This past term, in Davenport v. Washington Educational Association, a unanimous Supreme Court rebuffed a union claim that its rights to freedom of speech were violated by a Washington state referendum which provided that unions could not use mandatory “agency shop fees” to influence elections or to operate political committees unless those payouts were “affirmatively authorized by the individual.” The union’s claim rested on the view that the Washington law impermissibly altered the balance between union powers and individual rights that had been sanctioned in earlier Supreme Court cases.
In rejecting this quixotic claim, both liberal and conservative justices blocked yet another union effort to expand their extraordinary privileges. What now remains is the harder task of cutting down the special union privileges embedded in both statutory and constitutional law.
By way of background, federal and state labor laws allow for teachers unions to represent all workers within a given school district, with or without their consent. Dissenting workers may stay out of the union, but doing so means they forfeit all say in its organizational affairs. The union, however, is still able to collect fees, through payroll deduction, from these workers to conduct its ordinary business of collective bargaining.
The common justification for this payroll tax on nonmembers is to keep nonunion workers from free-riding on the union’s collective bargaining efforts. Without that protection, workers would have an incentive to stay out of the union, which in its weakened condition will be less able to bargain effectively for its workers. Monopoly unions cannot survive without collective bargaining protections — period — and state coercion on union dues counters this risk of defection by preventing workers from competing against each other.
Modern labor law accepts these agency shop fees for economic negotiations. But simultaneously, many people resist letting unions use nonmember dues for political causes that nonmembers oppose.
That prospect is, of course, quite real, for at least some teachers decline union membership not as calculating free riders, but because of their philosophical opposition to unionization. Their free speech is violated if forced to contribute to causes that are inconsistent with their own political convictions.
Perhaps individuals are not, in this age of campaign finance laws, allowed to use their associational freedom to contribute as much to various causes as they would like. But freedom of speech is surely mocked when the law forces people to pay for political actions they oppose.
Everyone therefore accepts that nonunion members need some way to separate themselves from the union’s political activities. The standard approach lets individual workers opt out of union political representation by signing some form. Placing the burden on the worker gives the union the benefit of inertia, given that some individual workers may, for instance, forget to file the needed forms for opting out.
To protect these workers, the Washington referendum reversed the default rule: now expenditures of union dues on political causes are unlawful unless “affirmatively authorized” by the individual worker. Inertia now cuts in the opposite direction: the union has to enlist indifferent and hostile workers to use their money for its extensive political activity.
Wholly apart from any First Amendment argument, the Washington law that the Supreme Court recently upheld makes a lot of sense. Right now no worker who opts out of a union can save the expenses on collective bargaining. Since that free riding is blocked, it is highly likely that a majority of nonmembers actively oppose the union’s political agenda — otherwise, why else would they refuse to join the union?
A good default rule minimizes errors by setting the initial position to match those dominant preferences. By that neutral standard, unions should have to persuade the doubters to join their cause.
The next question is whether injecting the First Amendment into the discourse somehow upsets this accommodation to nonmembers. Justice Antonin Scalia, speaking for a unanimous court in Davenport, hit the nail right on the head when he wrote: “The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive.”
The earlier cases that allowed the union to collect dues for political purposes in the absence of explicit authorization required the union to notify individual workers so that they could opt out of political expenditures. It would be extremely odd to convert this minimum protection for nonworkers into a legal maximum of protection by manufacturing First Amendment political rights for unions. Yet the Washington Supreme Court performed this strange alchemy when it treated the money the union raised as “its own,” notwithstanding the state coercion used to place it in their coffers.
Indeed, as a matter of principle, we can go further and ask the why the union should ever have any hold over any part of the wages of nonmember workers. The free-riding objection makes sense only if collective bargaining organized by monopoly unions makes any sense.
In most markets, however, we do not condemn those individuals who opt out from some dominant organization as obnoxious free riders. Rather we welcome them as legitimate competitors who will bid down wages or prices below their previous monopoly level.
If, therefore, individual workers object to unions for any reasons, First Amendment theory should honor their stated political opposition to the union’s economic activities. Put otherwise, their associational rights should give them blanket First Amendment protection against union membership.
Accordingly, the real tragedy with dues check-off systems has been the willingness of the Supreme Court to tolerate and of states to pass laws that require local governments to deal with any monopoly union in the first place. Any revenues that these governments raise from individual citizens are held in public trust, which means that they should be spent for the benefit of the taxpayers who provided them, not the union monopoly that seeks higher wages for less work.
We would all think it outrageous if tax revenues were spent on no-bid projects to favor often-unionized firms for the construction of streets or public buildings. Why, then, introduce just that regime through the back door by refusing to allow individual teachers to undercut the standard union contract by acting independently?
The right public policy imposes an explicit prohibition on the ability of any state or local government to yield to union demands for exclusive bargaining rights. The correct solution, across the board, lets unions represent the workers who choose to join their ranks, but not those who decide to stay out.
The unions are right to predict that this regime will lead to a decimation of their ranks: Few workers will want to pay a middleman who cannot extract monopoly wages. But what is bad for the union is good for the community, which benefits from hiring more teachers under contracts with lower wages and higher productivity.
Davenport is a welcome sign that the Supreme Court is willing to dismiss extravagant claims for new union privilege. It is doubly welcome that this decision united both liberal and conservative justices in a common cause.
Much more work remains to be done, however, before all undeserved legal privileges for public unions are eradicated from the workplace. Let us hope that Davenport spurs all those who care about education — liberals and conservatives alike — to work toward stripping public unions of monopoly power.
Richard Epstein, a professor of law at the University of Chicago, is a senior fellow at the Hoover Institution.
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This is a load of right-wing crap, Professor Epstein, and so was the Supreme Court decision. Susan is so right when she wrote: Susan said: "...I have to note that Abraham Cahan would be rolling in his grave if he could see this blatant anti-union piece in his paper, one that goes well beyond even what was in the Supreme Court ruling." This decision was political and designed by these Federalist judges like Alito and Roberts to gut the collective power of the unions to counter the big corporate pockets.
It is usually out of inertia that I do not write these things, but here I have to note that Abraham Cahan would be rolling in his grave if he could see this blatant anti-union piece in his paper, one that goes well beyond even what was in the Supreme Court ruling. As a onetime union officer and occasional volunteer organizer in a "right-to-work" state, I know the challenge of "persuading the doubters to join our cause" but also the satisfaction of knowing that once people joined, few sought to drop out, not because of "inertia" but because they realized the benefits of union representation outweighed any political differences they might have with what is still essentially a democratic organization, which usually allows its members much more say-so in how its money is spent than is possible within most corporations(that may even be a de facto monopolies). I am not saying that there is not a problems with unions not listening to or truly representing their members. Both of my in-laws were public school teachers and members of an unofficial opposition group within their union. Their complaint against the union was not about the political causes it supported but the fact that its leadership was more interested in maintain a cozy relationship with the school administration than in protecting their members. Their solution (and that of their colleagues) was to seek reform and the election of a better leadership (which they accomplished) but never to simply drop out. Epstein employs somewhat backward logic in his suggestion that "few workers will want to pay a middleman who cannot extract monopoly wages" leading to a decimation in their ranks, therefore justifying no discrimation against "free riders." Obviously if the union does not represent all of the workforce, managaments will feel less obligation to bargain with them in good faith, and will be the able to divide workers against one another, ultimately to the detriment of all. In arguing that"What is bad for the union is good for the community" also seems to conveniently ignore that teachers are also members and taxpayers of their communities (indeed more so than most commentators speaking from a distance),and mos still do their best to educate children in partnership with parents and deserve decent wages and working conditions for doing so, something that history has sadly shown, can rarely be accomplished without union representation. Heaven help teachers, schools, and ultimately us all, if there are more decisions like Davenport, and if Epstein's way of thinking prevails.
The op-ed goes far beyond an exegesis of the Davenport opinion to offer an opinion of its own, one that is at odds with the innocuous presentation of the rationale for union rights in the fourth paragraph. It's surprising that a commentator who obviously holds the marketplace in such high regard should have such little regard for diversity in worker representation. Given the historic socialist viewpoint of the Forward, I would have thought such an article at least would be run with an alternative viewpoint side-by-side. It's worth remembering that, in the past, workers' voluntary efforts to unionize were met with government-backed opposition from factory owners. While we live in different times today, in which the manufacturing base of the United States has largely moved overseas, it seems distressing that we are ready to forget the lessons of the past, as this can only necessitate the same struggles being fought all over again. Certainly, this seems to have been the case with the Iraq War, in which the lessons of Vietnam were not heeded by men who doubtless consider themselves the ideological confreres of the author. One is reminded of the view that government regulation is unnecessary, because the market produces only what consumers demand, and it would be illogical for consumers to demand anything other than what is good. The Jungle by Upton Sinclair helped to change that point of view, right around the same time that unions began to make strides against the biases of those so accustomed to the enjoyment of power that they could no longer identify with the common man. I don't know who Mr. Epstein thinks these teachers are whose interests are opposed to those of the community, and find it frankly bizarre that he goes to parent-teacher conferences with the view that the teacher is a lazy hireling to be worked with on the basis of impersonal scrutiny rather than trust. Mr. Epstein seems to think that the universalization of labor-management relations is the basis on which the country ought to be run, and a sense of American belonging to be based, but I do not think that such a country is the one envisaged by most Americans, nor do I think it is one in which I would particularly like to live. Finally, just a critique of the author's reasoning: if he is willing to concede that a worker might forget to file papers to opt out of his union membership on account of inertia, then why should it be presumed that those workers who are not active members of the union are hostile and indifferent? It seems just as plausible that it is inertia on the part of potential union members that is to account for their non-membership as the "philosophical opposition to unionization" that Mr. Epstein reads into their actions.
"lower wages and higher productivity." Spoken like a true representative of the ruling class. The above formula, of course, holds no benefits at all for the "community," just for employers. It is the mantra of those who wish to return the country to the pre-New Deal era, when most working Americans managed only a precarious existence and the thin layer of the upper-crust lived high on the hog. It is class warfare cleverly disguised as an appeal to individual freedom.
When teachers get the respect and pay of law professors, then it's time to talk of undermining unions. And the reason the rich hate unions is that they want to be the only ones with anti-economic privileges, notably private property in land and natural resources.
I went to a conference on AIDS law and Richard Epstein was on a panel discussing employment discrimination. He said that not only should employers have a right to not hire people with AIDS, but they should also have a right to not hire Jews. Employers should be free to hire whomever they want, he said. Any less would be economically inefficent. If not hiring Jews is economically inefficient, they'll be punished by the free market. But we shouldn't interfere otherwise, he said.
It's time to give up, for those of us who haven't already done so. And then these same schmucks turn around and wonder why the birthrate in the Western world is an advanced state of collapse. This is inevitably what happens when mafia thugs send their children to universities - they just change their spots but their true colors are as clear as day. I suppose it hasn't occured to these dimwits that it's hard to do business when there's noone left to sell things to. Of course, then they just blame 'the left' and the convenient ethnic group de jour.
It's time to give up, for those of us who haven't already done so. And then these same schmucks turn around and wonder why the birthrate in the Western world is an advanced state of collapse. This is inevitably what happens when mafia thugs send their children to universities - they just change their spots but their true colors are as clear as day. I suppose it hasn't occured to these dimwits that it's hard to do business when there's noone left to sell things to. Of course, then they just blame 'the left' and the convenient ethnic group de jour.