How Unions Can Survive a Supreme Court Defeat

(Bloomberg View) -- This spring, the Supreme Court will decide a case with far-reaching consequences for the future of public-sector unions in America. In Janus v. AFSCME, the court is weighing whether state governments can require public employees represented by labor unions to pay the fair share of the costs of such representation. Based on the oral argument before the court this week, there’s a strong possibility that a majority of the Justices will strike down these “fair share” laws -- and in the process deal a heavy blow to organized labor and its political allies.

To avoid a fatal erosion of their funding base, public-sector unions need a new strategy. Their best bet is to allow those employees who don’t want to pay their fair share to give their money to a charity of their choosing.

Curiously, the legal fight in the Janus case isn’t focused on labor policy issues at all, but on the constitutional principle of free speech. Opponents of government unions argue that fair-share requirements infringe on the First Amendment rights of public-sector employees who object to union activities. But governments do many things that some taxpayers object to -- and yet people still have to pay their taxes. This includes such relatively minor items as funding public radio and the arts as well as major items such as mandating health insurance or maintaining an army and going to war. If objectors don’t like what government does, they’re free to vote the politicians out of office. 

The reason for the fair-share requirement is that what unions do is provide collective goods for the people they represent -- higher wages, stronger pensions, better working conditions, and a grievance procedure with integrity. These benefit all employees in the bargaining unit -- whether or not they are willing to pay for them.

Limiting the union’s services only to those who are willing to pay is as wrongheaded as allowing people to refuse to support their municipality’s fire department or police department. Common goods, whether produced by the town or the union, can’t be divided in that manner. If the town cannot collect taxes, public services will diminish in quantity and quality. The same goes for the union’s services.

What’s more, existing law already protects workers from being enlisted in union campaigns for particular candidates or policies. Employees represented by the union who decline to become members cannot be charged for activities that are not directly related to the union’s core collective bargaining and contract enforcement functions.

For critics of public-sector unions, this sort of accounting approach -- separating activities that are “germane” to the union’s core economic role from activities that advance political objectives -- does not go far enough. During oral argument, Justice Anthony Kennedy, who is likely to supply a pivotal fifth vote, said government should not be able to “mandate people that object to certain union policies to pay for the implementation of those policies against their First Amendment interests.” The point here is that everything a union does in its dealings with the public employer -- from advocating for more resources to defending employees who are being disciplined -- is political. Therefore, objectors should not have to pay for any of it. 

For labor, the implications of a negative ruling in Janus would be sweeping. If employees can obtain the benefits of union representation without paying for it, class action litigation seeking rebates of union fees will become widespread. Unions will become weaker; over time, many will likely disappear.   

It is time for unions and their supporters to consider a legal alternative to fair-share policies that would mitigate the effects of Janus and preserve the ability of unions to function as worker representatives funded by the workers themselves. 

The law already allows private-sector employees with religious scruples against supporting unions to pay the amount of their dues to a 501(c)(3) charitable organization of their choosing, rather than to the union. A similar opt-out could be broadened to include political or ideological objections to public-sector unions: employees who don’t want to pay fair-share fees can donate the money to charitable organizations instead. In many states, public-sector unions could implement such policies on their own, without legislation.

The “opt-out” approach has advantages over the fair-share requirement. Employees who truly object to union membership would still be able to follow the dictates of their conscience -- their monies would not be used to advance policies they oppose -- but there would be no free ride. As a practical matter, such claims of conscience would be separated from the desire not to pay for services rendered. The terms of the constitutional debate would also change: The issue would no longer be about freedom of speech but about the right to ride for free on the benefits unions provide.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Samuel Estreicher is a law professor at New York University and director of its Center for Labor and Employment Law. 

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