Professor Epstein to SCOTUS: Set the Workers Free

by Robert Alt

Professor Richard Epstein offers a whirlwind tour of labor law in an article cutting to the heart of the free-rider issue in Friedrichs v. California Teachers Association, one of the most important cases that the Supreme Court is slated to hear this term. 

By way of background, California teacher Rebecca Friedrichs brought the lawsuit challenging a state law requiring teachers in most of California’s public schools to contribute financially to the local teachers’ union in order to subsidize the union’s collective bargaining. 

Among the issues the Supreme Court will consider when it hears oral arguments next Monday is whether Abood v. Detroit Bd. of Education, a 1977 case that upheld the ability of public-sector unions to charge non-union members a mandatory fee—a so-called “agency fee”—to defray the costs of contract negotiation and grievance administration related to collective bargaining, should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.  If the Court overrules Abood, the likely effect would be to end mandatory agency fees for all state level public-sector employees across the country.  Teachers and other state public employees could then no longer be fired—as they currently can be—for refusing to pay union dues or agency fees.

Epstein begins by scrutinizing the core concern of Abood—namely the “free-rider” effect—which assumes that if individuals refuse to pay for union services but are covered by a union’s collective bargaining contracts, then they fail to pay for the benefits that they derive from the union’s efforts.  As Epstein notes, this theory has drawn support from some conservatives on the Court like Justice Scalia, who in Lehnert v. Ferris Faculty Association argued that mandatory dues “compensate the union for benefits which ‘necessarily’—that is, by law—accrue to the nonmembers.”

But Epstein recognizes a fatal flaw in this argument:

A key assumption of modern labor laws relates to the supposed internal cohesion of union membership. Thus the free-rider argument takes as its implicit premise that union workers are not heterogeneous in their preferences, but in fact share the same views on all negotiating issues. Given that strong, but wrong, assumption, the free-rider argument makes sense.

The problem is that public employees disagree, even on matters for which the union is engaging in collective bargaining putatively on their behalf.  And in the context of public-sector unions, these issues are necessarily ones of public concern, insofar as they involve questions of the public fisc, or of how to run government provided services, like schools.

Not surprisingly, then, Epstein notes that some teachers

correctly perceive that they are worse off with union representation. Thus excellent teachers often favor merit raises. They oppose seniority preferences that tie wages and job protection to years of service. They bridle under rules that give weak or incompetent teachers outsized protection against dismissal. . . . . It is therefore perfectly sensible for them to prefer no union at all to one that gives them union representation free of charge.

Far from free-riding in such cases, union representation, even free of charge, is a burden.  And this is the case of Rebecca Friedrichs, her co-plaintiffs, and a minority of teachers and public employees across the country, who disagree with the positions taken by their unions in collective bargaining, but are nonetheless forced to subsidize it or face the real threat of losing their jobs.

Given that agency shops force public-sector employees to subsidize speech with which they disagree, and to advocate positions that very well may make them worse off than if they were not represented at all, Professor Epstein offers a simple prescription: “[W]hat the Court should do, and do unanimously, is set dissenting workers free from union domination by striking down all agency shop provisions.”

I will offer some additional thoughts of my own on Friedrichs in the coming days.

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