It seems likely that the Supreme Court will soon reconsider the constitutionality of compulsory agency fees for public employee unions.It also seems likely the Court will outlaw those fees. The issue is over whether a public employee may be required to pay agency fees (also called “fair share” fees) to the union that represents them, even if that employee doesn’t support the union. I propose a third way. I would allow a “conscience exemption” under which a member of the union’s bargaining unit may opt to pay either the fair share fee or an equivalent amount elsewhere.
The Terms of the Debate
For Fair Share
The argument for those who support fair share fees is that the members of a bargaining unit benefit from the union that represents them. If they decline to pay for the upkeep of the union, then they “ride free” on those who do pay. They enjoy the (usually) higher pay, job security, and on-the-job due process that union representation confers. Moreover, unions are legally barred from devoting those fee to extra-workplace activities like political lobbying.
Fair share fees are imposed only after the union in question has won a democratic contest. A union must demonstrate, either through a recognition election or a card-check arrangement, that it enjoys support from a majority of the members of the bargaining unit it claims to represent. The contract that actually implements the fair share fees must be approved by a majority of that bargaining unit. After contract approval, the union can theoretically lose its status, say, through a decertification vote or, in a card check system, if enough people end their membership in the union.
Against Fair Share
Those who oppose fair share fees dislike being compelled to pay for representation they do not want. They find that they may disagree with a union ideologically or that they may be peculiarly and individually disadvantaged by the union that represents them, even if the union benefits most other employees in the bargaining unit.
When it comes to public sector unions, opponents offer other objections. They believe that fair share fees in the public sector violate people’s freedom of association and freedom of speech. In this view, the government that imposes fair share fees compels people to pay for the upkeep of an organization they may disagree with. Opponents also claim that public sector unions are inherently political. They say that negotiations with the government over such measures as wages always implicate policymaking concerns. An increase in wages, for example, has to be paid for out of government revenues, which may require increasing taxes or de-funding some government services.
I am aware that other issues lurk in the background. The campaign against fair share can plausibly be interpreted as one salvo in a campaign to weaken and destroy public-sector unions, and perhaps all unions. Whether that’s a good or bad thing depends on who you talk to. Into that mix are added other motivations. But if we hew closely to the stated terms of the debate, the conscience exemption can serve us well, and we can leave the rest of the “union yes!” vs. “union no!” debate for another day.
Enter the Conscience Exemption
Consider: the employee could opt not to pay fair share fees. Instead, that employee would have to pay the same amount to another organization. In either event, the employee would have to pay through an automatic paycheck deduction. Invoking this exemption should be an “opt out” process. The employee would have to go out of his or her way to obtain the exemption. The process mustn’t be onerous. It could just be an online form the employee has to submit. But it should be up to the employee to initiate it.
So far, I’ve only taken the religious exemption that some (all?) union-shop states permit and have expanded it to anyone who objects to paying for a union. But in my ideal system, I’d also like to see two additional features.
First, I would be very permissive about what organizations the self-exempting employee could contribute to. I understand that under religious exemptions (at least in Sangamon), there is a pre-set list of charities an exemptee can choose from. Maybe there could be a hybrid system, with a pre-set list of charities, but the employee could petition to direct the funds to another organization. At any rate, I would prefer very wide latitude, to the extent that an employee could contribute even to an anti-union organization. My main limitation would be that the exemptee couldn’t benefit financially from the contribution.
Second, I would remove the ban against unions using dues for explicitly political purposes. Because the members of the bargaining unit do not have to pay the union, they no longer have a claim on what the union does with the money it receives. I do presume that the union itself, however, would be more cautious about how it uses its money because it would want to keep dues-paying members. But even if I’m wrong, I wouldn’t oppose union dues being spent on politics.
I realize these tweaks are tough sells. I don’t insist on them and if I can’t win support for them, or if unexpected or unwanted wrinkles appear, I’ll happily leave them aside. I’d be even willing to swap the “opt out [of union fees]” system for an “opt in [to union fees]” system, although only as a last resort. There’s wiggle room all around.
(Mostly) a Win/Win Proposition
Both sides stand to gain. The objectors will no longer be compelled to pay for what they believe is political speech. They may still have other objections, of course. They are still compelled to “associate” with the union that has won the right to represent them, and they are still compelled to pay something, even if that money needn’t go to the union. But those who won’t be satisfied by a conscience exemption would now have to clarify further what it is about their union they oppose.
Public-sector unions stand to gain, too. A conscience exemption takes away one of the strongest legal objections to fair share fees, which is that they represent compelled support for an organization the payer disagrees with.
I predict the losses to unions would be few. I find it unlikely that a union would suffer much loss of revenue at all. If it does, that’s a clear–and in my opinion healthy–signal to the union that it’s losing support and needs to change something about its practices. When a union has the requisite number of cards (in a card-check system) or when it has a contract, it can grow complacent and disinclined to listen to objections it needs to hear. Money talks.
Also–and I admit this is speculative–offering a conscience exemption can help convert a person who otherwise sees himself or herself as a sworn enemy of their union into a mere dissenter, someone who’s not satisfied, but who isn’t going to go out of their way to destroy the union. Again, that’s speculative and probably doesn’t apply to all who object to fair share fees. But why create more enemies?
We Can Find Common Ground
I’m not ready to endorse anti-union-shop laws,1 but I am ambivalent about unions, especially public-sector unions. Many of my readers here disagree with me and support unions much more robustly. You could offer some very plausible reasons why I’m wrong. I realize I won’t convince you of the intrinsic merits of the conscience exemption.
I do, however, ask you to consider the practicalities. You might believe the argument about “compelled political speech” is wrongheaded and shouldn’t get a hearing. But it is getting a hearing whether it should or not. I’m not 100% confident that Mr. Gorsuch will be the fifth vote to outlaw public-sector fair share. I’m only 90% confident. A conscience exemption is potentially a way out if the Court outlaws fair share in the pending case. Of course, it’s not just a question of courts. We still have to deal with state legislatures that could invalidate fair share altogether. But the legal argument against fair share would be harder to make if there were a conscience exemption..
And let’s also consider private-sector unions. I understand that since 1947, when the Taft-Hartley Act permitted states to outlaw union-shop contracts, the general trend has been for more and more states to outlaw those contracts, not to re-authorize them. I can’t claim conscience exemptions will demolish the types of arguments brought in favor of anti-union-shop laws for the private sector. The terms of that debate are different, and the legal/constitutional issue of “compulsory free speech” is not as pressing as when the state is the employer. But the exemption can blunt at least a little bit the anti-union-shop argument.
Those of you who support unions can agree with me on conscience exemptions. You probably won’t sign on to all my reasons. You will probably balk at permitting employees to direct money to anti-union organizations (which, again, is a position I’m willing to forgo if it’s unworkable or too unpopular). You and I will probably also part company when it comes other features of union policy. But for good and bad reasons, the political situation now is unfavorable to unions generally and to public-sector unions in particular. Conscience exemptions are a workable compromise from which opponents of fair share get some of what they want and from which unions stand to lose little and maybe will gain.
*I’ve encountered some concern that calling right-to-work laws anti-union-shop laws is Orwellian. I agree! Orwell insisted we call things by what they are and not use language that obfuscates or misleadingly contradicts what we mean. I do admit that words are slippery and that with controversial issues like unions, there’s no such thing as a “simply” neutral or objective term. Even so, calling a statute that outlaws union-shop contracts an “anti-union-shop law” is not comparable to saying “war is peace,” “freedom is slavery,” and “ignorance is strength.”
Photo credit: “Union: stuck in the sinking pattern of no return,” by ewe neon. Creative Commons License: Attribution 2.0 Generic (CC BY 2.0).
- also called “right to work” laws