Friedrichs: An Unexpected Tool for Labor
Today, about half of U.S. states allow unions and public-sector employers to privately negotiate for agency shop arrangements. Under such an arrangement, employees in a bargaining unit who choose to not join the union (and thus do not pay membership dues) are required to pay a fee to the union that covers their share of the costs the union bears as their collective bargaining representative. Unions cannot avoid these costs. As is the case under the NLRA for private-sector unions, states require an exclusive bargaining representative regime. That is, if workers want to guarantee that their employer will sit down and bargain with their representative, those workers must ensure that their chosen representative is not just chosen by them but supported by a majority of workers in their bargaining unit –a bargaining unit they do not get to choose for themselves. Once their representative is chosen by a majority in that unit, the representative is then the exclusive representative for all the unit members, even those who do not want that representative bargaining on their behalf. Because the union represents all members of the bargaining unit, the law also requires the union to represent all members equally.
The union cannot, for instance, bargain for a raise for union members only. If the union extracts additional benefits from the employer on behalf of workers, both union members and non-members must share in those gains equally. As a result of government-imposed exclusive representation and fair representation requirements, the government has created its own free rider problem. Once the union has been elected, a worker knows she will get any benefits the union can provide without ever having to join, and thus pay membership dues to, that union. Agency fees (also known as “fair share” fees) are intended to combat this problem. By requiring non-members of the bargaining unit to pay their share of the costs, some free riding is avoided.
