As the US Supreme Court is considering the case of Janus v. AFSCME on mandatory deductions for the purposes of union negotiations, I think it is time to truly question the argument underlying mandatory deductions: free-riding. Normally, the argument is that union members fight hard to get advantageous conditions. After taking the risks associated with striking and expending resources to this end, non-members could simply get the job and the benefits associated with prior negotiations and not contribute to the “public good” of negotiation. This is an often-used argument. I come from Quebec in Canada where closed shop unionism (i.e. you are forced to join the union to get the job) still exists and mandatory dues are more stringently enforced than in the United States. There, one of the most repeated defense of the closed shop system and of the mandatory dues is the free-riding argument. As such, the free-riding argument is an often-used communication line.
That is, in essence, the free-riding argument. While it appears axiomatically true, I do not believe that it is actually a relevant problem. However, before I proceed, let me state that I have a prior in favor of consent and I only sign off on “forcing” people when the case is clear and clean-cut (I am what you could call a radical “contractarian”).
So, is free-riding a problem? The answer is in the negative (in my opinion) as the free-riding argument entails that unionism provides a public good. One of the main feature of a public good is an inability to exclude non-payers. Think about the often-used example of lighthouses in public economics: the lighthouse provides a light that everyone can see and yet the owner of the lighthouse would have a very hard time to collect dues (although Ronald Coase in 1974 and Rosolino Candela and myself more recently have emitted doubts about the example). However, why would a union be unable to exclude? After all, it is very easy to contractually “pre-exclude” non-payers. A non-member could obtain only 50% or 75% or 80% of the benefits negotiated of the union. Only upon joining would he be able to acquire the full benefits of the union.
As such, “excludability” is feasible. In fact, there are precedents that could serve as a framework for using this exclusion mechanism. Consider the example of “orphan clauses” which were very popular in my neck of the wood in the 1990s and early 2000s. Basically, these clauses “create differences in treatment, based solely on the hiring date, in some of the employment conditions of workers who perform the same tasks“. These existed for police forces, firefighters and other public sector workers. Now, this was a political tool for placating older union members while controlling public spending. As such, it is not an example of exclusion for negotiation purposes. Nevertheless, such contracts could switch the “date of employment” for the “union status” in determining differences in treatment.
Another mechanism for exclusion is social ostracism. This may seem callous, but social ostracism is actually well rooted in evolutionary psychology. It also works really well in contexts of continuous dealings (see also this example by Avner Greif which has been the object of debates with Sheilagh Ogilvie and Jessica Goldberg) Workplace relations between workers are continuous relations and shirkers can be ostracized easily. The best example is the “water dispenser gossip” where co-workers will spread rumors about other workers and their behavior. All that is needed is an individual marginally inclined towards the union (who could even get special treatment from the union for being the ostracism-producer) who will generate the ostracism. As such, the free-riding argument has a solution in that second channel.
In fact, ostracism and contractual exclusion can be combined as they are in no way mutually exclusive. These two channels are the reason why I do not adhere to the “free-riding” argument as valid justification of compulsory payment for financing unions.