Do Unions Confer Net Benefits on the Workers They Represent?
As a student of public choice theory, I understand why you support SB 1241, a mandatory agency-shop bill for California State University (CSU) faculty. After all, in the words of Ambrose Bierce, “politics is a strife of interests masquerading as a contest of principles.” The California Faculty Association (CFA) supports you in the political marketplace, so it is quite natural for you to give them the power to extract more dues money from faculty. If they have more dues money, they can give more to you. I imagine from your perspective this is a virtuous circle.
I have written extensively on the issue of so-called union security. I know you understand the main argument in favor of union security—the so-called free-rider problem—but I would like to give you the other side of the story.
First, there could be no free-rider problem if it were not for the principle of exclusive representation. If we had a system of members-only bargaining (sometimes called proportional representation), the CFA would not have to bargain on my behalf. I could not receive any of the alleged benefits of their representation services, because I would be responsible for bargaining for myself or for selecting some other representative to bargain for me. In other words, the union’s free-rider problem is an artifact of the law. It is not a problem inherent in collective bargaining.
Workplace Democracy
Now, you are probably thinking that exclusive representation is simply majority rule in the workplace. It is economic democracy. After all, as I have heard many of my debate opponents say, we elect members of the legislature by majority vote. A winning candidate represents all eligible voters in his or her district notwithstanding that many voted for another candidate and many more didn’t vote at all. That is what democracy is all about. The majority rules. If it is good in politics, it must be good in unionism too. But that conclusion is a non sequitur.
Government is a natural monopoly. It has a monopoly on the legal use of force. There can be only one government at a time. Like all monopolists, governments have a tendency to abuse their monopoly power. Historically, democracy evolved as a way for the governed to have some ability to protect themselves against governmental abuse. Democracy—the mandatory submission of minorities to the will of majorities on all matters that are within the constitutional scope of governmental authority—was never intended to be imposed in the private sphere of human action. There, individual autonomy and free choice are the proper rules. Private persons are free individually to associate with private groups that use majority rule to make decisions, but they are also free not to do so.
Unions are not governments. They are private associations. (The last time I checked, civilian employees of government were still private citizens.) To impose mandatory submission of minorities to the will of majorities in private affairs by statute is to breach the constitutional wall of separation between government powers and individual rights. On this reading therefore, exclusive representation is illicit. (You cannot take refuge in the U.S. Supreme Court’s 1937 ruling in the Jones & Laughlin Steel Co. case, which upheld the National Labor Relations Act. We all know that decision was made possible by the switch of votes by Chief Justice Charles Evans Hughes and Associate Justice Owen J. Roberts in an effort to avoid Roosevelt’s court-packing plan. This was the switch in time that saved nine.)
Do you realize that the United States and Canada are the only two countries in the world with exclusive representation unionism? I have given lectures all over the world on this issue. From South Africa to New Zealand to Austria to England, audiences are appalled that America, supposedly the most free country in the world, denies to individual workers the right to designate workplace representatives of their own individual choosing.
Forced Riders
The second reason the free-rider argument is false is the problem of the forced rider. Unions claim to confer net benefits on all workers whom they represent. That is nothing but a big lie. For example, the CFA does not confer net benefits on me. To the contrary, I am much worse off having the CFA represent me than I otherwise would be. Just the psychic cost of being forced to have people with whom I have profound educational and philosophical differences speak for me far outweighs any monetary benefits they claim to have secured on my behalf. (Incidentally, I deny that the CFA has secured any monetary benefits for me.) So I suffer net harms from the CFA, and now you want to force me to pay for those net harms through so-called “fair share fees.” In economics a forced rider is a person who suffers net harms from some collective action and is forced to pay for them. There may be free riders, but there are also forced riders. Don’t you, as elected officials, have a moral responsibility to protect the rights of forced riders? We are citizens too.
It is telling that SB 1241 doesn’t even make the agency shop a subject of bargaining between the CFA and CSU. Instead, it imposes the agency shop burden by force of statute. I guess you don’t have much confidence in the CFA’s bargaining abilities. The CFA has never been able to accomplish anything without you, their political patrons, giving it special privileges under the law. That is why I have always called the CFA the Cabal of Feckless Academics.
Finally, as soon as you empower the CFA to steal money from my paycheck, I and several like-minded colleagues on many CSU campuses will, with pro bono representation, initiate legal proceedings based on the following Supreme Court decisions: Abood v. Detroit Board of Education (1977), Chicago Teachers Union v. Hudson (1986), and Lehnert v. Ferris Faculty Association (1991). These public-sector rulings guarantee that no agency fees extracted from public employees can be used for any purpose other than collective bargaining, contract administration, and grievance processing. In Lehnert, for example, your favorite type of union expenditure—lobbying—was declared to be an impermissible use of forced union fees. In that same case 90 percent of union expenditures were held to be impermissible uses of such fees. You’d better tell your union partners to keep good books. The measly 15 to 20 percent difference between union dues and agency fees you wish to write into the law will not stand up in court. And I, for one, am going to enjoy proving it.
Sincerely,
Charles W. Baird
