Public Unions

Do Teachers and Pharmacists Have the Right to Say No?

From mandatory union fees to health laws.


Say you come home one afternoon to discover a stranger mowing your lawn. He tells you some of your neighbors hired a landscaping company to improve property values in the area. Oh, and by the way: You owe him $75. If you don't pay, he says, then you're nothing but a lousy freeloader.

Are you? Most people probably would say no. You never asked the guy to mow your lawn. You didn't even consent to the mowing—let alone to the $75 fee. Where does he get off trying to charge you for something you never asked for?

The situation looks different, however, under a slightly altered scenario. If you move into a subdivision and sign a contract agreeing to the landscaping service, then you quite clearly consented to the mowing—so pay up.

Last week the Supreme Court heard a case exploring just this sort of question. The case involved something called agency fees, which unions—the California teachers' union, in this case—charge non-members to help support their collective-bargaining efforts. Some non-union teachers contend they should not have to pay.

The legal arguments turn on the First Amendment. The plaintiffs claim that having to pay fees to the union forces them to support political stances with which they disagree. The defendants and their supporters claim that isn't true—and besides, it's not fair to let some people get the benefits of collective bargaining for free, while other people pay for them.

Much of the media coverage of the case has framed it as a fight over unionism: If the "free riders" win, then public-sector unions could be doomed, goes the argument. The implication is that the justices should first pick the outcome they prefer, and then make up a rationale that will let them reach it later. That's a terrible way to do constitutional law—though maybe not an uncommon one.

The broader fairness question, however, has all sorts of reverberations. You could argue that a California teacher who is not a union member never consented to union representation, let alone asked for it. So why should she have to pay for it? Indeed, three years ago Justice Samuel Alito wrote an opinion for the 7-2 majority in a similar case in which he quoted labor-law professor Clyde Summers, who pointed out there is no such obligation to private associations: "If a parent-teacher association raises money for the school library, assessments are not levied on all parents. If an association of university professors has as a major function bringing pressure on universities to observe standards of tenure and academic freedom, most professors would consider it an outrage to be required to join."

One possible retort: Even teachers who don't join a union tacitly consent to union representation when they take a job as a teacher, just as someone who moves into a neighborhood with a community association explicitly consents to the association's bylaws. Don't want landscaping? Move somewhere else. Don't want to pay union fees? Find another line of work.

Similar questions have come up in another case, in which a family pharmacy has appealed the Supreme Court for the right not to dispense emergency contraception, as Washington state law requires it to do, on religious-liberty grounds. And here again, one could say: Don't want to dispense contraception? Don't become a pharmacist.

Yet that seems like an extremely callous approach. As one of the pharmacy's lawyers says, "No one should be forced out of her profession solely because of her religious beliefs." What's more, the argument could cut in all sorts of directions. Last year the Supreme Court struck down a North Carolina law requiring doctors to perform an ultrasound and describe the results to women seeking abortions. The doctors who filed suit against the state also claimed that law violated their First Amendment rights. It would be easy—but wrong—to dismiss their concerns by telling them they should find employment elsewhere, or go into another line of work.

All of these cases make us ask how far society can go to compel people to act in certain ways against their consent. And while the cases' legal reach is limited, the implications are not—because government, by definition, consists of compelling people to act in certain ways against their consent.

Almost everyone accepts the need for at least some government. And almost everyone thinks government should do at least some things, such as provide for local police and national defense. But local police and national defense raise exactly the same sort of free-rider problem that union representation does. Except for naturalized citizens, few people ever explicitly agree to be governed by the authorities. So what obliges them to obey?

Political theorists have come up with all sorts of reasons— gratitude for benefits conferred, implied consent (you haven't moved elsewhere, have you?)—all of which invite various, fairly obvious rebuttals. E.g., telling a poor black resident of Alabama that she implicitly consented to Jim Crow because she didn't move to Maine seems fallacious—at best.

Since there doesn't seem to be a satisfactory general rule allowing society to compel people to act against their own consent, perhaps it would be best to do so as rarely as possible.

This column originally appeared in the Richmond Times-Dispatch.

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  1. I’m a retired Air Traffic Controller and was a charter member of NATCA, the union that emerged several years after the PATCO strike. One did not have to be a member of PATCO or NATCA to be an Air Traffic Controller, it was purely voluntary. Further, there was a separate voluntary donation for the NATCA PAC.
    I’m sure at some places it helped your chances of successfully completing your training if you were a union member, but I don’t think that pressure was prevalent most places with NATCA, certainly not at Washington Center.
    We had our share of “free riders”, people who didn’t join because they didn’t want to pay the dues, but we also had people who had personal reasons for not joining. I’m glad we did. I wasn’t crazy about carrying the former (though I wasn’t naive enough to think that our dues would be lowered if everyone joined), but I was happy to support the later.
    NATCA is doing just fine.
    So while I agree with Mr. Hinkle that this case should be judged on principal and not on “preferred outcome”, my anecdotal experience shows that Public Sector unions can survive just fine with “Free Riders”.

    1. In some states, if the union declares itself an “agency shop”, they force non-union employees to pay dues. Full dues are taken, unless a special request was made, each year, delineating specifically what you objected to being charged for – not the general subject of “political donations” but specific amounts and uses of funds, or at least that’s how my department’s union did it. You couldn’t just say what you wanted to pay for, it had to be a specific objection to what they were doing with the money.
      Essentially it was made so onerous to pay for only the collective bargaining portion of the dues, you ended up paying for a lot of things you didn’t want.
      That’s what this suit was about and it can be blamed on the unions, who hated the idea that someone could deny them any funds, as had been determined in prior court cases, where others had filed suit over the use of dues for contributions to campaigns, candidates and political causes.
      If the unions had accepted, gracefully, that non-union employees could pay, only, for the collective bargaining portion of the union’s expenses, a suit like this might never have been filed but that’s not “the union way”, which has been about intimidation since the early days of the “labor movement”.

  2. There is also the government reforms from the nineteenth century that supporting a particular political cause cannot be a condition of employment for non-political government jobs. You could argue that signed a contract, but the contract was agreed to under illegal duress and therefore illegitimate.

  3. Send Theirronners down for a walk on he beach in Rio de Janeiro. After being mugged, rolled and held up with razor blades by minors immune from prosecution and raised in reform schools, maybe they’ll rethink building a looter society. Brazil is saddled with a Soviet Constitution cobbled together during the Reagan-Bush throttling off of black market sources of income. It deftly collapsed the US economy, the corpse of which rolled over and crushed a number of economies on the continent that once pelted Richard Nixon with stones. It’s what happens when you back a dictatorship. Its victims emulate your enemies as soon as they break loose.

    1. Is there a point you’re trying to make? Because your drivel makes no sense.

  4. Do Teachers an and Pharmacists Have the Right to Say No?

    1. Channeling Lawrence Welk.

    2. If you didnt write something, I would have. The ‘an’ is grating.

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  7. The only thing that obliges us to obey what government tells us is the simple fact that government will use force on us if we disobey. That’s it. The Social Contract is a myth, not an obligation.

    1. yeah how can where you happen to be born put an obligation on you?

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  9. “Don’t want to pay union fees? Find another line of work.”

    Which shows the problem. The union is treated as if it owns the right to be employed in that line of work.

    Unions are a great thing, but they shouldn’t be compulsory for the company. A union is basically a contract labor service. The union members should be considered employees of that service, paid by them. If the company doesn’t like that service, it should be free to find another. Or none at all, and have only direct hires.

    And it’s simply corruption to have unions for government employees contributing to political campaigns. The unions money to politicians, and the politicians give OPM to the unions.

  10. Should school teachers have fees coerced from them? Of course they should, all of their salaries are coerced from someone else!!

    “I shouldn’t be made to pay for something in which I do not agree” Is Justice for a pos school teacher? Try it as a taxpayer who doesn’t want to pay their fucking salaries and see where it gets you.

    Coercion is wrong but you couldn’t find a less sympathetic group than school teachers.

    1. Coercion is wrong but you couldn’t find a less sympathetic group than [public] school teachers.


      More importantly, I think pharmacists are easily less sympathetic, restricting the access to important drugs and driving up drug prices through their cartel. And unlike public school teachers, where you at least have the option of private schools, you do not have any options for getting your prescription drugs.

      1. black market, Canada, back alleys, make your own, homeopathy….see lot’s of options

  11. “The union is treated as if it owns the right to be employed in that line of work.”

    Indeed, the union is effectively standing between a person and their economic liberty/right of contract.

  12. Similar questions have come up in another case, in which a family pharmacy has appealed the Supreme Court for the right not to dispense emergency contraception, as Washington state law requires it to do, on religious-liberty grounds. And here again, one could say: Don’t want to dispense contraception? Don’t become a pharmacist.

    When you become a pharmacist, you join a cartel created through lobbying and legislation. That cartel limits access to drugs, keeps drug prices high, and creates high incomes for people joining it. Contraception is an excellent illustration: there is no justification for the sale of contraceptives to be restricted to pharmacies. Oral contraceptives in Europe are simply sold OTC. The only reasons are that pharmacists want the money and feminists want prescription drug coverage.

    Yes, as long as such a cartel exists, I think the least we can expect is that the people in the cartel sell all the crap that their profession has successfully lobbied to remove from the free market. If you’re a pharmacist and you don’t like selling contraceptives, talk to your lobbying organizations to make contraceptives prescription-free. But don’t join a government granted cartel, get rich on it, and then presume to tell others what products they can and cannot buy.

    1. Do you really think it is pharmacists who stand in opposition to oral contraceptives going OTC?

  13. The example of the local Pharmacy is insufficient. It is also used all over the web and doesn’t clearly establish the problem.

    How about this…

    I am a Farmer who raises pigs and harvests vegetables. If someone comes to me and asks for a job while declaring themselves a devout Jew or Muslim (because of religion can not even touch a pig) am I at fault for not even considering their job application?

    1. Better yet consider the person who goes to a Jewish fish monger looking to buy shrimp.

      That the store has to comply with health codes does not require them to violate kosher.

      1. sooo no bacon wrapped shrimp?

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