A Response to Justice Kagan: Ending Agency Fees Won’t End Unions (Part 2)

by Robert Alt

In my previous post, I began my response to Justice Kagan’s dissent from Harris v. Quinn arguing that eliminating mandatory agency fees—by which employment is conditioned upon a worker paying a fee to the union for collective bargaining expenses, even if he or she disagrees with the positions advanced by the union—would prove devastating to unions and their ability to represent and bargain on behalf of their members.

A closer look at available data from several states that have recently adopted the right-to-work model does not support Justice Kagan’s concern.  Evidence from Wisconsin, Michigan, Indiana, and Oklahoma provide a clearer view of what happens to unions in right-to-work states, and should assuage any worries that public-sector unions will simply dissolve in a post-Abood environment.

In 2011, Wisconsin significantly changed its public-sector collective bargaining regime and enacted a right-to-work law for public-sector employees.  (Wis. Stat. § 111.82.)  Since then, from 2011 to 2014, Wisconsin’s public-sector unions have lost members—nearly 60,000 members, in fact.  But even with this drop in overall membership, the membership rate among state and local government workers covered by collective bargaining agreements has remained over 90%.  Thus, whatever the cause may be for the drop in Wisconsin’s public-sector union membership, the state’s experience so far does not support the Harris dissent’s theory that agency fees are required in order to support the union’s collective bargaining efforts.

Michigan’s public-sector right-to-work law took effect in early 2013.  (Mich. Pub. Act 349.)  In September 2014, the Michigan Education Association (MEA), the state’s largest public-sector union, boasted that despite the state’s new right-to-work rules more than 95% of its members stayed, with less than 5,000 of its roughly 110,000 active members leaving the union.  Data from 2012 to 2014 shows that MEA membership declined about 8%—somewhat more than the union claimed—but the difference may be attributable to a broader, long-term decline in union membership and not easily traced to the states’ new right-to-work provisions.  Of course, even an 8% decline means that more than 90% of MEA’s membership chose to remain in the union—a far cry from the death-spiral that Justice Kagan’s dissent prophesied in Harris

Moreover, as in Wisconsin, a state-wide view of Michigan’s state and local government employees covered by collective bargaining agreements does not show a precipitous drop in public-sector union membership or a rise of the dreaded “free-riders” among government employees.  From 2000 to 2014, public-sector union membership rates hovered between 95% and 98%.  After right-to-work was enacted in 2013, those rates remained relatively consistent at 97.1% in 2013, and 95.7% in 2014.  

Even if “free-riding” among represented non-payers were to rise, it is not clear that union leaders share Justice Kagan’s view that it would be a detriment and “disability” to the union.  As the Mackinac Center detailed in its amicus brief with the Court in Friedrichs:

In 2013, Doug Pratt, the MEA’s director of member and political engagement, was asked [hypothetically] during a Michigan Senate hearing . . . whether the MEA would like to be relieved of the duty of representing those who opted out of the union.  Pratt indicated the MEA would prefer to retain exclusive representation . . . . and did not characterize fair representation as a disability. . . . 

(Brief of Amicus Curiae Mackinac Center for Public Policy in Support of Petitioners, 26-27). 

Indiana and Oklahoma also provide recent examples of states that have not seen their union rolls suffer in new right-to-work environments.  A recent study by my organization, The Buckeye Institute, demonstrates that both Indiana and Oklahoma saw the rate of growth in their unionized populations increase after the right-to-work laws took effect.  In Indiana, union membership decreased in 2009 and again in 2012, when the law was passed.  But it has since recovered and risen to a level putting Indiana’s union membership growth rate as close to the national average as it has been since 2008.  According to The Buckeye Institute’s Diehl Fellow, Tom Lampman, “nothing in the data collected so far suggests that Indiana’s right-to-work law has harmed the unions’ ability to recruit or retain members.” Similarly, the growth rate of the unionized population in Oklahoma rose above the national average after the state’s right-to-work law was enacted.  Data from both of theses states suggest that Justice Kagan’s theoretical fears are likely overblown.

Should the Court overrule the anomalous Abood later this year, the doom-and-gloom for public-sector unions forecast by the Harris dissent seems unfounded.  On the contrary, empirical data at the national and state levels shows that even when workers are not compelled to pay agency fees, a substantial and stable percentage of them remain in the union.  Even in the right-to-work environment it seems, public-sector unions still succeed as the exclusive bargaining agents with the state and continue to keep the “labor peace”—Justice Kagan’s handwringing notwithstanding.

What difference would abandoning Abood make then?  It would provide relief for the minority of union members and agency-fee payers whose First Amendment rights are infringed by compelled speech and association.  As Professor Epstein persuasively has argued, some public employees “correctly perceive that they are worse off with union representation.”  And some employees, like Rebecca Friedrichs, object to the inherently political positions taken by the unions in collective bargaining on issues such as the union’s preference for seniority instead of merit in matters of pay and job security.  For these employees, admittedly a minority, ending Abood would not put an end to their unions, but it would put an end to the violation of their First Amendment rights.

Bench Memos

NRO’s home for judicial news and analysis.