Freeloaders And Free Riders

Written on 05/13/2022
Will Aitchison

Erik Gagne and Barry Wallett are li­quor control agents for the State of Con­necticut. Their union issues a quarterly newsletter to its members, and its 2018 spring and winter newsletters contained the following quote from Cynthia Dill, a State Senator: “Choosing to work where there is a union and getting the related benefits of higher wages and collective bargaining, but not paying a fair share of the costs of representation, would be freeloading right?”

Shortly afterwards, the United State Supreme Court issued Janus v. AFSCME, Council 31, finding that “fair share” clauses in public sector collective bargain­ing agreements were illegal. Gagne and Wallett then stopped paying union dues.

By 2019, the Dill quote was still posted on a bulletin board in Gagne’s and Wallett’s work area, on the bulletin board designated for union use only. Gagne and Wallett complained to their supervisors that they found the term “freeloading” derogatory and objectionable. Over time, they contended that the posting of the quote on the bulletin board created a hostile work environment and “bothered them a great deal.”

When the State refused to require the Union to remove the Dill quote from the bulletin board, Gagne and Wallett filed an unfair labor practice complaint with Connecticut’s Department of Labor. They contended that the posting of the quote was a breach of the duty of fair representation and that the State violated the collective bargaining law by failing to remove the Dill quote from bulletin boards in the workplace.

The Department of Labor disagreed and dismissed the unfair labor practice complaint. Starting with the allegations against the State, the Department recited that “the Complainants argue that inter­ference, restraint, and coercion are a nat­ural consequence of posting or allowing to be posted a quotation which suggests that they are freeloading. We disagree. In the first instance, the record does not establish that the Unions posted or were aware of the postings prior to the instant complaint. Even if one or both Unions were responsible for the post, however, in this context we interpret the term ‘freeloading’ as a synonym for ‘freerid­ing’ or ‘free rider’. ‘Free rider’ is a term in labor law for ‘employees who receive the benefits of union representation but are unwilling to contribute their share of financial support.’ The U.S. Supreme Court has used ‘free rider’ for over 60 years in decisions analyzing the extent to which a union may compel membership and payment of dues or fees.

“Furthermore, ‘freeriding’ remains relevant more than three years after Janus. Negotiating and administering a collective bargaining agreement and representing the interests of employees often entail expenditure of much time and money and it is an economic reality that a union needs the assured payment of dues from at least some employees in order to afford continuing to represent them. While the Supreme Court has firmly es­tablished public sector employees’ rights to elect not to contribute towards the costs of union representation, the economic reality remains that unions rely on dues to meet those costs and viable alternative funding strategies are uncertain.

“We believe that, regardless of whether one uses ‘freeloading’ or ‘freeriding,’ posting a question which the Supreme Court has grappled with for decades, which is still relevant today, and which many public sector employees likely ask themselves when deciding whether to join a union, would not tend to interfere, restrain, or coerce the exer­cise of protected rights. Specifically, we think that a reasonable employee would interpret the Dill quote as merely part of the continuing post-Janus discourse over union membership. The posting does not single out any nonmembers by name, imply that nonmembers will be denied equal representation, or suggest that nonmembers will be subjected to retaliation.

“The relevant inquiry under the duty of fair representation is whether the union’s acts or omissions show hostile discrimination based on irrelevant and invidious considerations or whether they show good faith within a wide range of reasonableness granted bargaining agents. In this case, we find that the Union did not breach its duty of fair representation by posting, permitting, and/or failing to remove the Dill quote from union bulletin boards.

“As we discussed above, there is nothing in the posting which even re­motely suggests that the Union will not treat members and nonmembers alike. Nor have the Complainants alleged that the posting constitutes evidence of hostile motive for some other allegedly discriminatory act. In fact, the National Labor Relations Board has held that call­ing a nonmember a ‘scab-ass’ in a union newsletter did not breach the duty of fair representation where it did not include an implied threat of retaliation.”

In re Connecticut Police & Fire Union, 2022 WL 682687 (CT. Dept. Lab. 2022)

The post Freeloaders And Free Riders appeared first on Labor Relations Information System.