Christopher,

Thank you for responding to my question. Under the Taft-Hartley Act of 1947 closed shops are declared illegal. This means that employers cannot condition employment upon an employee joining a union. This practice unlawful practice is commonly called a closed shop, meaning that the place of employment (a shop) is closed to only employees who join the union. The 1947 Act also allowed employers and unions to bargain an agreement  in which employees had to pay an agency fee, less than union dues, for the union's work in bargaining, implanting, and enforcing a contract if they chose not to join a union. Union's must meet a duty of fair representation to all employees who are covered by a collective bargaining agreement  (CBA) without regard as to whether the employee joined the union or not. The law further stated that a state could pass a law, which came to be known as a Right to Work law, which made agency fees illegal. Thus in these states, employees covered by a CBA and  bargained and enforced by a union would get these services free because of the duty of fair representation. These individuals are commonly called free riders in that they ride for free enjoying the wages, benefits, and protection of the CBA and union without having to pay for the service rendered and enjoyed by the union. They get free what others have paid for through union dues.

My state of New Hampshire is once again considering passing a Right to Work law. The following is a letter that I sent to educators discussing the RtW law and providing some context as well as my thoughts.

I welcome yours and others thoughts and ideas on this policy issue as I continue to study and write on the topic.

Thanks,

Todd

Please specify what "protecting employee/teacher rights" amounts to, regarding this question.  Please also specify what "providing a free ride" amounts to.  "Protections" can "cut both ways,"  as I am sure you know. Beyond legitimate forms of protection, abuses can (and do) occur - but until we know where you are drawing the line, we can't say when one ends and the other begins!

William,

These are very good questions. I will respond below. I invite responses to my view.

1. RtW basically argues that without this legislation employees could  be forced to pay a fee to the union for negotiating and administering the collective bargaining agreement under which wages, benefits, and terms and conditions of employment are largely defined. See

The 1947 Taft-Hartley Act already holds that employees cannot be required to join a union (with a few exceptions). RtW does not provide a protection from being forced to join a union that does not already exist. This is an often misstated benefit of RtW, can't be forced to join a union.

Essentially, RtW means that employees do not have to pay a fee for a service that is provided by the union. It does not provide a right to work, it does not protect any rights to employment nor rights while employed separate from not paying a fee for the contract that has been bargained for all of the employees in the unit (note this unit of employees is different from union members and includes all employees who are covered by the collective bargaining agreement). Unions have the duty of fair representation for members of the bargaining unit. It cannot discriminate against non-members in the application and enforcement of the employment contract. Failure to provide fair representation is considered an unfair labor practice.

If an agency fee is bargained between labor and management or if it is required by state law, it is considered a condition of employment. As with any condition of employment failure to follow it may lead to disciplinary action including dismissal. Considered in this light, the right in RtW is not be fired or disciplined for not paying a fee because the agency fee is no longer a condition of employment. 

This right not to pay for the service provided by the union leads to the next point, a free rider. If an employee receives a benefit (a bargained contract that includes wages, benefits, and terms and conditions of employment) but does not have to pay for it while relying on others to pay for it (union members) then that employee rides for free on the financial efforts of others, their colleagues.

This issue of free riders/agency fees has been litigated in the private sector and in the public sector. In the public sector, which is what I study and teach, the Supreme Court heard Abood v. Detroit Board of Education, 431 U.S. 209 (1977). This case sought a balance between employees who do not want to pay for the political speech of their union and the efficient provision of the public service (education) given that there is an exclusive bargaining representative that the employing school must bargain in the those states that allow public sector collective bargaining. The Supreme Court articulated a compromise noting that objecting employees could be required to pay a fee to the union for the service rendered but they could not be compelled to pay for its speech, thus subsidizing the speech of the union, with which they do not agree. This compromise, the Court asserted, recognized individual rights and also prevented free riding and resulting labor unrest. The Supreme Court upheld the constitutionality of agency fees. 

I hope that this is helpful. Thanks for raising these two important clarifying questions.

Todd

http://www.nrtw.org/your-right-to-work-rights-in-three-minutes

The technicalities of your answer are illuminating, but the reality of RtW is far more truncated that the rhetoric implies!  Does your answer mean that unionized teachers don't have to pay union dues?  If that is the case, who or what covers the costs of the union?  In other fields, unions are often compulsory, but members are still expected to pay union dues.  It seems that (some) teachers are arguing that they represent a "special case" - do they want union fees put into two pots, one pot for negotiating, and the other for "propaganda?"  Then, those who do not like the propaganda would not have to contribute to that pot?  Since you argue that both teachers' rights, and free riding do occur, is you question a rhetorical one?  If union members don't want to contribute to the costs of negotiating, how will the cost of negotiating be covered?  If union members don't want to cover the costs of propaganda, how will the union cover its costs of organizing and public education?  The way to avoid "free riding" is to have a closed shop in which only teachers joining a union can get teaching jobs,  Someone is trying to have it both ways! 

William,

Union members's dues support union efforts in bargaining, implementing and enforcing the contract that they work under. Their dues also support the other activities of the union including professional development, advocacy, and political activities. Employees who choose not join a union pay an agency fee to cover the costs of bargaining, implementation, and enforcement. The union must calculate the amount of the cost of those services excluding any professional development, advocacy, or political activity. The agency fee is smaller than the union dues. This calculation must be made available to those employees who opt not to join the union. 

The RtW issue is not one of whether a union member wants to pay to support the non-bargaining activities of the union. The employee can decided not to join the union, and thus not support the non-bargaining issues, but pay for the bargaining activities.

I do not believe that the best way to avoid free riding is to establish a closed shop. Employees can vote to no longer be represented by a union, thus decertifying the union as their exclusive representative. In that case the decision making on wages, benefits, and terms and conditions of employment will revert from the bilateral decision making of bargaining to the unilateral decision making of the school board. There would be no costs for bargaining, implementation, and enforcement of the contract--there is no collective bargaining agreement--, therefore there are not any free riders because no one pays, because no service is rendered.

Should employees who receive the benefit of the work of others (the union) not pay for the benefit and instead have others pay for the service to secure the benefit? Are the ones who want to have it both ways, the ones who receive the benefits of a collectively bargained contract of the wages, benefits, and terms and conditions enforced by the union, but not pay for the service/benefits and instead have others pay for it?

If someone felt that they could benefit from the union contract without paying the fees for it, would be a mistake. The purpose of right to work legislation is to reduce the number of union workers. Therefore, reduce the amount of money going to the union. Finally, if the amount of money going to the union is reduced, the union's ability to defend and negotiate is reduced.

Thanks Don for joining the conversation. Your "starve the beast" analysis, I believe, is on target for this situation.--Todd

Don raises an interesting point - why would any teacher want to have the benefits of union negotiations BUT not pay for these benefits?  Could this be analogous to those who want to exercise their "citizenship rights" BUT don't want to accept their "citizenship responsibilities?"  Both of these types of "free riding" are typical of "consumer societies," where exercising the advantages goes hand-in-hand with shirking the responsibilities!  What needs to be made clear, is that "rights" are contingent on "responsibilities!"

Interesting proposition. I totally agree about the relationship between rights and responsibilities. I have often said that in ant English dictionary that I have ever used, the word responsibilities comes before the word rights.

Thanks.