Last Monday, the U.S. Supreme Court heard oral arguments in an important First Amendment case brought by Rebecca Friedrichs, a California school teacher challenging her state’s law that requires every teacher in most public schools to pay fees to the teachers’ union—or be fired.
Michele Jawando—the vice president of legal progress at the liberal Center for American Progress—took to these editorial pages recently to sing the praises of unions and question the merits of Ms. Friedrichs’ case. But mostly to sing the praises of unions.
Unfortunately, Ms. Jawando’s analysis was largely irrelevant to the significant constitutional rights at-issue in Friedrichs v. California Teachers Association. The essence of Ms. Jawando’s pro-union position belies a blatantly paternalistic view of the American worker that runs something like this: Unions are good for you. If you don’t want to pay for a union because you disagree with its positions or the union is bargaining against your best interest, no matter—we will use the law to make you pay for it, because we know what is best for you. For teachers like Rebecca Friedrichs, this paternalism means no voice, and no choice. Just be quiet and write your check, or be fired.
Ms. Jawando worries that if Ms. Friedrichs succeeds before the Supreme Court, then non-union workers will no longer be forced to pay for union representation in a right-to-work environment, and that, she fears, will spell doom for unions and their remaining members.
But real world experience paints a different picture. The empirical evidence emerging from many states like Michigan, Wisconsin, Indiana, and Oklahoma that have enacted right-to-work provisions demonstrates that unions can operate just fine without using the heavy hand of the state to threaten the jobs of those who choose not to pay their fees.
A recent study by my organization, The Buckeye Institute, shows the rate of growth in the unionized populations in Indiana and Oklahoma increasing after their right-to-work laws took effect. In Indiana, union membership decreased in 2009 and again in 2012, when the law was passed. But since then Indiana’s union membership growth rate is as close to the national average as it has been since 2008. The Buckeye Institute’s Tom Lampman has noted that “nothing in the data collected so far suggests that Indiana’s right-to-work law has harmed the unions’ ability to recruit or retain members.” Similarly, the growth rate of the unionized population in Oklahoma rose above the national average after the state’s right-to-work law was enacted.
But pro-union advocates would deny workers a meaningful choice about their union representation and force them to pay for the “benefits” the union negotiates because they fear the so-called “free-rider”—the employee who doesn’t join the union, but still enjoys its “benefits.” Of course, unions have actually lobbied for exclusive bargaining rights that prevent workers from negotiating for benefits that they really want on their own behalf. Indeed, in Michigan, even after right to work was enacted, the Michigan Education Association testified that it would prefer to retain exclusive representation, and did not characterize this responsibility as a disability.
By contrast, as eminent New York University law professor Richard Epstein has argued, union representation may sometimes be a burden for workers rather than a benefit. Some workers, writes Epstein, “correctly perceive that they are worse off with union representation. Thus excellent teachers often favor merit raises. They oppose seniority preferences that tie wages and job protection to years of service. They bridle under rules that give weak or incompetent teachers outsized protection against dismissal. . . . It is therefore perfectly sensible for them to prefer no union at all to one that gives them union representation free of charge.” A union, for example, which so favors seniority over merit that it negotiates for layoff decisions to be decided by a coin flip (as one Ohio union contract requires), does not “benefit” the high-performing teachers who oppose such provisions.
Whether unions provide greater benefits or unwanted burdens should be for employees to decide, free from coercion and compelled subsidy payments. When given the choice, a minority of workers opt to forego subsidizing a union. A victory for Rebecca Friedrichs won’t end unions, but it will end the forced speech for this minority that has been deprived of a voice and a choice for far too long.
