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Free Riders v. Free Association

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The long-standing debate over forced unionization will renew in 2014, this time at the Supreme Court of the United States. At some point, the Court will decide the case of an Illinois mother, acting as a home care provider for her son, who was forced to join the SEIU (Service Employees International Union).

The question at hand is this:

May a State, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs?

Put another way, may a state, without violating the Constitution, force a person to join, and pay dues to, a union in this particular case? Here, the mother is forced to pay part of her son’s disability benefit to the SEIU. The son chose mom to be the home care provider, and home care providers in Illinois are essentially forced to join the SEIU and pay dues.

In short, this is the traditional free association v. free riders debate.

Ohio might very well join the discussion, too, as a right to work group waits in the wings to put a popular referendum on the ballot. Any such initiative would make Ohio a so-called “right to work” state, making unionization “opt in” instead of “opt out.

Existing law allows workers to opt out of union membership but with a catch: workers may withhold dues that pay for political activities but must still pay for the benefit of collective bargaining, often called an “agency fee.” This fee is normally 90% or more of the total dues, and often comes with little or no voting rights in union elections.

Even conservatives on the Court have ruled that the agency fees are not only okay but “necessary.” This view harkens back to the “free rider” argument, which holds that workers allowed to leave the union but who remain employed benefit from collective bargaining. Since they would not pay dues, such workers are “free riders.” The agency fees remedy this problem.

However, the other problem is the seeming violation of free association rights. While a private company and a private union are not covered by this portion of the First Amendment—since there is no government entity involved, per se—forced unionization is very much a constitutional question for workers employed by the state, as it is in the Illinois case before the Court (and with public sector workers in general). In such cases, the government would be the body forcing someone to join or contribute to a private entity, thereby violating free association rights, since individuals have the right to freely associate, or not to associate, with whomever they wish.

The key distinction in the free rider-free association struggle is that the Constitution of the United States and most state constitutions are utterly silent on the subject of free riders, but they have much to say about the freedom to associate.

For unions, this is a case of life-or-death: public sector unions make up a huge—in some states the majority—of membership. The right ruling could make life harder for organized labor to survive, as would a right-to-work amendment in Ohio. Wisconsin is case-in-point: after passing a right-to-work law, the state has seen a massive decline in union membership.

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