Immediately after the Supreme Court’s Janus decision last June, which released government employees from the duress of paying forced union dues, union leaders began loudly to lament that they now had to suffer the duress of representing workers who do not pay dues. I agree with those union officials. They should not be coerced to represent any workers who refuse to pay union dues, but neither should any workers be coerced to pay union dues. Coerce not, that you not be coerced. The way to eliminate both types of coercion is to abolish exclusive representation in government employment.
The Janus decision declared that it is unconstitutional for unions to force government employees to pay union dues, even for collective bargaining services. In the 1977 Abood case, the Court allowed government unions to force government workers to pay union dues because otherwise some of those workers would get the benefit of union representation for free.
The Janus decision overruled Abood and created more free-riders than otherwise would exist. Union leaders across the country are calling for the Court, the Congress, or somebody, anybody to reverse Janus. Since Janus is a constitutional ruling the Congress cannot overrule it by legislation. Only a constitutional amendment, or a reverse ruling by the Court, can do that.
The proper response to unfairness against unions is not to reinstate unfairness against individual workers. Why not eliminate both kinds of unfairness? A freedom-based solution, that would do exactly that, is to eliminate exclusive representation in government employment.
Under exclusive representation, a union which is supported by a majority of the employees of a government agency – e.g. a faculty at a state university, or bureaucrats employed by a state tax collection board – represents all the employees of the agency, even those who do not support the union. Majority support is most often demonstrated by a representation election; but it can also be demonstrated by cards signed, in the presence of union organizers, by workers who (perhaps feel they must) support the union.
Unions argue that exclusive representation is simply workplace democracy. Under the Constitution, a politician elected to the House of Representatives by majority vote represents all the people in her congressional district whether they voted for her or not. So, as it is in Congress, so must it be in government employment? Not really.
Unions are not governments, not even parts of governments. A government-employee union is an organization of private people who sell their labor services to government agencies which employ them. A government-employee union is a private party doing business with the government. A private enterprise that sells computers to a government agency is not part of the government. Likewise, a government-employee union that sells labor services to a government agency is not part of the government.
Before Janus, unions supported forced dues on the basis of the free-rider problem. After Janus, unions want to avoid free riders by overturning Janus. But free-riding here is a problem only because of exclusive representation. If a union represented only its voluntary, dues-paying members it would not have to contend with free riders. Unions love exclusive representation. They fought hard to secure it, and they will fight just as hard to preserve it.
The Supreme Court had a chance to confront exclusive representation in government employment last spring in Uradnik v. Inter Faculty Organization, but it declined to take the case. Chief Justice Roberts may have thought that it was not good PR for the Court to take up exclusive representation so soon after Janus.
The arguments in Janus and Uradnik are very similar. In Janus the Court agreed that forced payment of dues is a form of coerced association. One who is forced to pay dues to a union is forced into an association with that union. The First Amendment forbids the government to force (or forbid) peaceful associations between private parties. Likewise, one who is forced to have the union, and only the union, speak for her on the terms and conditions of employment with a government agency is forced to associate with that union.
In Janus the Court agreed that since forced dues are used for political advocacy they are a form of coerced political speech. Likewise, one who is forbidden to speak for himself on the terms and conditions of his government employment, one who is forced to let a union speak for him, is denied his own free speech and coerced to accept union speech. The terms and conditions of government employment affect government spending and taxes; and, therefore, they involve political speech. The First Amendment forbids the government to coerce (or forbid) political speech.
I believe the Court will agree to take up exclusive representation sometime in the next two or three years. The Janus majority recognized that “designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers’ rights” (slip opinion, p. 17). That majority is unlikely to ignore the problem for long.