A Ticket to Free Ride? Not So Fast: Members-Only Collective Bargaining as a Possible State Response to a Judicially Recognized Right to Work

Abstract

Union supporters' worst fear came true in 2015 when the United States Supreme Court granted certiorari in Friedrichs v. California Teachers Ass'n. At stake in Friedrichs was public-sector unions' ability to collect fair-share fees from dissenting employees notwithstanding First Amendment implications, a practice previously upheld by the Court in Abood v. Detroit Board of Education but called into question by the Court's recent decision in Harris v. Quinn. Though the likely impact of a union-adverse decision in Friedrichs is arguably overstated, it is true that a de facto nationwide right-to-work law would drastically change public-sector labor and threaten the considerable power wielded by unions, if not threaten their continued existence. Justice Scalia was almost certainly set to be a member of the five-member majority seeking to overturn Abood, and his death led the Court to split 4–4, thus keeping Abood intact at least awhile longer.This Note, written prior to Justice Scalia's death, presented an option to states that would be dissatisfied with the idea of a right-to-work environment: members-only collective bargaining. Those who support agency-shop provisions argue that failing to charge dissenting employees for their fair share of collective bargaining costs allows them to free ride, while dissenting employees disagree with collective bargaining in the public sector from a political perspective. This proposal provides each side with what they want most — unions and their supporters no longer have to support those individuals who are not willing to pay their fair share, and union opponents have the opportunity to be wholly free from union representation. This Note attempts to weigh the pros and cons of such a drastic and domestically unprecedented response to any future decision by the Court to overrule Abood.