Guest Post: Free Riding and Friedrichs

Ben Levin is Climenko Fellow and Lecturer on Law at Harvard Law School.

Trying to read the tea leaves in oral argument questions can be a risky proposition.  But, one particular exchange during Monday’s argument in Friedrichs v. California Teachers Association between Chief Justice John Roberts and California Solicitor General Edward DuMont is worth a second read because of what it tells us about the so-called “free rider” problem and judicial assumptions about unions.

As Ben Sachs, Catherine Fisk, and others have highlighted, the central concern for unions in Friedrichs is that a decision overruling Abood could give rise to a serious free rider problem: because of the rule of exclusive representation, unions are required to represent all the workers in a given bargaining unit; but, if a union can’t compel members of the unit to pay dues, then some group of workers could act as free riders, taking advantage of the benefits won by the union, but refusing to pay their share to fund the union’s work.

About half way through oral argument, Chief Justice Roberts rejected this argument out of hand: “If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the free­ rider concern that’s been raised is ­­really insignificant.”  In other words, if employees like the benefits that unions have bargained for, then why wouldn’t an employee want to pay union dues?

DuMont responded at some length, but his disagreement was simple: “[M]any people can want something in the sense they view it as very advantageous to themselves, but if they are given a choice, they would prefer to have it for free, rather than to pay for it.”  In other words, as the old saying goes, everything tastes better when it’s free.

The exchange brought to mind a piece by Los Angeles public school teacher Phylis Hoffman.  Writing this past summer, Hoffman drew a powerful analogy – union dues are a lot like taxes.  No one wants to pay them, but if we want access to the benefits and services that they fund, then someone has to pay.  The government has the IRS.  Unions have agency-fee agreements.  If you take away the collection mechanism, then the only thing supporting the system is the altruism of some.

In many ways, taxes are distinguishable from union dues – the state and unions are constrained and empowered by very different legal regimes and serve different political function.  And, there may be reasons relating to accountability and legitimacy why it’s an imperfect system to force union members (or tax payers, for that matter) to fund efforts with which they disagree.  Indeed, concerns about accountability and member voice are why minority, or members only, unions might have some real appeal. (Although, even then, voting for a union doesn’t mean a worker would support all union decisions, much like voting for a given candidate hardly means that a voter supports every government policy.)

Nevertheless, as long as exclusive representation remains the law of the land for unions, the rule that Chief Justice Roberts suggests would not make sense, because the logic of his comment to DuMont doesn’t make sense.  Eliminating the ability to collect dues while requiring unions to represent all workers would be like requiring the government to provide services, while eliminating its ability to raise revenue.  Something would have to give.

In the union context, that something would have to be the exclusive representation requirement.  As Fisk predicts, if Abood falls, there’s reason to think that exclusive representation eventually will fall, too.  And, who knows, perhaps a shift away from exclusive representation might have its benefits.  But, it would be one thing for the Court to conclude that exclusive representation isn’t required by the NLRA (as some have suggested).  It’s another thing to preserve exclusive representation and strike down agency-fee agreements based on assumptions about people’s willingness to pay for services.

In a range of areas, scholars have critiqued the Court’s over-reliance on assumptions about facts on the ground, assumptions that too often prove wrong.  Let’s hope that Chief Justice Roberts’s flawed assumption doesn’t drive the decision in Friedrichs.