The Supreme Court said in 2018 that
[w]hen a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. Janus v. AFSCME, at 2473.
The Court therefore appears to embrace the idea that speech which might be an unprotected
private grievance when one employee does it becomes protected by the First Amendment when the union is involved in supporting that grievance. This idea was central to the Court’s decision in Janus that, because union grievances and bargaining were of public concern, employees had a First Amendment right to choose for themselves whether to support them or not.
This dovetails nicely with many of the practical reasons that an employee engaged in free speech criticizing her government employer is more protected when she does it through and with her union:
- When you speak through the union, it is easier to be anonymous. You have the right to anonymous participation in the union.
- When you speak through the union, you have the power of the many other members standing at your back with you. This both makes your voice more effective and makes you less likely to suffer retaliation. Retaliating bosses typically prey on the weak, not the strong.
- Your union can negotiate avenues for effective speech up the chain of command and enforce them.
There is an initial hurdle, of course. Before the union can be effective it must have the support of a core of people determined to improve things at work. And the stronger it grows in membership and support, the more effective all of your speech will be.
But most people don’t realize that you do not need any outside union to come in and help you. You can start a real union all by yourself, with just a little simple paperwork and the support of your friends and coworkers.
And in the end there can be no question that government employees benefit from standing together with each other in a union, and speaking out about the issues that must be addressed to improve the job.
And when they do so, they are protected from retaliation by the First Amendment. A strong legal representative that understands this area of law is essential to every public employee union - particularly in a state like Mississippi.
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