In her dissent on behalf of the four liberals in today’s Janus v. AFSCME Council 31, Justice Elena Kagan outlined the so-called free-rider problem that has been said to justify requiring public employees to pay union fees [citation to 1991 paper omitted]:
Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.
The free-rider argument is a weak one on its own terms, even if you leave aside Justice Samuel Alito’s observation for the majority that free-rider economic arguments are ordinarily not expected to override First Amendment concerns. To begin with, unions not only still exist in the U.S. states (a majority) that have enacted “right to work” laws curbing agency fees, but sometimes wield much political clout. Janus does not spell a death knell for public unions that provide their members with value.
Moreover, as Cato scholars Trevor Burrus and Reilly Stephens have pointed out, European unions have developed along somewhat different institutional lines: they rely less on models of exclusive bargaining representation and more on collective social representation and solidarity (often linked to direct involvement in provision of fringe benefits and other valued services). Far from being weakened by their departure from the “American” model of exclusive collective representation, they seem to be in many ways more formidable than are American unions.
Read more at https://www.cato.org/blog/no-janus-not-death-knell-unions
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