What Allegro Didn’t Tell You About Vaccine Mandate Law & “Teamsters Local 743”

Member to Member

Volume 121, No. 9October, 2021

Jennifer Hoult, J.D.

Legal and scientific misinformation fuel our COVID epidemic, imperiling our collective health and economy.  Sadly, Harvey Mars’ article, “What Does the Law Say About Mandatory Vaccinations?” (Allegro, September 2021), omitted the bedrock of vaccine mandate law and obscured the ramifications of Teamsters Local 743.

Our law is simple: Vaccine mandates are lawful.  In Jacobson v. Massachusetts, 197 U.S. 11 (1905) the plaintiff objected to a government-mandated vaccine for smallpox, a highly contagious and deadly virus like SARS-COV-2. The U.S. Supreme Court held the mandate lawful.  All 50 states now impose school vaccine mandates and provide vaccine mandate exemptions for medical counterindications.  While some states grant religious exemptions, these carry less legal weight.  As our Supreme Court held in Prince v. Massachusetts, 321 U.S. 158 (1944), “[t]he right to practice religion freely does not include liberty to expose the community … to communicable disease or … to ill health or death.”

No constitutional right is absolute. Each is balanced against others.  As Harvard Law School Professor Zechariah Chafee, Jr. said in 1919: “Your right to swing your arms ends just where the other man’s nose begins.”  GOP-appointed Justice John Mitchell Harlan’s Jacobson opinion soundly rejects current vaccine opponents’ claims that the right to liberty allows them to imperil others’ health:  “…The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.  It is within the police power of a State to enact a compulsory vaccination law… [I]n every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand…Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others” (emphasis added).  In short: Your liberty does not give you the right to harm others.

Consistent with Jacobson and Prince, our Supreme Court recently let stand Indiana University’s COVID vaccine mandate and a federal court dismissed anti-vaccination healthcare workers’ lawsuit against Houston Methodist Hospital, holding, “Methodist is trying to do their business of saving lives without giving [patients and staff] … COVID-19…It is a choice made to keep staff, patients, and their families safer. [The Plaintiff] can freely choose to accept or refuse a COVID-19 vaccine; however if she refuses she will simply need to work somewhere else.”

Our union forebears fought hard for enactment of the Occupational Safety and Health Act (“OSH”)(1970), which gives us rights to protection from serious recognized workplace hazards.  Robert Asher, Organized Labor and the Origins of the Occupational Safety and Health Act, New Solutions, Vol. 24(3), 279-301 (2014). In less than two years, SARS-COV-2 has killed over 4,648,489 people worldwide, leaving many others with life-changing injuries.  It is now unquestionably a serious, recognized hazard, subject to OSH.  OSHA’s plan to require that all OSH employers with more than 100 employees mandate vaccines and testing is a welcome, pro-labor decision.

The biology is simple: SARS-COV-2 is not a moral or political agent.  It is RNA that uses our bodies as incubators for mutation and transmission.  Failure to slow transmission speeds new mutations. If new variants render current vaccines ineffective, we will lose what protection we now have, more will die, and the crippling economic damage we have already suffered will be compounded.  We are in a race against time.  Except for people who permanently live off-grid, devoid of human connections, no one can “sit out” this pandemic.  We are all connected through human vectors of economic trade, who have continued to traverse towns, counties, states, and countries throughout this pandemic.

Thanks to the awe-inspiring response of our international scientific community, we have learned how this virus is transmitted and how to interrupt transmission, and now have three scientifically proven means of slowing transmission and mutation:  Vaccines, masks, and social distancing.  Over five billion doses of vaccines preventing most serious COVID19 effects have been administered.  The verified risks of these vaccines are all thousands of times less likely that the risk of being killed by lightning.  COVID vaccines have been verified as the cause of 3 U.S. deaths, while the virus has been verified as the cause of over 660,000 U.S. deaths.  Masking and social distancing also provide some protection.  Fischer, et al, Low-cost measurement of face mask efficacy for filtering expelled droplets during speech, Sci. Adv. (August 7, 2020).  No one of these actions provides perfect protection, so we must each use all three to slow the virus’ spread and mutation.

The Teamsters Local 743 plaintiffs appear to be three Local 743 vaccine opponents holding no legal vaccine exemptions.  Complaint, 14 ¶77a-e. On May 26, 2021, their employer notified Local 743 of its COVID vaccine mandate, which provides the strongest, science-based, OSH-consistent workplace protection, giving members two months to receive their first dose.  But, like the Houston Methodist plaintiffs, the Teamsters Local 743 plaintiffs want to refuse vaccines, keep their jobs, and impose increased COVID risks on their colleagues and customers. Simply put: These plaintiffs seek to gut their Local 743 colleagues’ OSH workplace safety rights.

Unions must represent all members.  While this usually involves representing members collectively against employers, sometimes unions must represent members attacking other member’s rights.  Member against member sexual harassment cases are one example.  Teamsters Local 743 is another. These plaintiffs’ demands necessarily infringe on fellow members’ OSH rights, making the members whose rights are under attack indispensable parties to the action.  Local 743 must name them as defendants and pay for outside counsel to defend their rights against the plaintiffs, but has done neither.  Instead, it seeks arbitration with only the plaintiffs and employer at the table.  Complaint, 11 & 18.  In negotiations or arbitration, outside the view of the majority of their Local 743 colleagues, the three plaintiffs apparently seek to skirt Illinois vaccine exemption law and gut the OSH rights of their colleagues, or perhaps seek extra-contractual payments, payments their vaccine-compliant colleagues would not receive.  The majority of Local 743 members will not receive any benefits obtained in the private proceedings the plaintiffs’ lawsuit seeks.

In Federalist No. 10 (1787), James Madison warned us about factions, “a number of citizens…who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens.”  Collective bargaining is a democratic process that gives every union local member a vote.

Teamsters Local 743 does not seek collective bargaining, likely because it would give the majority of Local 743 members standing to vote against the three plaintiffs’ OSH-gutting agenda.  This case is an anti-democratic three-member-faction’s attack on OSH rights and an end-run around democratic collective bargaining in which Local 743’s leaders are denying the majority of its members representation and due process.

The unvaccinated now propel COVID’s ravaging attacks on our health and our economy.  The AFM and our sister unions should support science-based, OSH-consistent vaccine, mask, and distancing mandates for all members and customers, with exceptions only for those with medical exemptions.  We should defend our hard-won OSH rights against all attacks, even when those attacks come from inside organized labor.  Only together can we beat this RNA and get back to work safely.

Jennifer Hoult, J.D., Member, AFM Locals 802 & 400.  A professional harpist since 1973, Ms. Hoult holds degrees in Harp (Manhattan School of Music), Computer Science & Religion (Barnard College), and Law (New York University School of Law).