The holding in Smith v. Arkansas State Highway Employees severely limits public school employees from collectively bargaining with their employers. Because there is no federally recognized right to collectively bargain with public employers, school employees are not guaranteed the ability to express their wants and needs concerning their employment. Fortunately for Massachusetts public employees, c. 150E affords them protections akin to those set out in the National Labor Relations Act, but not all states afford such protections.  One state that recently passed such a law is Utah – in February 2025, Governor Spencer Cox signed HB 267, “Public Sector Labor Union Amendments,” into law. HB 267 now prohibits a public employer from entering collective bargaining agreements. The position of this thesis asserts that HB 267 drastically undermines school employees’ labor rights and sets a precedent for other states to reduce these rights as well. This thesis also compares how labor groups and HB 267’s supporters have tried to garner support for their respective stances.

 

As previously stated, HB 267 prohibits public employers from entering collective bargaining agreements. This interprets Smith negatively because while it holds a public employer has no duty to negotiate with its employees, HB 267 states that public employers may not negotiate with their employees at all. HB 267 also states public employers cannot recognize a labor organization as a bargaining agent for public employees. HB 267 also prohibits the use of public money or property to assist, promote, or deter union formation. It also excludes new labor organization employees from participating in Utah Retirement Systems, meaning that they have no avenue to pursue retirement benefits denials simply because they are public employees engaged in union activity. 

 

Shortly after the bill was signed into law, Utah education labor groups kicked off campaigns to repeal the law. In March 2025, the Utah Education Association(“UEA”) kicked off a statewide gathering campaign to get enough signatures to ask voters to repeal HB 267.[1] The UEA has stated the new law destroys bargaining rights since it means public employers can no longer negotiate contracts with unions after 2025, weakens union advocacy by burdening unions with unnecessary red tape and cutting off school access, making it harder for unions to fight for students and educators, and harms students because the loss of unions means the loss of critical advocates for funding, school safety, and quality education.[2] In contrast, the bill’s sponsor, State Representative Jordan Teuscher, argued that giving power “to a sole voice” to bargain collectively does not allow for representation for individuals who either disagree with the union’s efforts or who are not a member.[3] He also stated, “In a lot of our government agencies that do collective bargaining today, that (union) voice is made up of a far minority of the employment base across the board… and so there are literally thousands of voices across our state that don’t get heard as a part of that process.”[4]

 

HB 267 takes Smith’s holding one step further as it does not just state that public employers do not have to collectively bargain with employees, but that it is not allowed to at all. This restriction on Utah’s public employers goes against Smith’s spirit because while Smith was all about ensuring that public employers are not compelled to engage in collective bargaining, HB 267 restricts public employers in that they cannot negotiate even if they are willing to. This tends to implicate First Amendment issues regarding rights to free speech and free association. The Supreme Court intended flexibility so that public employers, who are primarily local and state entities, can choose to negotiate and ensure that they are not compelled to engage in negotiations. The Smith Court would not find that HB 267 is achieving the goal of ensuring flexibility and defeating compulsion in the negotiating realm.

 

Supporters of HB 267 have argued that prohibiting collective bargaining between public employers and employees ensures that public employees have their voices heard. The issue with that argument is that joining a union is a completely voluntary choice for all employees and they cannot be compelled to join a bargaining group if they do not want to. Further, even if only a select few have voted on the issue while most of the union did not vote on an issue, those in the majority still voluntarily joined the union and are bound to those terms until they choose to leave the unit at their discretion.

 

Although groups like the UEA would support this thesis, supporters of HB 267 would most likely argue that Smith supports this bill because it allows the states to decide for themselves whether to support collective bargaining between public employers and employees. They would argue that by voting for state politicians who have made the bill into law, HB 267 voices Utah’s majority opinion in that they do not support collective bargaining in the public employment context. While that point may be valid, the argument Representative Teuscher made in support of the bill can be applied in this context. By not allowing the Utah public to vote on this issue directly through a referendum or ballot question, Utah’s legislators have not allowed most Utah citizens, who most likely did not all turn out to vote in state elections, to have their voices heard. If HB 267’s supporters wanted to have true representation in public employment negotiation settings, they should have put that question up for a public vote to coincide with its principles of ensuring majority representation.