The sentence in Supreme Court’s ‘Janus’ decision that should terrify union officials

The U.S. Supreme Court ruled the First Amendment protects public employees from getting fired if they decline to financially support a union. Five million workers in 22 states can now keep their hard-earned money rather than underwrite candidates and causes they may not support. As consequential as the outcome is, a single sentence from the decision should worry labor union executives.

Justice Samuel Alito, who wrote the majority opinion in Janus v. AFSCME, said: “[T]he State may require that a union serve as exclusive bargaining agent for its employees — itself a significant impingement on associational freedoms that would not be tolerated in other contexts.”

{mosads}Alito references a monopolistic privilege government unions enjoy — exclusive representation through which a union is guaranteed a protected status. For example, if the union represents teachers in a school district, it will represent all teachers in that district, regardless of what any particular teacher desires. Individual employees there may not represent themselves or seek a different agent to supplement the union’s work. The process for workers to remove the union and install a different one is onerous. For the union, that’s a feature, not a bug.

Alito’s reference is notable for two reasons.

First, he classifies exclusive bargaining as a “significant impingement” on associational freedom. This is not a mere rhetorical flourish. The Supreme Court admitted that mandatory union fees were an impingement on workers when it ruled in Abood v. Detroit Board of Education (1977), which Janus just overturned. The court has since repeatedly described mandatory fees with the very phrase Alito used in Janus. To paint exclusive bargaining with the same brush as forced fees may portend a future constitutional review.

Second, the legitimacy of exclusive bargaining was not at issue in Janus, but Alito seems to be inviting such litigation. It wouldn’t be the first time that one dispute involving union power led to a later case that diminished it. Alito, after all, shocked court watchers and Big Labor in 2012 by questioning Abood’s legitimacy in Knox v. SEIU, a case that dealt with union political spending.

Government unions will fight to preserve monopoly bargaining, as it confers numerous benefits to them. Simple self-interest explains that a union wishes to avoid competition from other service providers. Once certified as the preferred bargaining agent for a workplace, the union secures special privileges, such as access to workers’ personal contact information and the ability to have dues automatically deducted through the government payroll system.

Unions are fond of complaining that right-to-work laws (and now, Janus) create a “free rider” problem — they must represent workers who are not paying for union services. Yet monopoly bargaining, the proximate cause of so-called free riders, is itself a product of union advocacy.

When faced with the prospect of losing the monopoly, unions back-peddle furiously. Testifying before a Michigan Senate committee in 2013, Michigan Education Association official Doug Pratt faced an unexpected question. A state senator asked Pratt: “Sometimes I’ve heard people referred to who left the union or who want to leave the union as ‘freeloader.’ … [D]o you wish to be relieved of representing those people that are opting out of the union?” After a long pause, Pratt said: “No.”

Similarly, discussing the Janus decision on national radio, National Education Association president Lily Eskelsen García endorsed union monopolies. “You need to have one exclusive representative,” she said.  

Even scholars sympathetic to union interests admit exclusive bargaining’s impact on individual employees. University of California-Davis School of Law professor Aaron Tang recently wrote: “Not every worker is going to agree with the positions and priorities taken by the union. For these workers, the system of exclusive representation may actually reduce satisfaction and lead to intra-workplace conflict.”

Case in point: in the days following the Janus ruling, New York Assemblyman Richard Gottfried, D-Manhattan, called for legislation to allow public employers to directly reimburse unions for collective bargaining costs. In this scenario, the public employees who decline union membership would suffer the insult of seeing their tax dollars support the very union they’d quit.

The Supreme Court blessed exclusive representation in 1984 and just last year declined to entertain a challenge to it. But whether through additional litigation or legislative action, this monopoly may have a shelf life.

Government unions are bracing for a loss of members after Janus. After conducting 600,000 personal interviews with its members, AFSCME estimated 15 percent would stop paying dues, with another 50 percent on the fence. The National Education Association projects a 14 percent membership decline over two years and just cut its budget by $50 million.

Eliminating exclusive bargaining would open up new competitive pressures (and opportunities) for a sector that is reevaluating its business model. The American labor movement may end up being more innovative than anyone expects.

Michael Reitz is executive vice president of the Mackinac Center for Public Policy.