the Supreme Court decided Janus, it did not explicitly overturn its decision in the 1984 case Minnesota State Board for Community Colleges v. Knight. The Knight case squarely addresses the question of exclusive representation at issue in the Thompson case and prevents the Sixth Circuit from ruling in favor of Thompson and overturning the challenged Ohio law. As a result, the Sixth Circuit affirmed the decision in favor of the union.

In late January, Thompson appealed the Sixth Circuit decision to the US Supreme Court. While the Court may take this case as an opportunity to overturn the Knight decision, which conflicts with the court’s holding in Janus, Supreme Court review is not guaranteed. A petition for certiorari was filed in a similar case, Reisman v. Associated Faculties of the University, where a university professor challenged the Maine equivalent of the Ohio law granting unions exclusive representation status. Like Thompson, Reisman disagreed with political stances and bargaining positions taken by the union, but he was unable to seek other representation under Maine law.

While the Supreme Court ultimately declined to take the Reisman case, it may be more inclined to review the decision in Thompson for two reasons. First, the plaintiff in Thompson was required to associate with a union whose political views and bargaining preferences she disagreed with just like the plaintiff in Reisman. But in Thompson, the Marietta Education Association opposed her late husband in his bid for the Ohio General Assembly by publishing negative advertisements and sending emails to Marietta High School teachers opposing his candidacy. This fact underscores the ways in which current Ohio law forces public employees to associate with groups which directly oppose their political beliefs. Second, Judge Thapar’s direct criticism of the precedent in Knight as conflicting with Janus may urge the Court to grant the appeal in order to resolve the conflict.

Whether the Supreme Court ultimately decides to take the case remains to be seen. But whether it is the Thompson case or another case from another state, the writing is on the wall for exclusive representation statutes in Ohio and elsewhere. It is likely that the Supreme Court will eventually take a case and decide once and for all whether such statutes are constitutional in the public-sector labor context.

The attorneys at Fishel Downey will closely monitor the developments in the Thompson case. If you have a specific question regarding this case, or any other labor matter, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.