William & Mary Bill of Rights Journal


This article deploys public choice theory and postmodem identity claims to develop a far-reaching understanding of the union dues dispute, which suggests that the burden of proof on the existence of and/or the possibility of an enduring union community should be placed on proponents of this view. While the postmodern project can be seen as an unsettled approach that is riven by coherency issues, not the least, its insistence on offering the good without the true, it supplies modest benefits by revealing the conceivably infinite varieties of human preferences in contemporary America. The absence of preference convergence, understood from the perspective of both public choice theory and postmodern identity construal, vitiates prevalent assertions that unions operate as a paradigm of voluntary cooperation characterized by solidarity. The conflict between putative solidarity and the actual presence of preference diversity might well be the genesis of this ongoing dispute. Secondly, I both consider and differ with the Ninth Circuit's recent holding in United Food and Commercial Workers v. NLRB, which enforced an NLRB order requiring dues objectors to fund union organizing expenses despite a largely contrary holding by the Supreme Court in Ellis v. Railway Clerks. I expose the Ninth Circuit's opinion to a wide-ranging perspective on both First Amendment values and freerider issues. Conventional analysis suggests that union organizing expenses, on their face, do not provide evidence of either a political or an ideological purpose, if, of course, ideologically grounded objections to collective bargaining are overlooked. Even so, a conventional analyst must concede that the legitimacy of the implication of First Amendment norms is both contingent and contextual. It is contingent on the actual purpose that organizing and consequent union revenue augmentation can be seen to serve. It is contextual in the sense that organizing can be linked to an ongoing effort to stem the degeneration in union economic power and the fear that the currently substantial political influence of unions will diminish in the future. This examination endangers the Ninth Circuit's conclusion that union expenditures aimed at organizing competing firms can be seen as germane within the meaning of the NLRA. I intend to show that union expenditures, such as organizing, that do not embrace an explicitly political purpose can nevertheless diminish the interest of workers in freedom of expression, freedom of association, and a variety of other interests that allow individual workers and subgroups of workers to define their own identities in what has become a pluralistic society. Lastly, I supply a number of proposals for clarifying judicial, NLRB, and scholarly analysis associated with the intensely fought debate over union dues. These proposals offer a clearing in a dense forest that has obscured the necessity of establishing a causal connection between contested union expenses, such as union organizing, and an actual, as opposed to an attenuated, collective bargaining purpose.