PUBLIC SECTOR UNION COMPULSORY FEES

THE CONSTITUTIONAL ISSUE

There is no question that forcing a public employee to join or support a labor union as a condition of continued employment violates the rights guaranteed to that employee by the Constitution of the United States.

There is some legitimate confusion about this because the U.S. Supreme Court, on several occasions, has upheld the collection of compulsory agency shop fees from public employees. But, just as the Constitutional right to free speech doesn't include the right to yell "FIRE" in a crowded theater, the Supreme Court has always recognized that "legitimate state interests" could justify the violation of an individual's Constitutional rights.

In the case of compulsory union fees, the Court ruled that the state interest in "labor peace" and avoiding "free riders" was sufficient to justify the violation of the individual public employees Constitutional right to freedom of association guaranteed by the 1st Amendment.

LABOR PEACE?

The "labor peace" rationale is a curious one. Perhaps the Court had in mind that unions might strike - deny the delivery of public services - in order to force management to agree to a contract under which the union had the privilege of confiscating a portion of the pay of employees who were not union members.

Or, perhaps the Court feared that public sector union thugs would do violence to employees who, for reasons of their own, decided not to join or support the union.

Of course, it's possible that the Court believed that a union, no matter how corrupt, incompetent or unrepresentative, which was able to exact forced fees from all employees, was less vulnerable to being challenged by another union. They do, after all, call the collection of forced dues and fees "union security." That, too, is a form of "labor peace."

No matter what the rationale, when applied to the situation of public employees, it's unlikely that the issue of "labor peace" alone would have created sufficient "legitimate state interest" to warrant the violation of employees' Constitutional rights. It's more likely that the Court threw it in as window dressing in order to avoid a close examination of the real crux of the issue, avoiding the so-called "free rider."

FREE RIDERS?

The essence of the "free rider" argument is that since all employees benefit from union representation, they should be required to pay their "fair share" of the cost of union representation. The success of this argument depends on belief in the long-standing union contention that union membership is a benefit.

UNION MONOPOLY BARGAINING

Labor relation laws make a union the exclusive representative for all employees in a bargaining unit where the majority of employees desire union representation.

These laws granting unions monopoly bargaining status deny employees who do not want union representation the right to represent themselves or to be represented by another organization of their own choosing.

Seen in this light, the so-called "free rider" is in reality a "captive passenger."

THE UNION BENEFIT MYTH

The idea that union representation is a benefit to all employees in the bargaining unit is a left-over from the bygone and discredited era of collectivist philosophy which still plagues union thinking.

There is no doubt that some employees benefit from union representation. There is as little doubt that not all employees benefit from union representation. Most employees are intelligent enough to realize whether union representation is a benefit to them or not. Public sector unions perform three distinct representation roles - political, contract negotiations and individual representation.

POLITICAL REPRESENTATION

The first and most important of these is political. In fact, some public sector union essentially political organizations. It is political activity that has raised the most concern about compulsory fee payments to public sector unions. In fact, it was to avoid forcing public employees to support union political and ideological goals that originally spurred the Court to sanction the agency fee - one that supposedly included only the cost of union representation. So far as the Court is concerned, the only legitimate expenses for which a union can charge a nonmember are for negotiation and enforcement of contracts. A careful analysis of these activities, however, should raise questions about whether they are indeed legitimate.

CONTRACT NEGOTIATIONS

Since public employers often face constraints on the total amount of money that can be allocated to personnel costs, unions do not always achieve higher compensation at the expense of the employer. Frequently, higher compensation for one group of employees is achieved at the expense of another group of employees, sometimes even at the expense of employees in the same bargaining unit.

For example, more senior employees may be more concerned with adding steps to the salary schedule while less senior employees may be concerned about increasing entry level pay. In a bargaining unit where the union's position is dominated by a majority of employees who have long job tenure, the extra steps in the seniority ladder may be achieved at the expense of increases in entry level pay. Some employees would prefer that their pay be based on their own merits and productivity rather than on subjecting it to a group decision. To these employees, one size fits all union negotiated pay scales may be perceived not as a benefit, but as an insult.

INDIVIDUAL REPRESENTATION

Unions also represent employees in adverse employment actions related to things like absenteeism, insubordination, etc. Typically, only a few employees require such representation, and their need is chronic. All other employees suffer from the few who constantly have such problems.

Employees who are bargaining unit members and who are not union members, may have decided not to join the union because they resent the union's role in defending the small minority of employees who are incompetents and chronic malcontents. For these employees, union representation may be the exact opposite of a "benefit." Requiring them to pay for it is a classic case of rubbing salt in a wound.