6 Comments

Re: Michigan.

I always thought that even if Kagan’s position were defensible as a matter of theory, i.e., workers give up associational/free speech rights upon the condition that the agency fees be fairly calculated and that unions uphold their end of the bargain, the devil is in the “as applied” problem. Could state workers trust that they, as non-members, would be scrupulously treated by the union in grievances? Could unions be trusted to accurately account for chargeable vs. non-chargeable (given their self-interest)? Plus, things like fraud clearly wouldn’t be chargeable and would turn union fraud into a civil rights issue.

And now we see what happened in Michigan–unions flouted the law. So how was the trust placed in them by people like Kagan at all justified?

I don’t trust that the agency fees are fairly calculated. The union has no incentive to be honest about their calculations and every year in my Hudson letter the arbitrator agrees with the union’s calculations. I have neither the money nor the expertise to do the numbers myself, and my understanding, at least here in Washington, is that if you do challenge you are not allowed to have anyone look at the books for you. It is basically you in a room full of paperwork.

That being said, the Washington Education Association immediately sent me a letter stating that they would no longer forcibly take money from me. I don’t expect them to make it easy for others to leave, but since I had already left, they apparently recognized that it was a battle not worth fighting. Might well be the first thing I’ve agreed with them on in fourteen years of teaching.

As far as states finding ways to circumvent the ruling, did anyone expect anything different? Left leaning legislators aren’t going to willingly give up the cash flow that comes from giving the public sector unions what they want during “bargaining”. There is a move afoot in Washington to make public sector union bargaining open to the public on the grounds that it is public money. That is being stridently opposed by the unions and the left.

From Volokh: “Illinois can then change its practices: It would cut the employees’ salary by $500/year, and then pay $500/year/employee, straight from state coffers, to the union as a “contract administration fee”—just as it may pay other entities that provide important services to the government (cleaning, accounting, insurance processing, etc.). The employees would still have a take-home paycheck of $49,500, as before. Illinois is still paying $50,000/employee, as before. And the union is still getting $500/employee as before (plus whatever extra dues people who join the union choose to pay, dues that could then be used for other purposes, such as political advocacy). Or if cutting the salary is too politically infeasible, or carries improper symbolism, just reduce the expected cost-of-living increases for the following year by the $500/year.”

The only way such a system could be implemented in compliance with procurement regulations is if there was a fair and open bidding for those so called “important services” provided by the union. I for one would look forward to a situation where a competing union [or non-union entity, perhaps a law firm 🙂 ] under bid the existing union. What you say, another union wouldn’t do such a thing? Why not. Union officials have to butter their bread from the dues. And in delicious irony, after all, it would be a violation of anti-trust to conspire to fix prices for these “important services”.

Also, never mind the obvious conflict of interest here. Who is paying to represent the employees in such a model? The state. That means the union would be working for the state, not the so called represented parties. “He who pays the piper calls the tune.” Although I have to admit it would be an interesting dynamic if it was the politicians who were buying off the unions, instead of the other way around.

Re: Direct payments to unions

Vox and Volokh both argue accounting gimmicks. Are they missing something?

From the Bureau of Labor Statistics:
“The union membership rate of public-sector workers (34.4 percent) continued to be more than five times higher than that of private- sector workers (6.5 percent).”
So we would let union-controlled governments make direct payments to unions so unions can lobby for more wages and benefits. It’s the polar opposite of fighting the robber barons the way they used to.

From Vox
“States also should let unions become more entrepreneurial. Unions run highly effective training programs, for example, and states could subcontract with them for their training needs. In turn, that would help unions generate income from sources other than dues and fees.”
And recruit more people into the union. And the state is the feeder system.

Vox again:
“Similarly, unions have lots of experience running benefits programs, ”
Pfft. They can’t do math. Otherwise they would realize the disaster they’ve built by demanding ever-sweeter pension benefits.

For a site that calls itself Overlawyered, there never seems to be a shortage of cases where the proprietor encourages the Supreme Court to use its Marbury v Madison privileges to rule in a way consistent with his own policy preferences. Labor management relations has been a contentious area for the legislative and executive branches for over a century. When the Court decides to step in on what had always been a matter for the democratic process to decide, be it Janus or Roe v Wade, there should be no surprise that the judiciary is viewed as nine old men, and women, using their life time appointment to force their views on society.

If that’s how the game is going to be played by both sides, I would hope that we won’t have law professors and think tank commentators going tut tut when the Senate engages in the most vicious possible behavior regarding judicial confirmations.

But hey, if the Union were held to the same Joint Employer standards the NLRB would like to apply to the various franchise models, some real good could be had. 😉

After all, Unions have (or had) a lock on labor just as if companies had subcontracted with Workforce or some othe Temp agency for their workers. Same rules should aply.