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Photo; AFP
Photo; AFP

Labour unions’ free speech problem

Reconciling collective bargaining with freedom of speech and expression requires careful compromise

The US Supreme Court’s recent Janus vs AFSCME ruling will have far-reaching consequences for labour unions. It overruled the 41-year-old precedent set in Abood vs Detroit Board of Education, 1977, and prohibited recognized public sector unions from mandating that employees who were non-members also pay “agency fees", i.e. a percentage of the full union dues. Recognized unions (a single union representing the interests of all workers at a workplace whether they are union members or not) are a means developed worldwide to combat the problems associated with a multiplicity of unions. In India, for instance, the politicization of trade unions exacerbates conflicts between various unions, undermining collective bargaining.

The Janus ruling, in fact, highlights the failure of Indian jurisprudence to reconcile worker interests with concerns arising out of compelled speech through mandated contributions. However, squarely applying the majority approach, as in Janus, is not suitable to the Indian context. India should conceptualize the freedom not to associate or speak in a manner that helps overcome these challenges.

The Indian Supreme Court (ISC), in Balmer Lawrie Workers’ Union, Bombay and Anr vs. Balmer Lawrie and Co. Ltd. and Ors, 1984, was faced with a similar question as in Janus: Whether workers can be mandated to contribute towards the propagation of an opinion that they do not believe in. However, the ISC refused to examine whether contributions towards all union activities, political or otherwise, would be a form of compelled speech. Instead, the analysis was based entirely on the idea that it is unfair to allow non-members to benefit from union activities without any element of mutuality.

Janus delivers a blow to this idea. It points out that the problem of freeloading is not unique to labour unions. Individuals benefit from a wide range of interest groups. Beneficiaries cannot be mandated to make contributions towards all these benefactors. For instance, consider the case of a non-government organization (NGO) which successfully lobbies to increase pensions for all current pensioners. It would be unreasonable to argue that all pensioners in the country are now obligated to contribute to this particular NGO, albeit they benefited from it.

Further, in India as well as the US, recognized unions are performing a statutorily mandated duty by engaging in securing benefits for the labour force in that industry. This duty is coextensive with the privilege granted to the recognized union by granting it monopoly in representing the collective interests of workers. This precludes unions from alleging unfairness on not being paid to carry out functions that they are in any case mandated to do by law.

That said, a position such as the one taken in Janus is ill-suited to the socioeconomic realities of India. Labour conditions in India, despite existing social security regulations, such as minimum wage laws, are poor. And existing labour protections are often not enforced due to asymmetry in the employer-worker relationship. In such a situation, seeing to their short-term needs becomes crucial for workers before considering long-term, collective interests. Without any sanction, it would be impractical to expect non-union members to contribute, crippling labour unions.

In order to offset the reduced revenue source, unions would be forced to charge more from existing members. This would result in union membership being seen as highly undesirable, due to the associated economic costs shouldered only by one section of the labour force. The resultant mass exodus would hurt unionization, dilute membership and undermine collective bargaining power as a whole.

Free speech concerns must thus be reconciled with worker interests. A suitable compromise would be the position taken by the US Supreme Court in the Abood case. Here, a distinction is drawn between contributions towards employment-related ends on the one hand and the political or ideological objectives of a union on the other. This would also be in keeping with the position taken by the ISC in Union of India and Ors vs Motion Picture Association and Ors, 1999, where it held that compelling speech which endorses political or ideological views is constitutionally impermissible.

Adopting the Abood position would mean that only contributions towards political activities of unions would be considered coerced speech. Political activities would include promoting the interest of any political party or advocating the candidature of any office bearer of the union. Contributions towards non-political activities, such as negotiating for better working conditions, would not be regarded as coerced speech.

While ensuring use of non-member sourced funds solely for employment-related purposes is a challenge, statutorily mandated auditing of union funds can address this. This could be accompanied by segregation of funds allocated for allaying employment-related concerns and those used for ideological purposes by unions. This would mitigate the chances of funds being siphoned for non-employment purposes, ensuring that workers outside the union are not compelled to endorse any politico-ideological endeavours.

Free speech in the employment context should be construed in a manner that makes space for worker interests. Neither free speech nor collective bargaining can be compromised.

Sarath Ninan Mathew and Siddharth Sonkar are students at the West Bengal National University of Juridical Sciences. Comments are welcome at theirview@livemint.com

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