Thank you both for this timely debate. As a law professor in Wisconsin, I am particularly interested in hearing Mr. DiSalvo's views on why dues checkoff for agency fees should not be permitted in the public sector.

To be honest, I am disappointed with Mr. DiSalvo's opening statement, which is filled with conclusory statements and little evidence to back them up. Just a few examples, but there are many more:

1. "The collection of 'agency fees' and union dues by government guarantees public employee unions an abundant and reliable source of money, sparing them the need to spend resources on recruitment, retention, and fundraising."

Evidence? Simply not true. Public unions, like private unions, are under an obligation to separate union dues into many different categories and file a financial report with the DOL. If Mr. DiSalvo would examine these reports, which are public records, he would see that public unions are only permitted to use agency fees for purposes germane to collective bargaining, grievance processing, and other aspects of contract administration. I would also like to see some express evidence that unions have an "abundant and reliable" source of income for these other expenses Mr. DiSalvo points to.

2. "And when it comes to getting their way in American politics, public employee unions have other advantages. First, they have automatic access to policymakers through collective bargaining—something for which other groups must fight."

Has Mr. DiSalvo ever engaged in public sector collective bargaining? It appears that he hasn't or he wouldn't be so mistaken about public union's access to politicians. First, and foremost, public unions do not negotiate with politicians, but with civil service-appointed bureaucrats. Does Mr. DiSalvo have some evidence that public unions have "automatic access" to politicians through collective bargaining?

3. "Second, given their common workplace and highly educated and experienced workforce, [public unions] can more easily mobilize for political activity than other mass membership groups."

Is Mr. DiSalvo suggesting that highly educated workforces have less protection under the law because, according to him, they can "mobilize more easily?" First, any evidence that, in fact, they have an easier time organizing? Second, has Mr. DiSalvo been following the Act 10 law in Wisconsin, which takes away both the ability to collect agency fees and the ability to bargain over almost any subject of bargaining (except for wages up to the rate of inflation? Has he considered that mobilizing in the State of Wisconsin that requires automatic recertification annually based on a 51% or more vote of the entire membership is a tad difficult even for the most high-educated, sophisticated workers?

In closing, I hope that Mr. DiSalvo does a better job of supporting his conclusory assertions with actual evidence in his coming posts. Professor Slater, on the other hand, should be commended for relying on actual legal provisions to explain why agency fees have been historically permitted by the Supreme Court and why any other alternative would lead to employee free riding.

Prof. Paul M. Secunda

I'd like to thank Professor Secunda for carefully reading Professor Slater and I's little exchange. He raises many important and relevant issues.

I'd only point out in fairness to me--and to whom would I wish to be fairer?--that we were given a strict 300 limit and no footnotes. This isn't the academy! I was trying to make a few general points that I hope will be deepened and enriched in the course of my exchange with Professor Slater. Due to space requirements, I declined to rehearse the finer points of law and economics related to agency shops and dues check-off mechanisms on the assumption that most readers were familiar with them. Professor Slater, helpfully, laid out some of those points for those readers who are not.

Let me try to answer a few of Professor Secunda many questions.

1. Revenue. Where agency shops exist most workers join unions, as those law provide a powerful incentive for them to do so. The fact that a few workers don't join hardly affects union finances, even if they all exercise their Hudson rights (which some of them don't). I assumed $1 billion in annual revenue was sufficient to qualify as abundant. (I derived this figure from the DOL reports Prof. Secunda mentions and added up the totals for AFSCME, SEIU, NEA, AFT, and a couple others in 2010). As for political spending, as I note in my forthcoming response to Joe, public employee unions have been among the biggest political spenders at all levels of government for a quarter century. (See my recent MI report on the subject for the empirical data: http://www.manhattan-institute.org/html/cr_67.htm).

2. Access. Yes, most collective bargaining negotiations are handled by career civil servants or political appointees. But elected officials and their staff often pay very close attention to them--sometimes even personally intervening. Numerous press reports as well as the work of labor historians supply ample evidence for this state of affairs. Of course, I'm a political science professor, not a public or union official, so I can't and don't claim first hand experience. In addition, given the intimate involvement of public sector unions in political campaigns and lobbying, they also have a great deal of access to politicians, sometimes even staffing their campaigns or being appointed to official posts. To go right to the top, SEIU President Andy Stern was the most frequent visitor to the White House during Obama's first few months in office. Similar examples at the state and local level abound.

3. Mobilization. Prof. Secunda misunderstands my point. It is that compared to private sector workers, public employees tend to have more education and experience. These are two factors that many political scientists have shown tend to lead to greater political activism. In addition, members of other interest groups, such as the Sierra Club or the NRA, do not share a workplace, nor benefit from "official or release time, which makes protesting easier. As to organizing in the public sector, there is much evidence that it is in fact easier. Public employee union membership has been stable at about 36% since the late 1970s, just after laws facilitating collective bargaining in the public sector were passed in many states and localities. Government never goes out of business, so unions are not forced to regroup as they do when companies go out of business in the private sector. Nor are there many stories of governments employing the harsh tactics that businesses have used to prevent unionization. No Pinkerton's need apply. Finally, I'd point out that public employees still join unions even in the 25 right-to-work states that forbid agency shops.

If Professor Secunda would like more empirical documentation than this little response, I'd be happy send him a rich bibliography to chew on.

I appreciate Professor DiSalvo's response and will "chew" on some of the information he provides.

However, I do not want to become a third participant in this debate, so I will wait until the end of it to provide some further thoughts and comments on his and Professor Slater's entries.

As usual, apologists for forced unionism minimize --- and misrepresent --- the portion of union dues expended for political purposes. Thus, Professor Slater cites Hudson for the proposition that "the union spent 95% of its dues income on matters related to collective bargaining, not politics." Of course, this was only the union's CLAIM in the notice provided to nonmembers in that case; the union was never put to its proofs in that case, which ONLY addressed the notice and procedural protections required. Hudson v. Teachers Local No. 1, 743 F.2d 1187, 1191-92 (7th Cir. 1984) ("The question here is whether the plaintiffs have a federal right to challenge a procedure that may not have resulted in any improper expenditures --- whether, in other words, even if the union has not used any of the money it has collected from objecting employees to promote political activities unrelated to its role in collective bargaining, the plaintiffs can still complain that they have been deprived of the liberty secured them by the Constitution.... We think they can....").

A much more reliable figure would be what another teachers' union --- the NEA --- could PROVE in Lehnert v. Ferris Faculty Association, 643 F.Supp. 1306, 1334 (W.D.Mich. 1986), where the provably CHARGEABLE (i.e., collective bargaining, contract administration, and grievance adjustment) expenditures amounted to approximately 10% of full union dues (i.e., 90% was NONchargeable), a figure reduced even further on appeal. 500 U.S. 507 (1991).

Even in its most recent Supreme Court case to address forced-unionism schemes, SEIU admitted in the annual notice provided to nonmembers that only 56.35% of its expenditures were made for chargeable activities. Respondent's Br. at 1 (http://sblog.s3.amazonaws.com/wp-content/uploads/2011/12/Merits-Brief-for-Respondent-FINAL-printed-version-as-filed-11-21-11.pdf).

And the so-called "free-rider problem" is one wholly of governments' and unions' creation. Unions lobby for and jealously guard the PRIVILEGE of exclusive representation (a state-granted privilege), and of course remain free to engage in members-only bargaining.

Unions (and their apologists) complaining about "free riders" is a little like buying a horse ... and then complaining about the high price of oats.

The issue that unions avoid like the plaque is: Why does the law require that non-members of a labor organization “opt-out” annually to avoid the payment of an agency fee that equals full union dues, viz, an amount that includes expenditures for non-representational and political activities in violation of the First Amendment?

Obviously, non-members object to the payment of an agency fee that equals full union dues by virtue of their decision to voluntary disassociate with the labor organization, similar to non-members of any other voluntary organization who decide to disassociate. In the latter situation, however, voluntary organizations lack the coercive power of government to force the payment of membership dues.

I was not going to join in the comments, as I've had the opportunity to say my fair share here, but the remarks of James Young -- a professional advocate for the National Right to Work Committee -- deserve a response. First, chargeable expenses are usually in the 90% range for most unions. The Hudson figures were unrebutted in that case, and the litigation in Lehnart did not in any way establish that even a majority of expenses were nonchargeable (although it was likely the position of Mr. Young's employer that they were). Even the SEIU figure he cites, which is an unusually high percentage of nonchargeable expenses, shows a majority of expenses on chargeable activities.

In many cases, the amount in dispute is much less. For example, in a more recent involving a public sector union, _Locke v. Karass_, 555 U.S. 207 (2009), the total nonchargeable expenses were only $1.34 per month per employee, and the portion of that attributable to national litigation, the only issue in the case, was “considerably less.” 555 U.S. at 212.

Thus my main point stands: unions spend at least the majority of their dues income on chargeable expenses. And objectors have the right not to be charged for politics. Indeed, Mr. Young's point (unions spend money on topics individuals should object to)is somewhat in tension with Mr. DiSalvo's point (unions act monolithically as political machines).

Again, unions do spend money on politics, but their spending is dwarfed by corporate spending, including corporate spending by anti-union front organizations such as the National Right to Work Committee. Indeed, this group is a fine example of how those who oppose union security agreements are simply anti-union, not pro-employee. The NRWC never seems to support any law actually giving rights to employees (anti-discrimination, wage and hour, health and safety, limits on right to discharge) or etc.).

As to the exclusive representative model, contrary to Mr. Young's assertion, there is a robust debate among those sympathetic to union rights as to whether the exclusive representation model is best. See, e.g., Charles Morris, _The Blue Eagle at Work_ (Cornell U. Press, 2005); Catherine Fisk & Xenia Tashlitsky, "Imagine a World Where Employers are Required to Bargain with Minority Unions," 27 _ABA Journal of Labor & Employment Law_ 1 (2011). Reasonable minds can and do differ on this issue.

As long as the exclusive representation model remains, however, the free-rider problem is very real. And is it very revealing that in all the many changes to many labor law rules the ant-union laws made in 2011, while several made agency fees illegal, none even tried to change the exclusive representative model. Again, this is because the point was not to make collective bargaining work on a different model -- the point was to cripple unions.

Oh, Professor Slater! Thank you! Thank you; thank you; THANK YOU!

Professor Slater reveals the fraudulence of his "academic" credentials in your very first sentence, with this little gem, deeming me "a professional advocate for the National Right to Work Committee." That is, of course, the kind of ad hominem attack which one doesn't expect in an academic discussion, but it might have some weight were it not a misrepresentation and rhetorical device that we see only in the most ridiculous union briefs, those filed by attorneys who have few ethics and little remaining credibility, believing that they can prevail, or at least score points, by attacking the messenger, or more accurately, the organization that would like to misrepresent as the messenger.

Of course, I am NOT "a professional advocate for the National Right to Work Committee," a 501(c)(4) lobbying organization. In fact, I have no relationship with it whatsoever, except that it happens to be in the same building, and I occasionally see some who work for it on the elevators. I'm not even a member of it.

I am employed by the National Right to Work LEGAL DEFENSE FOUNDATION, a charitable legal aid organization under Section 501(c)(3) of the Internal Revenue Code. Professor Slater's assertion can be disproven with the kind of Internet research that my eleven-year-old can perform rather handily, even if my son doesn't appreciate the fine legal distinctions that one expects from a practitioner or an "academic."

Professor Slater has no more regard for the facts when he gets beyond his effort to misrepresent my employment status. For instance, his assertion that "chargeable expenses are usually in the 90% range for most unions" is absurd, and he offers nothing --- other than his obvious ideological blinders --- to support his assertion. In 20 years of specializing in these cases, I have rarely seen a union which claims that 90% of its expenditures are "chargeable" (most unions claim 65-80%), and when I do, those are cases which I take, and win.

Likewise, while I cite chapter and verse on Lehnert --- actually, volume and page number --- Professor Slater merely offers a broad denial ("the litigation in Lehnart did not in any way establish that even a majority of expenses were nonchargeable"), as though his denial were sufficient to rebut a Federal court judgment (interesting narcissism, that). Of course, he can't even bother to spell Professor Lehnert's name correctly, so I suppose one might conclude that he didn't even bother to read the case.

Professor Slater does a little better when he gets to Locke (i.e., at least the number he cites IS in the decision) --- a case which I litigated on behalf of the nonunion employees --- but the devil is in the details he DOESN'T mention. That is, the $1.34 which he triumphantly references as "total nonchargeable expenses" actually "reflected a pro rata share of the portion of the national affiliation fee that the local believed was chargeable" (out of a total chargeable monthly fee of $9.70, which included the local's portion of the fee). And the Court made quite clear that the nonmembers' REDUCED fee --- i.e., the portion for CHARGEABLE expenditures --- was approximately 50%.

Gee, I guess that's yet another strike against Professor Slater's "vast-majority-of-union-expenditures-from-dues-income-do-not-go-to-politics" claim.

It is in this regard that Professor Slater very carefully and scrupulously AVOIDS the subject, turning FROM the issue I actually addressed --- what is generally the percentage of union dues deemed chargeable --- into "the amount in dispute," i.e., what was actually litigated before the courts. Of course, as a general matter, what is actually challenged in courts are a portion of the totals being extracted from nonmembers, not a blanket challenge to the entire fee.

Perhaps cognition that he's not actually rebutting the point I made explains his retreat from his original claim that "the vast majority of union expenditures from dues income do not go to politics" to "unions spend at least the majority of their dues income on chargeable expenses."

As for what my point is in relation to Mr. DiSalvo, I suppose that he can take care of himself. My point wasn't to rebut or sustain his points, but merely to make the point that Professor Slater begins from fraudulent premises. Sadly, I can only conclude at this point that it IS, in fact, fraudulent, since no one actually knowledgeable about the reported decisions on this issue could assert with a straight fact that "the vast majority of union expenditures from dues income do not go to politics." A majority? Perhaps. But when coupled with his disingenuous citation to Hudson without citing its limitations, it is difficult to conclude that his effort was to do anything BUT mislead about the scope of union political spending.

Of course, that is perhaps why Professor Slater returns to his main point, which is attacking the National Right to Work Committee. As to that point, I have no comment, as --- like Mr. DiSalvo --- it can look after itself.