Tags: Supreme Court | Unions | abood | benefits | detroit

Don't Tie Reluctant, Unwilling Workers to Unions

Don't Tie Reluctant, Unwilling Workers to Unions

Tuesday, 17 April 2018 01:33 PM Current | Bio | Archive

The U.S. Supreme Court probably is going to overrule its decision in Abood v. Detroit Board Of Education,  431 U.S. 209 (1977) that government employees can be compelled to pay agency shop or "representation" fees to public employee unions.

Abood held that state employees not joining the union didn't have to pay the share of union dues used for political purposes. But it said they could be compelled to pay the portion financing negotiations with their employer. Workers who didn't pay this money, the court reasoned, would be "free riders,' enjoying union-produced benefits without helping pay the costs of negotiating those benefits."

The current case was brought by a government employee who claims that all the union's activities are political, and that the right to freedom of speech protects his right not to finance those activities. This claim is plausible, but there are more fundamental reasons the court should rule for him.

We often benefit from other people's activities, and nobody argues that we should always be compelled to help pay for these activities. A neighbor who maintains his lawn and paints his house increases my house's market value. But imagine how much it would cost government (that is to say, taxpayers) to determine how much of my neighbor's costs it should force me to pay.

At least there would be no doubt that I benefited from my neighbor's actions, though the extent of the benefit would be difficult to evaluate. The existence of any benefit is not self-evident for government employees who don't want to join the union. The union naturally claims that it benefits the workers it is required, by law, to represent. But we don't usually let people or organizations be judge in their own case. What if a worker doesn't believe that the union's efforts benefit her? What if the worker thinks that if there were no union her total compensation would equal or surpass her current compensation after subtracting her required payments to the union?

Who gets to decide whether any net benefit is produced by a particular organization with which we might be associated? The usual rule in voluntary associations is that each party decides whether the benefits of the association outweigh the costs. Voluntary associations are created by mutual consent to the exchange or transfer of inducements, with each potential party being free to decide whether the association is a good deal and either party being free to say, "no deal."

The relationship between the reluctant worker and the union in the current case is, of course, not an involuntary association. It is more like what anti-trust regulators would call an illegal "tie-in" sale. In a tie-in sale one who wishes to buy one thing is told that the seller will sell it only to people who also purchase something else that they don't want and don't want to pay for.

Here, someone a state wanted to hire and who liked the job was told that he must also agree to associate with a particular union. Along with the work the person was expected to do, the association (paying dues or agency shop fees) with the union was part of the price the employee paid for the benefits the job would provide.

Workers accept such jobs only if they think the benefits outweigh the costs and that the resulting associations with employer and union are preferable to other available employment. But if a worker feels that the union produces no net benefits, associating only with the employer would be even more attractive.

Using tie-in sales to unload something that people are otherwise unwilling to buy suggests that the product is unattractive or overpriced. Are unions so unattractive that they must get government to require its employees to join or pay substantial fees? The same reasons that tie-in sales are suspect under anti-trust law should make them suspect in labor law.

Nobody argues as a general matter that people should be required to help pay the costs of actions taken by other people that also benefit them. Those who favor making people who want government jobs pay for union activities should tell us why this ought to be an exception to the general rule.

Rather than doing this, union supporters argue (correctly) that Republicans want to end agency shop fees for government workers because unions donate a lot of money to Democrats. But a self- interested proposal is not necessarily a bad idea, and impugning the motive for a proposal often suggests that there is little to criticize in the proposal itself. I await the Court's expected decision against the union hopefully.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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Who gets to decide whether any benefit is produced by a particular organization with which we might be associated? Usually each party decides whether the benefits of the association outweigh the costs. Voluntary associations are created by mutual consent.
abood, benefits, detroit
Tuesday, 17 April 2018 01:33 PM
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