One book that every citizen who is interested in debating the question of voluntary versus compulsory union membership ought to review and ponder is Dr. Sheldon Leader’s Freedom of Association: A Study in Labor Law and Political Theory.
Leader is a legal scholar who lectures at the University of Essex in the United Kingdom and at the University of Paris-Ouest in France. He has also taught at a number of universities in the U.S., and specializes in American as well English labor law.
No one can accuse this scholar of harboring a bias in favor of Right to Work laws. In fact, Freedom of Association, published in 1992, argues at great length in defense, as one reviewer explained, of “giving priority to the union’s right to compel association over the individual’s right to dissociate.”
What makes the book valuable is that it freely acknowledges important facts related to monopolistic unionism that the vast majority of Big Labor apologists suppress or overlook. On page 175, for example, Leader wrote:
“[T]here are sometimes fundamental and not just occasional divisions of interest” within groups of employees “covered by a particular collective bargain and its attendant representative institutions.”
Practically speaking, what this means is that what certain employees who are subject to a union monopoly-bargaining agreement may sincerely regard as a benefit, others may with equal sincerity regard as a detriment.
What Leader went on to call “fundamental differences of interest” that “embrace skills, age, handicaps,” and many other issues as well as the “well-recognized categories of race and sex” are perhaps especially sharp among the teachers employed in a school district.
Take, for example, efforts by teacher union officials to reduce class size through the bargaining process or political activism. Officers of the mammoth National Education Association (NEA) and American Federation of Teachers (AFT) unions routinely push for smaller class sizes at the negotiation table and in legislative hallways. Resolution B-11, adopted by the 2014-2015 NEA Representative Assembly, states, in part: “The National Education Association believes that excellence in education may best be attained by small class size.”
Some teachers undoubtedly regard smaller class size as a benefit for themselves. As economist Eric Hanushek and education specialist Javier Luque wrote in a paper they coauthored in 2000:
Most experts agree that smaller classes reduce the teacher’s workload. Fewer students means fewer papers to correct, fewer tests to grade, and fewer discipline problems. Smaller classes indeed might provide teachers with increased personal satisfaction in their jobs.
On the other hand, as Drs. Hanushek and Luque also noted, the survey data they had reviewed indicated class size “is not the most important issue for the majority of teachers.”
Moreover, since the resources available for K-12 public education are not infinite, reductions in class size almost inevitably entail lower average salaries for teachers than would have been the case if class sizes had remained stable. Conversely, increases in class size are associated with higher salaries. Hanushek and Luque summarized their calculations:
This study found that an increase of one student generally increases teacher salaries between 0.9 and 1.2 percent. . . . This effect is found to be statistically significant in some, but not all, of the empirical specifications and for some, but not all, points on the salary schedule.
As Leader would recognize, a teacher who opposes additional reductions in class size because such reductions will reduce the resources available for salary increases and doesn’t want to join or pay dues to a pro-class size reduction union as a consequence, is no “free rider.”
Differences of opinion about what’s best for similarly situated employees are common and understandable. And this is one reason why public policies authorizing the termination of employees for refusal to join or bankroll a recognized union are unjust.
Unfortunately, in considering the constitutionality of public-sector forced union dues and fees in Abood v. Detroit Board of Education nearly 40 years ago, the U.S. Supreme Court seemed to be totally unaware of the fact that there are “fundamental differences of interest” among employees in the same bargaining unit. And ignoring this undeniable fact undoubtedly made it easier for Justice Potter Stewart, the author of the majority opinion, and his colleagues to find that forced dues for public employees do not violate the First Amendment.
In the upcoming Supreme Court session, the High Court will be revisiting the Abood question in Friedrichs v. California Teachers Association. And this time, the justices are not likely to overlook the obvious fact that what one employee regards as a “benefit” another may just as reasonably regard as a “detriment.”
Diehard apologists for compulsory unionism like California law professor Catherine Fisk won’t have any of this. In a recent commentary for the Scotus Blog (see the link below), she mechanically repeats the cliche that, under state monopoly-bargaining laws, unions are “required to fairly represent” all employees in the bargaining unit, and ignores the glaring fact that many employees have good reason to believe they are made economically worse off as a consequence of this “fair” representation.
Fisk and other cheerleaders for the status quo hope they can sway the Supreme Court to reaffirm Abood by deprecating the motives of employees who don’t want a union. But it is unlikely teacher union lawyers will get away with that. If they’re going to prevail, they’re going to have to explain to the High Court why teachers who have “fundamental differences of interest” with a union should have to support it financially anyway.