A case before the Supreme Court could correct this injustice. In Janus v AFSCME, Council 31, the court will decide whether government workers may be forced to pay a union as a condition of employment. The plaintiff, Mark Janus, a child-support specialist in Illinois, is asking the Supreme Court to declare forced union dues a violation of his and millions of other public employees’ First Amendment rights.
In a recent report, I discuss reasons why the Supreme Court should rule in favor of Janus and how states can further workplace freedom for public employees in the event that forced union dues are abolished.
Vast Differences between Public and Private-Sector Unions
Supreme Court precedent approving of forced union dues in the public sector, in part, relies on private sector labor relations cases. This is misguided. Significant differences exist between collective bargaining and unions in the public sector and private sector.
Private-sector collective bargaining is steered by the profit motive. This puts pressure on labor unions to negotiate collective bargaining agreements that do not put the employer out of business. In contrast, government unions are under no such pressure. Tax revenue is collected regardless of how expensive collective bargaining agreement provisions are.
Perhaps, most importantly, every decision made by the government is a political decision. Collective bargaining negotiations conducted in the public sector by unions is indistinguishable from lobbying activity by other private entities. In collective bargaining negotiations, union officials in the public sector lobby government on a wide range of public policy issues—seniority, class size, wages, pension benefits, among numerous others. Elected officials should determine these policies—it should not involve a shared decision making process with a private entity, like government unions. Collective bargaining in the private sector, on the other hand, is limited to economic considerations.
Since public-sector collective bargaining is not different than lobbying activity, public workers who do not support a union’s agenda should be not be compelled finance it.
Forced Union Dues Fund Outright Political Activity
Despite restrictions against using forced union dues from non-members on political or ideological activity, government unions routinely do so. For example, the costs of union conventions are normally fully chargeable to non-members. Below is an example of some of the political activity occurring at the 2016 AFSCME convention:
...at the 2016 AFSCME convention held in Las Vegas, a general session at the convention a program was entitled “AFSCME for Hillary.” Union officials called on members to become engaged in the union’s effort to “take back the U.S. Senate and flip control of Congress.” Hillary Clinton, who spoke at the convention, asked members to knock on doors on behalf of her presidential campaign. Breakout sessions were conducted to sharpen members’ political advocacy skills.
Why the Union Free-Rider Argument is Wrong
Another justification for forced union dues is the “free-rider” argument. Unions contend since all workers “benefit” from union representation, all workers should be forced to share in the cost. Further, without forced union dues, unions would face a financial burden from representing workers who choose not to pay dues. This is misguided on several fronts.
One, under the current legal framework, workers have no choice but to accept union representation once their workplace has been organized. Workers are more captive riders than free riders.
Two, government workers do not necessarily benefit from unionization. Collective bargaining agreements are one-size-fits-all, but all workers are not alike and interchangeable. Forced union representation means all workers relinquish their right to negotiate for work conditions that meet their individual needs.
Three, collective bargaining agreements and state laws shower public-sector unions with benefits for representing workers. In my report, I discuss some of the benefits that AFSCME obtains that are common among state and local collective bargaining agreements. For example, AFSCME receives what is known as release time, where public employees collect paid time off during working hours to perform private union business including to “attend grievance hearings, labor/management meetings, negotiations of their own agency and/or facility supplemental agreements, meetings covering modifications of supplemental agreements, committee meetings.” Release time can cost taxpayers millions of dollars annually.
Moving Past Forced Representation
A policy reform exists that addresses the union free-rider argument and frees workers from forced representation. Simply allow workers who do not desire union representation to represent themselves and negotiate their own work conditions.
Under this kind of policy, known as Workers Choice or members-only unions, a union would only represent, negotiate on behalf of, and collect dues from members of the labor organization. Non-members can exercise their newfound freedom to negotiate a contract with the public employer tailored to their needs.
With a win in Janus, unions may even become receptive to such a policy. Understanding that forced union dues are a policy of the past, unions may be willing to set free workers from forced representation.