A pending bill in Hawaii introduced by Representative Marcus Oshiro proposes another policy option: public funding for union representation if the Supreme Court decides that agency fees are unconstitutional.
Hawaii and Rhode Island were the first States to enact public sector collective bargaining laws that mandated payroll deductions of service fees or charges for non-members.
Under Representative Oshiro's bill, the State of Hawaii would make annual contributions to a "public employees' collective bargaining fund," which would be disbursed to the "exclusive bargaining representative for every bargaining unit" pursuant to the terms of collective bargaining agreements. On its face, the proposed public option would fund the representation of all public sector bargaining unit employees, whether they are members or non-members of a union.
Public funding of union representation of government workers who choose not to become union members is not a new idea. The concept was examined as early as 1968 in a memorandum prepared by the New York City Corporation Counsel's office ten months after the enactment of New York's Taylor Law and the New York City Collective Bargaining Law. The memorandum stated, in part:
'An alternative to the checkoff of a representation fee would be the direct payment by the City to the Union of a lump sum bargaining fee. Although such a solution would obviate certain legal difficulties inherent in compulsory checkoff..., it has disadvantages from a policy standpoint. It would create a psychological detachment between the union and employee and have the effect of creating a 'company union' atmosphere." See, Memorandum from Office of the Corporation Counsel to Labor Policy Committee, Received by Office of the Mayor, July 9, 1968, pp. 11-15, City of New York Department of Records & Information Services, Municipal Archives, John V. Lindsay Files, Box 58, Folder 1094 Labor Policy - Agency Shop 1968-1969.
The memorandum also highlighted the fact that employer funding of union representation would be unlawful under federal private sector law. Fifty years later, it is likely that the concept of public funding of union representation would be opposed by both supporters and opponents of public sector collective bargaining.
It can be argued that employer-funded representation would undermine the independence of unions as the exclusive representative of workers, and would create the specter of company unionism. Such funding would constitute employer domination and might result in interference in the union's representation of bargaining unit employees. Fiscal conservatives would attack the concept as an illegitimate expenditure of tax dollars, and as evidence of the alleged illegitimacy of public sector collective bargaining.