No, Janus Is Not A Death Knell for Unions

In her dissent on behalf of the four liberals in today’s Janus v. AFSCME Council 31, Justice Elena Kagan outlined the so-called free-rider problem that has been said to justify requiring public employees to pay union fees [citation to 1991 paper omitted]:

Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations. 

The free-rider argument is a weak one on its own terms, even if you leave aside Justice Samuel Alito’s observation for the majority that free-rider economic arguments are ordinarily not expected to override First Amendment concerns. To begin with, unions not only still exist in the U.S. states (a majority) that have enacted “right to work” laws curbing agency fees, but sometimes wield much political clout. Janus does not spell a death knell for public unions that provide their members with value. 

Moreover, as Cato scholars Trevor Burrus and Reilly Stephens have pointed out, European unions have developed along somewhat different institutional lines: they rely less on models of exclusive bargaining representation and more on collective social representation and solidarity (often linked to direct involvement in provision of fringe benefits and other valued services).  Far from being weakened by their departure from the “American” model of exclusive collective representation, they seem to be in many ways more formidable than are American unions.

Expect state and local governments that are closely allied with the political interests of unions to scramble now to enact measures meant to evade Janus. Here is a description of what just happened in California, from Joel Fox at the political site Fox and Hounds:  

SB 866 would cement union control over access to individual employee decisions on whether to continue paying union dues, should mandatory agency fees be deemed unconstitutional. …Key elements of the bill include:

  • Requiring for any school teacher, state firefighter, college professor, prison guard, environmental regulator, or any of the hundreds of other classes of state and school employees who may wish to reduce or eliminate their mandatory union dues, that they make this request exclusively to the union rather than to their employer.
  • Unions would not be required to provide the actual authorizations for dues deduction to the school board or State Controller, but instead would merely certify to the public agency’s payroll department as to who is or is not paying union dues. Public employers must rely on the unions’ representations regarding dues deductions.
  • Unions would indemnify public employers over claims made by individual employees for deductions made in reliance on union representations.
  • Employees would be prohibited from contacting their employer directly regarding union dues deductions.
  • A public employer may not send mail or email to its employees, or provide an oral presentation, about their right to join or refrain from joining a union, unless the employer facilitates delivery of similar messages from the union.
  • Government employee unions currently have access to orientation sessions for new employees. This bill would limit disclosure of the date, time and place of these sessions to the employees and unions only. Members of the public and taxpayers would be kept in the dark about meetings of public officials.

If signed by Governor Brown, the measure would take effect immediately.

The California bill was rushed through both houses in quickstep fashion as a budget trailer bill and was enrolled June 19.