End the ‘Agency Shop’

The duty of fair representation places no effective constraints on how unions and employers divvy up the benefits among different groups of covered workers. Indeed one of the reasons why unions in the private sector have fared so badly is that they cannot easily overcome these problems. Within the public sector, the dynamic is usually different because state law often guarantees unions their representative status without having to persuade individual teachers to work for them. At this point, the choices left to antiunion teachers are sharply limited when they cannot just opt out. Some of these teachers may wish to free ride on union efforts.

But others do not, for they correctly perceive that they are worse off with union representation. Thus excellent teachers often favor merit raises. They oppose seniority preferences that tie wages and job protection to years of service. They bridle under rules that give weak or incompetent teachers outsized protection against dismissal. Yet these unhappy teachers cannot quit because they know that all other public school systems are burdened with similar rules. It is therefore perfectly sensible for them to prefer no union at all to one that gives them union representation free of charge.

This simple point undermines Abood, insofar as the case rests on the supposed common interests of all workers. As a matter of first principle, unions are the source of two evils: unified, they wreak harm on public services; divided, they offer shabby treatment to their dissident members. In an ideal world, the Supreme Court would use Friedrichs to dismantle mandatory collective bargaining root and branch. But short of that, what the Court should do, and do unanimously, is set dissenting workers free from union domination by striking down all agency shop provisions.

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