Maddy Joseph is a student at Harvard Law School.
A group of over two dozen economists and law and economics professors filed an amicus in Janus in support of the respondents. The brief argues that “decades if not centuries of economic theory and empirical evidence” establish that many who pay agency fees are not union objectors but free riders.
The brief draws first on Mancur Olson’s work on the rationality of free riders:
As Mancur Olson has demonstrated, a rational employee motivated solely by economic self-interest will withhold union dues or fair-share fees if he can do so without incurring countervailing costs–even if he benefits from the union, believes he benefits, and agrees with the union’s actions on his behalf–because his fees “alone would not perceptibly strengthen the union, and since he would get the benefits of any union achievements whether or not he supported the union.”
Free riding, as the brief puts it, simply “follows from individual economic self-interest in the context of collective goods” like those provided by unions, “even when everyone agrees they benefit from those goods.” The brief gives examples like taxes (even for basics like national defense), NATO dues, and vaccinations.
Economic theory and empirical research continue to refine Olson’s analysis, the brief notes. Recent research has highlighted how free riding can spiral: even if some members pay union dues because they are inclined to act cooperatively rather than self-interestedly, other members’ free riding eventually becomes “contagious,” and those inclined toward cooperative behavior begin to copy the free riders.
The brief also discusses recent empirical evidence on union free riders. It highlights that studies comparing union membership in right to work (RTW) states and union security states have found not only that union membership rates are considerably lower in RTW states but also that underlying opposition to unions does not on its own explain the difference. This challenges Janus’s contention that everyone who pays an agency fee is an ideological objector, or a “forced rider.”
The brief also points to results from Iowa’s recent recertification elections to refute this forced rider argument and to undermine Janus’s argument that RTW would not have a significant impact on union membership and funds. In Iowa, public sector unions now must be recertified before each new contract negotiation, and recertification requires not just a majority of those voting but a majority of those covered by the collective bargaining agreement. Here’s what happened, according to the brief:
The election results for AFSCME Iowa Council 61 show that eighty-three percent of all employees covered by the union’s collective bargaining agreements affirmatively voted to recertify the union. Only fifteen percent failed to vote. And only two percent voted against the union. Yet seventy-one percent of the employees are free riders, in the sense that they are covered by union agreements but are not members of the union, and do not pay fair-share fees because Iowa is an RTW state.
The brief, which was submitted on behalf of the economists and law professors by Keker, Van Nest, and Peters, can be found here.
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November 21
The “Big Three” record labels make a deal with an AI music streaming startup; 30 stores join the now week-old Starbucks Workers United strike; and the Mine Safety and Health Administration draws scrutiny over a recent worker death.
November 20
Law professors file brief in Slaughter; New York appeals court hears arguments about blog post firing; Senate committee delays consideration of NLRB nominee.
November 19
A federal judge blocks the Trump administration’s efforts to cancel the collective bargaining rights of workers at the U.S. Agency for Global Media; Representative Jared Golden secures 218 signatures for a bill that would repeal a Trump administration executive order stripping federal workers of their collective bargaining rights; and Dallas residents sue the City of Dallas in hopes of declaring hundreds of ordinances that ban bias against LGBTQ+ individuals void.
November 18
A federal judge pressed DOJ lawyers to define “illegal” DEI programs; Peco Foods prevails in ERISA challenge over 401(k) forfeitures; D.C. court restores collective bargaining rights for Voice of America workers; Rep. Jared Golden secures House vote on restoring federal workers' union rights.
November 17
Justices receive petition to resolve FLSA circuit split, vaccine religious discrimination plaintiffs lose ground, and NJ sues Amazon over misclassification.
November 16
Boeing workers in St. Louis end a 102-day strike, unionized Starbucks baristas launch a new strike, and Illinois seeks to expand protections for immigrant workers