Background:
In 2018, the Supreme Court ruled in Janus that a public employee has a First
Amendment right not to pay mandatory union dues. The worker doesn’t have to
explain his or her reason.
This sets up a free rider problem. Those workers
get union benefits without paying. This includes having the union file
grievances for them and arbitrate cases—things that cost money.
The union is required to do this under
labor law. That’s because the union has a “duty of representation” and is
certified by the government as the “exclusive bargaining agent.” Think of the electoral
college. If a thin majority of votes go for George W. Bush in Florida (2000
election), then Mr. Bush gets all the electoral votes for Florida. But this overlooks
the fact that 49% didn’t vote for him. In my strained analogy, he is the “exclusive
bargaining agent” for all of Florida. (I hope you see the lame comparison!)
So now my colleagues are thinking about
this:
A worker is fired. He didn’t pay dues,
invoking his “Janus right” under the First Amendment. But the union is still on
the hook to represent him under traditional labor law.
One colleague says no. She believes that
the First Amendment also has a right of association (that is undeniably true). So,
she posits that the union has a constitutional right to associate with people
who pay dues. Interesting. I don’t think courts will buy it because unions have
this built-in duty to represent everyone, even dissenters.
Another colleague has a better theory. She
says the First Amendment has a right to NOT speak. These cases usually involve
efforts to get a person to disclose information—say, your citizenship status on
a government form.
Okay. She argues that a union still has to
represent the non-dues payer, but under the First Amendment has a right not to
speak up for the worker either by filing a grievance or by advocating for the
worker at arbitration. That is a better theory because the worker still gets benefits
of a union contract, including wages and job protections. Plus, unions turn
down requests to arbitrate by dues-payers all the time, especially when the
worker is in the wrong.
For now, the free rider problem exists for unions.
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