Thursday, July 31, 2014

The case for a conscience exemption, Part Two

In my last post, I made what I called "it's the right thing to do" argument for expanding the religious exemption to fair-share dues in the union contract to an exemption based on conscience.  In this post, I will argue that not only is it the right thing to do, it might be a good tactical maneuver on the part of the union, provided the expansion follow certain "ground rules."  I'll call this argument the "practical" argument.  In my next post, I'll go over the "ground rules."

The practical argument comes partially as a response to what are probably the best objections to expanding the exemption, namely, that doing so would effect a drain on the union's resources and encourage anti-union-shop (aka "right to work") activists in their efforts to outlaw all fair-share provisions.

Expanding the exemption could lead to a drain on the union's resources.  I can see two ways that expanding the exemption might do so.  The first is, if enough people apply for the exemption, the unions' funds would drop precipitously.  The second is, even if relatively few people avail themselves of the exemption, "managing" the exemption-seekers, verifying they contribute what they are supposed to to the charity of their choosing (in lieu of paying the money to the union).  That effort also imposes a "cost" on the union, in terms of more effort expended with no additional (in fact, even less) money coming in as a result of that effort.

Expanding the exemption could also encourage anti-union-shop activists looks at those who in other states have outlawed fair-share and who think to do so in Illinois.  They would look at any expansion of exemption privileges as a chit in the direction toward their preferred policy, of full exemptions for anyone who doesn't want to contribute to the union. 

Both objections have a point.  Although I will argue that on balance, expanding the exemption does more good than harm for the union, the harm it does cannot be completely eradicated.  Some will seek the exemption.  The union will have to expend the effort and cost to manage it.  And anti-union-shop activists will be encouraged by it.  There's no getting around any of those points.

And yet, there are the opportunities for the union, too.  To the first objection--that the scheme will cost money--I offer something of a bet, but one that I nevertheless feel confident I will win.  I think very few people would avail themselves of the conscience exemption.  Keep in mind that as long as those enjoying the exemption have to contribute the money elsewhere, to a charity mutually agreed upon between the union and the exempted person, the exempted person still has to pay.  That person also has to go out of his or her way to get the exemption in the first place.  I believe that if the exemption is expanded, getting it should be fairly easy to do, say by downloading a form from the union's or university payroll's website.  But still, one has to go through the effort to do it, and then go through the effort to contribute to the charity and get a receipt or other proof to show to the union.

But how will the union know the receipt is a "good one" and not just something forged by the exempted person?  My first answer is that if someone is dishonest enough to forge a receipt, they are probably dishonest enough to claim in the first place that they belong to a religion that disapproves of unions and take advantage of that exemption.  Maybe that possibility is a reason to get rid of, instead of expand, the religious exemption, but I obviously disagree.

The union might also negotiate some scheme by which it can verify with the charity or charities that a payment was made.  Or, the union could set up a separate online account that collects money from all exempted persons as an automatic dues withdrawal.  From that online account, the exempted person could allocate money to the selected charity or charities, and if the exempted person does not do so after a certain time (say, 30 days), the money reverts to the union.

That answer is a bit of a stretch, I admit.  I imagine the union contract and applicable privacy laws as well as best practices among charities probably make confirmation of donations difficult or tricky.  (Or maybe not, I'm not very familiar with confidentiality when it comes to charitable donations.)  And setting up a separate account to "bank" payments is probably a good idea, but I have no idea how easy or hard it is to do, and it would probably require the union to spend money upfront developing such a site.

Or the union can trust to its charges' honesty.  Again, someone who would go out of their way to forge a receipt would probably go out of their way to lie about a religious exemption in the first place.  Also, the union claims to represent all members of the bargaining unit and must represent them.  In a labor dispute between a member of the bargaining unit and the university, the union will help the member of the bargaining unit.  It claims to have its charges' interests at heart, and if it wants to do that, it needs to assume a certain respect and trust for the members of its bargaining unit.

What if my prediction is wrong?  What if a significant number of people elect the conscience exemption?  I admit that is a possibility, and I don't have a ready answer aside from my bet that they won't.  If the number of people who elect the exemption is close to a majority of the union, say 40% or 50%, then I submit such an occurrence operates as a salubrious warning sign for the union.  If that many people are willing to go out of their way to pay someone else other than the union, then the union is in trouble and it is better that it know its members' discontent during the term of a contract rather than when or if certification again comes up for consideration.

But if the number is closer to, say, 10% of the bargaining unit, that could still be a chunky financial hit for the union without necessarily indicating a critical lack of support.  "Necessarily" is a key word here:  I suggest that if even 10% are willing to go out of their way to get an exemption and pay the money elsewhere, then that is a warning sign the union could benefit from knowing.  But it's a different thing from 40%-50%.  So yes, the union would run a risk if it concedes a conscience exemption.

And what about the other objection, that expanding the exemption would be boon to anti-union-shop activists?  I suggest the boon, such as it is, would be one of momentum.  Anti-union-shop activists would see the grant of such an exemption as one more sign of the weakness of unions.  I suppose they could encourage union members to exercise their new option, under the guise of a "better to help people through charity than support the union" campaign. 

But while I cannot deny a potential benefit to the anti-union-shop movement, expanding the exemption will otherwise make the union stronger in that same struggle.  The union, after making the exemption available, can now say honestly it exercises less coercion than before, that the members of its bargaining unit have a meaningful choice and can direct their fair-share funds elsewhere.  Such a position won't sway the dedicated anti-union-shop activists, but it would be a good counterpoint to the notion that fair-share operates only as coercion, without any choice.  Coercion is still there, of course.  The member of the bargaining unit still has to pay regardless.  But he or she now has more freedom to direct where the pay goes.

I'll add to that last point that expanding the exemption might be the way to meet possible changes in the law.  As I've noted, the recent Supreme Court case Harris v. Quinn, did not abolish fair-share for public employees, but it could be interpreted as signalling a readiness by some of the justices to do so in a later case, more amenable to addressing that specific question.  If the union can say those it claims to represent have a true choice in how their fair-share portion is meant, perhaps an anti-fair-share ruling wouldn't apply to it.

In short, I believe expanding the exemption could benefit the union.  But the benefits I describe in this post and my prior one depends on certain "ground rules."  Those I will discuss in my next post.

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