Many states grant public sector unions, like most unions in the private sector, the privilege of being the “exclusive representative” for all workers in an employee group, also called a bargaining unit. As such, these government unions are charged with providing the “duty of fair representation” for every employee in the bargaining unit, regardless of whether or not they are actually a member of the union. In right-to-work states, where financially supporting a union is voluntary, unions often claim this creates a “free rider” problem, even though they have lobbied in the past for the ability to represent all workers in a bargaining unit.[1]

At issue is that public sector unions are required by many states to provide services to employees who are allowed to opt out of financially supporting them. These nonmember employees[*] receive some services from the union, such as collective bargaining over compensation and working conditions and providing representation in case of a dispute with the employer. From a union’s perspective, employees who opt out of union membership in right-to-work states are getting something for nothing — hence, the free rider label.

On the other hand, a case could be made that these nonmember employees are just as much “forced riders” as they are “free riders.” Nonmembers may not want the same pay structure, benefits and working conditions the union negotiates on their behalf and that they are forced to accept. For example, perhaps a nonmember employee would like to negotiate for a higher salary in exchange for less paid leave time. Or perhaps a working mother would accept less pay to gain a more flexible work schedule that allowed her to spend more time with her children (and save on daycare expenses).

Similarly, nonmember employees may not want the union to interfere in disputes with employers, believing they could manage the situation better on their own.[†] Since the union is the exclusive representative, however, nonmember employees must accept the union’s negotiated pay, benefits, working conditions and representation.[‡]

Despite these opposing viewpoints on the free/forced rider problem, the solution is relatively simple: Allow workers who opt out of unions to represent themselves — referred to in this paper as “Worker’s Choice.” Under this policy, public sector employees[§] in unionized workplaces would choose one of two options:

  1. Be a union member and accept the working conditions negotiated by the union;

  2. Opt out of union membership and negotiate for compensation and working conditions independently.

This policy would both solve the free/forced rider problem and expand the freedom of individual workers. Public sector unions would no longer be forced by state law to provide services to nonmembers, but would maintain their exclusive representation privilege — only one union could organize employees in a unit. Individual government employees would no longer be forced to accept the compensation and working conditions negotiated for them by an organization they do not wish to support.

Further, public employees who opt out of union membership will have the freedom to negotiate for the type of wages, benefits and working conditions that best suits their needs. These nonmember employees would maintain all the same rights as employees working in nonunionized worksites. Finally, this policy would be relatively simple to legislate, requiring only small changes to a state’s public sector bargaining law.[¶]


[*]Throughout this paper, employees in a unionized worksite who are members of the union will be referred to as “union member employees.” Employees in a unionized worksite who have exercised their right-to-work rights and opted out of union membership will be referred to as “nonmember employees.” Employees in a nonunionized worksite will be referred to as “nonunion employees.”

[†]For instance, some workers may feel that the union representing them does not take their complaints seriously. An example of this concern comes from Joseph Valenti, president of the Teamsters Local 214 in Michigan. He said most workers’ grievances were “frivolous.” Tom Gantert, “Union Executive Calls Most Member Grievances ‘Frivolous,’” Michigan Capitol Confidential (Mackinac Center for Public Policy, Sept. 3, 2013), http://perma.cc/T4ND-DU74.

[‡]The National Labor Relations Board, the federal agency that administers the National Labor Relations Act, holds that workers have the “right to fair representation.” This applies to both union members and nonmembers and applies to “virtually every action that a union may take in dealing with an employer … including collective bargaining, handling grievances, and operating exclusive hiring halls.” Although these policies only technically apply to private sector unions, many states have modeled their public sector labor laws after the NLRA, and so the NLRB’s interpretation of the law applies for most public sector unions too. “Right to Fair Representation” (National Labor Relations Board), http://perma.cc/K9N7-WCRS.

[§]Although this paper discusses only changes to laws pertaining to state and local public sector employees, Congress could reform the National Labor Relations Act to enable Worker’s Choice for all private sector employees.

[¶]See “Appendix A: Worker’s Choice Model Legislation” for more details.