The government’s days of forcing non-union members to pay union fees are likely numbered. A few weeks ago, I discussed two pending cases challenging such fees and I explained that such fees amount to compelled speech. This post explains why those fees are unconstitutional. When defending compelled speech, the government faces an uphill battle and must present a very strong justification. The government has no such justification for compelled union fees.
The “free rider” problem is the government’s first reason for forcing all public employees, including non-union members, to pay union fees. The union is legally required to represent members and non-members, so fairness requires that both groups pay for the union’s expenses. Further, the argument goes, the union might go out of business if every worker could stop paying union fees and expect others to foot the union’s bills.
The free rider problem does not justify compelled union fees. This rationale mistakenly assumes that a labor union’s collective bargaining actually benefits all of the workers the union represents. Suppose an employer must decide between cutting compensation for all of its employees and laying off several junior workers. The majority of the employees (and thus the union) will probably support the second option. In such a scenario, the union likely cannot negotiate for the benefit of all the workers it represents. The employees threatened with layoff would not be free riders if they refused to subsidize the union actively seeking to get them laid off.
Further, a union can exist without government-compelled union fees. Many organizations exist despite the fact that people can obtain benefits from an organization without supporting it. For example, we at PLF don’t need the government to force every American that benefits from our rights-guaranteeing precedents to donate to PLF. Our immensely generous supporters donate voluntarily because they believe in our mission. The same should be true for unions. If a union cannot survive without forced donations, then perhaps it shouldn’t exist.
The government’s other reason for compelled union fees is that such fees will promote peaceful negotiations between labor and management. When discussing this labor-peace defense of compelled union fees, the Supreme Court stated that “confusion and conflict . . . could arise if rival teachers’ unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer’s agreement.” This dire prediction seems plausible. But the problem with that quote is that it does not support compelled union fees. Rather, that quote supports an employer’s ability to exclusively bargain with only one union instead of bargaining with “rival teachers’ unions.” Whether the government may force workers to pay union fees is a completely different issue than whether a public employer may negotiate with only one union.
Further, the labor-peace rationale is at odds with the free-rider rationale. The labor-peace rationale assumes that employees disagree with each other over basic employment policies about which the union and employer negotiate. But the free-rider rationale denies the existence of such disagreement by assuming that a union’s collective-bargaining activity benefits all of the workers.