by David Kreutzer and Rachel Greszler
Last month’s Supreme Court decision in Janus v. American Federation of State, County, and Municipal Employees hit public-sector unions like a bombshell.
Now that public-sector unions can no longer extract union fees from workers who want nothing to do with them, public unions will have to work harder to provide services that will prompt workers to join their ranks.
The question explored in the Janus case was whether or not forcing non-members to pay union dues violates their First Amendment rights. That issue was addressed narrowly as a matter of free speech, but more broadly it had much to do with wrongful coercion.
Both members and non-members of public-sector unions can opt out of paying the portion of dues that explicitly goes to the union’s political activities. But, until recently, non-members could still be forced by law to pay what was called a “fair share” fee, because even non-members could receive the benefits of union representation (since unions have a monopoly on worker-employer negotiations).
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Those forced fees would not explicitly go toward political activities, but because money is fungible, they freed up union funds to be used for political purposes.
The Janus decision delivered a blow to this model. The court ruled that any negotiation with a government entity involves the union advancing a public policy position, and that therefore, any forced union dues from non-members violated their First Amendment rights.
After all, not all government employees support expanding budgets to accommodate union demands, imposing onerous rules for firing incompetent workers, or prohibiting workers’ pay from reflecting their performance. Mandated dues force these employees to support public policies that they may oppose—even policies that could directly hurt them.
For example, it is very difficult to fire incompetent or dishonest public employees. The difficulty can end up saddling hardworking and competent employees with an unfair burden because their co-workers won’t do their jobs. What’s more, union control over workers’ positions can mean harder-working and better-performing employees lose their jobs simply because they lack seniority.
Forced unionization meant that these practices were often entrenched, and unions did not have to appeal to the interests of their workers to earn their financial support.
Beyond the narrow question of free speech, this case involves serious questions about the freedom of association and freedom to contract. For instance, in his Janus opinion for the majority, Justice Samuel Alito wrote:
Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer.
Being exclusively represented by a union denies workers any alternative way of relating to their employers. The union gets a monopoly on employee-employer negotiations. Workers who might prefer a more collaborative relationship with their employer must accept the tactics of the exclusive union, even if that union might use an aggressively antagonistic bargaining strategy.
The Janus decision at least frees public employees from having to pay for representation they don’t like, and this should drive unions to provide higher quality services for employees.
It may also help crack down on union corruption. The National Legal and Policy Center’s Union Corruption Update documents the continuous stream of union officials’ convictions for fraud and other abuses.
Now, thanks to the Janus ruling, if union affiliates of the National Education Association, like Montana Teachers Local 6105, have treasurers that embezzle the union’s money, teachers can choose to stop paying hundreds of dollars a year to corrupt officials.
As consumers, we take it for granted that we are free to not give our support to opposing views or corrupt organizations. All employees, both private and public, deserve this freedom. They should be able to choose representation that is honest, responsive, and meets the criteria that the workers choose themselves.
The Janus decision was an important win for public employees. But some private-sector workers in the 22 states that do not have right-to-work laws can still be forced to pay for representation they do not want.
Hopefully, the next win for workers’ freedom will be an end to exclusive representation.
Unions are right that they should not have to represent workers who don’t pay union fees. But in turn, unions should not have exclusive rights to represent workers. Instead, individual workers and alternative bargaining units should be allowed to negotiate directly with employers. This freedom will ultimately serve the interests of workers best.
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David Kreutzer is the senior research fellow in labor markets and trade at The Heritage Foundation’s Center for Data Analysis. Read his research. Rachel Greszler is a senior policy analyst in economics and entitlements at The Heritage Foundation’s Center for Data Analysis. Read her research.
