Friedrichs Amicus Briefs: The Problem with Free Riders

Published December 2nd, 2015 -  - 12.02.1526


In the run-up to oral argument in Friedrichs v. California Teachers Association — now set for January 11, 2016 — OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.

Two opposing views have emerged on the effect of free riders on unions’ capacity for collective bargaining and, relatedly, the state’s interest in exclusive bargaining.

The Mackinac Center for Public Policy, which bills itself as a “Michigan-based, nonprofit, nonpartisan research and educational institute advancing policies fostering free markets, limited government, personal responsibility, and respect for private property,” has filed an amicus brief in support of petitioners in which it attempts to further “test[] the theory” that “there is an inextricable link between the state interest in preserving a viable exclusive bargaining agent for public-sector workers and permitting unions to charge agency fees to non-union members.” The Center had previously submitted a brief at the certiorari stage in which it determined that “the union membership rate among workers covered by a collective bargaining agreement . . . stayed relatively constant over time, showing no signs of the endemic free-riding that would weaken unions as exclusive bargaining agents.”

The Center’s brief at the merits stage “utilizes customized cuts of the [Bureau of Labor Statistics’ Current Population Survey] data set to analyze the experience of public-sector unions and state and local government employees in the eight U.S. states that maintain a broad and stable scope of mandatory bargaining subjects for public-sector employees, impose a duty of fair representation on unions, and guarantee a right to work.” Based on this data, the Center found that “[t]he resulting union membership rates for state and local government employees covered by a union contract . . . largely mirrored those of the private sector in right-to-work states.” Accordingly, the Center concludes that “[t]hese relatively high and stable union membership rates do not suggest public-sector unions would be unable to serve as viable exclusive bargaining partners if Abood were overruled.” In other words, says the Center, “[t]he premise of Abood — that exclusive bargaining cannot exist without agency fees — is demonstrably wrong.”

On the other side of the ledger, however, is a trio of social scientists whose amici brief in support of respondents contends that “Mackinac’s measure of the incidence of free-riders is inaccurate, and grossly underestimates [free riding’s] extent.” The social scientists — who are currently housed at Harvard, Wellesley, and the University of Wisconsin-Madison, respectively — argue that Mackinac’s exclusive reliance on the Current Population Survey is fundamentally flawed, because the CPS “does not ask self-identified union members if they are covered by CBAs.” Yet “Mackinac converts this gap in CPS data into an assumption that all union members are covered by CBAs” — an assumption that the social scientists characterize as “unjustified” and “demonstrably false.” Because “artificially inflating the population of CBA-covered employees . . . proportionately depresses [Mackinac’s] estimate of the free-rider rate,” the social scientists call for the use of a different data set: the National Center for Education Statistics’ Schools and Staff Survey. Although the SASS “only covers teachers, . . . teachers are ‘modal’ for the population of employees with greatest interests here.”

Based on the SASS data — “which measures actual CBA coverage of union member teachers as well as their non-union colleagues” — the amici calculate “a much higher CBA free-riding rate than Mackinac reports.” The social scientists’ analysis further indicates “that under ‘open shop’ conditions, unions will clearly have less capacity in bargaining and services, gain less for the workers they represent, and lose significant membership as a result.” Consequently, unions’ ability to fulfill their duty of free representation will be seriously impaired.

Finally, the social scientists’ brief draws the Court’s attention to “some less obvious costs” of an “entire[ly] open-shop public education system”:

Union wage and compensation packages have positive spillover effects on non-union workers. They also contribute income to the broader community, which stimulates their economies and provides a source of government revenue. Union members, being better off economically, usually draw less on public welfare services. Finally, and most immediately, by making teaching jobs more attractive through higher wages, retaining more talented people in the profession, and — perhaps surprising to many — yielding greater disciplining and dismissal of unproductive teachers, unionization has positive effects on school quality. Making public education open-shop will reduce all these positive effects. It will not just be a blow to unions, but to education and the broader economy and society.

Again, the Mackinac Center’s brief is available here, and the social scientists’ brief is available here.

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