labor law

The Myth of Public-Sector Unions’ “Free Rider” Problem

Last month, the Supreme Court’s agreed to review Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Cato filed a brief in support of the plaintiffs). The case is a First Amendment challenge to the “agency fees” that must be paid to a public-sector union by non-members. As a matter of existing First Amendment law, no employee may be compelled to join a union or contribute money to fund a union’s direct political activities, such as political ads. In roughly 22 states (the 28 “right-to-work” states outlaw agency fees), unions may compel non-members to pay agency fees that (ostensibly) only reflect the cost of the union’s representational activities, such as bargaining over wages and working conditions. The agency fee is the product of the Supreme Court’s decision in Abood v. Detroit Board of Education (1977), in which the Court prohibited public-sector unions from compelling non-members to support political speech, but allowed for the compelled support of the union’s other “non-political” activities. 
 
The plaintiff in Janus—like the 2015 Friedrichs case that stalemated after Justice Scalia’s death (in which Cato also filed a brief)—claims that, for public employees, the distinction in Abood between “political” and “non-political” is illusory because the terms and conditions of public employment are inherently a matter of public concern. A teachers union negotiates with a school system over salaries and benefits packages, merit pay versus seniority, the standards for teacher evaluation, and the controversial “tenure” provisions that in some states make it nearly impossible to fire even serial abusers. Each of these represents a core, political issue in education policy, and a teacher who believes that, say, merit-based pay systems would improve the quality of teaching in the school system (where perhaps her own children may attend) can currently be forced to fund negotiations against it.

Against Forced Unionization

The Supreme Court has long applied exacting scrutiny to limitations placed on the freedoms of speech and association. Unfortunately, the Court has not extended such protection to those forcibly unionized.

Protecting the Rights of Workers Against Forced Association

The Labor Management Relations Act (a.k.a. the Taft-Hartley Act) was passed in 1947 in order to curb the tide of unfair labor practices that had arisen since the National Labor Relations Act (NLRA) was passed in 1935. The NLRA established a legal regime that was friendly to unions and unfriendly to the rights of workers who dissented from attempts to unionize workplaces. Unions have many tools at their disposal to ease the path to unionization, but the government should not prefer the rights of those who wish to be unionized at the expense of those who do not.

One part of Taft-Hartley, Section 302, addresses the problem of corruption between unions and employers by prohibiting employers from giving “any money or thing of value” to a union seeking to represent its employees. Martin Mulhall is a 40-year employee for the Mardi Gras greyhound racetrack and casino in Hollywood, Florida, and he opposes the efforts of Local 355 to unionize Mardi Gras’s employees. Mr. Mulhall’s desire not to be unionized is no less valid or constitutionally protected than those who push for unionization, and thus he is a perfect example of an employee for whom the Taft-Hartley Act passed to protect.

Mr. Mulhall alleges that, in violation of Section 302, Local 355 and Mardi Gras exchanged “things of value” in order to smooth the path to unionization. In exchange for the union agreeing not to picket, boycott, or strike against Mardi Gras, as well as for financially supporting a ballot initiative that legalized slot machine gambling, Mardi Gras agreed to support Local 355’s efforts to organize its employees. Specifically, Mardi Gras gave the union access to employee records and to its facilities in order to engage in organizing efforts during non-working hours. Additionally, and most crucially, Mardi Gras agreed to waive its right to a secret-ballot election supervised by the National Labor Relations Board as well as its right to contest any unfair labor practices committed by the union during the process of organizing the workers.

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