Viewpoint: Any Janus Solution That Ignores Free Riders Is Star-Crossed and Unfair
Chris Brooks has written an important critique of the direct reimbursement proposal that I and others have suggested as a way for progressive states to neutralize the Supreme Court’s ruling in Janus v. AFSCME. I’m writing this response to clarify some misperceptions that I think may be at the root of his argument and to suggest that we agree in the end on the critical role of union organizing.
In its most basic form, the direct reimbursement proposal would require public employers to reimburse unions for all of their bargaining-related costs—the same costs that could previously be charged to all workers in a fair share fee. Brooks’s concerns are three-fold: direct reimbursement would turn unions into a puppet of management; it would leave unions unprepared to collect dues if reimbursement were to go away; and it would weaken a union’s responsiveness to the workers it represents.
Starting with the first concern, I completely agree that unions must retain independence from the employers against whom they negotiate. That’s why the direct reimbursement approach would make reimbursement a mechanical process free of employer-interference. Just like the process used before Janus to calculate agency fees, unions would set their budgets with member approval, calculate their bargaining-related expenses, and submit them to the employer. The employer would then be required by law to reimburse those expenses. The employer could not threaten to reduce the reimbursement amount as a way of threatening the union, just as employers had no power to threaten to reduce agency fees charged before Janus.
Still, Brooks quotes Cornell Professor Kate Bronfenbrenner, who worries that “what the employer gives out, it can take away.” I take this to mean that a hostile employer could threaten to eliminate a reimbursement clause from a future bargaining agreement to extract some concession on worker wages or benefits. But that was equally true of fair share clauses, too: in all but a few states, employers could (and sometimes did) threaten to eliminate them in exchange for other cuts. The defense against that tactic has been to sue, alleging a violation of the state law duty to engage in good faith bargaining. But of course that defense would apply equally to reimbursement clauses. So if Brooks and Bronfenbrenner are worried about employers threatening to renege on a reimbursement clause in a future contract, they need to explain why that same worry didn’t undermine the fair share system that operated before Janus.
In any case, their legitimate concerns can be addressed through legislative drafting. State law should be amended to give workers the choice whether to require public employers to reimburse their unions via a majority vote. That would eliminate the employer’s coercive influence over reimbursement clauses in future contracts. California’s law governing local public employee organizations included such a provision for fair share clauses, and incorporating it into the reimbursement arena would make good sense.
STILL DO DUES
As to Brooks’s second concern regarding member dues, he misunderstands what I am suggesting. (In fairness to him, my take on member dues is on pages 73-74 of this full-length article, so he’s not the only one to miss it.) Even in my approach, unions would continue to collect member dues. Those dues would be needed to fund the union’s day-to-day expenses on negotiations, contract administration, and grievance proceedings. Then, when the employer reimburses the union for those costs at the end of the year, the union would rebate the pro rata portion of that reimbursement back to each member. The implication should be clear: to the extent unions are fighting for reimbursement for bargaining-related expenses, what they are really fighting for is reimbursement of each member’s costs of sustaining a bargaining representative. Direct union reimbursement, in other words, is really union member reimbursement.
That brings me to Brooks’s third concern: that direct reimbursement will cut workers out of the equation. I hope the foregoing makes clearer that I don’t envision that at all. The whole proposal depends on keeping union members in the drivers’ seat, from choosing whether their union should accept reimbursement in the first place to making the real destination of the employer’s reimbursement a check that is sent to each member to recoup her dues.
So what, then, is the reimbursement workaround really about? It’s about financing unions in a way that overcomes the free-rider problem. For what Brooks doesn’t mention is that any solution that depends solely on organizing workers as a way to stem losses in voluntary membership remains an approach that gives free riders a better deal than union members: the free riders get all the benefits of the contract without any of the costs of securing it. As long as that is the case, organizing—as crucial as it is—will face a stiff headwind. (Incidentally, Brooks also doesn’t mention that the reimbursement approach enriches all workers through a federal tax cut worth $200 for a single worker earning $50,000 per year.)
The direct reimbursement approach solves the free-rider problem. Here’s how: After Janus, free riders receive union benefits without paying for the costs of collective bargaining; those costs are instead shouldered by union members alone. But under the reimbursement approach, members would receive the same union benefits and get refunded for their costs of supporting the union. The result would be to restore a basic sense of fairness for members and non-members alike.
In that sense, the greatest irony in Mr. Brooks’s analysis is that the task he (correctly) deems fundamental to fighting back against Janus—member organizing—is actually advanced by the reimbursement model. For the greatest selling point of the reimbursement workaround may be its ability to strengthen the hand of union organizers.
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After all, from the union organizer’s standpoint, which of the following pitches is an easier sell? Without reimbursement, the argument is to join the union and pay dues—perhaps around $1,000 per year—because even though one can get the benefits of membership without paying a penny, paying voluntarily is the right thing to do. With reimbursement, the argument is more attractive: join the union and pay only the political portion of member dues—likely closer to $200 a year, because the union has fought for a clause guaranteeing reimbursement of each member’s bargaining-related costs—because it’s the right thing to do.
The space between Brooks and me is thus much smaller than he thinks. We both agree that unions must “get down to the hard work of organizing.” I just think there are ways for progressive lawmakers to help lighten the load.
Aaron Tang is a law professor at the University of California, Davis.