and Bruce E. Kaufman, The Internal Governance and
Indiana, school board did not violate the U.S.
Organizational Effectiveness of Labor Unions (New York:
Constitution in denying a competing organiza-
Kluwer Law International, 2001), pp. 435453.
tion access to the school district mail system. The
Whereas Estreicher's analysis focused on labor
closeness of the vote, and the fact that the deci-
unions in the private sector under the National
sion overruled the decision of the Seventh Circuit
Labor Relations Act, this article extends Estreicher's
Court of Appeals, and that the Leon County con-
analysis to public education. Although my analysis
tract carried exclusivity far beyond the circum-
stances in the Perry case, suggest that the sweep-
refers to "teachers," most of the points made are
applicable to state and local public employees gener-
ing exclusivity in the Leon County contract would
ally. Feedback is invited and should be sent to the
not withstand a Supreme Court challenge.
author at lieberman@educationpolicy.org. It
Furthermore, states are free to limit exclusivity to
should also be noted that Milton Chappell, staff
representation on terms and conditions of
attorney for the Right to Work Legal Defense
employment if they wish to do so.
Foundation, proposed that unit members instead of
union members make the critical decisions in collec-
10. For a critique of the arguments for and
against agency fees, see Lieberman, The Teacher
tive bargaining in June 1995 and that elections for
Unions, Chapter 10.
recertification be held at least once every three years
without a showing of interest requirement.
11. For a criticism of the free rider rationale for
Chappell opposed exclusive representation and was
agency fees, see Lieberman, The Teacher Unions,
not as explicit as Estreicher in spelling out the issues
Chapter 10, pp. 180199.
that should be resolved by unit members; also,
Estreicher's article was specifically devoted to private
12. See Ellis v. Brotherhood of Railway, Airline, and
sector labor relations whereas Chappell's analysis
Steamship Clerks et. al., 466 U.S. 435 (1984), and
focused on public education. See also Milton
Lehnert v. Ferris Faculty Association, 111 S.Ct. 1950
Chappell, "Seeking a New Foundation: Legislative
(1991).
and Practical Alternatives to the Current Monopoly
Bargaining Model That Will Enhance the Viability
13. The agency fees for the state and local unions
of Independent Teacher Associations," Government
vary with each other and from year to year. Even
Union Review, Summer 1995, pp. 128.
the fee for the NEA varies in different states at the
same time because the fiscal years for the states and
4. Lieberman, Myron, The Teacher Unions (New
locals vary by state. Furthermore, in many school
York: Free Press, 1997).
districts, the NEA and AFT collect full dues from
agency fee payers. The National Right to Work
5. Lieberman, Myron, The Teacher Unions, (San
Legal Defense Fund estimates that 2025 percent
Francisco, 2000), p. 273. The 2000 paperback edi-
of NEA membership is due to agency fees.
tion is a revised and updated version of the 1997
hardcover edition.
14. For 20012002, the NEA reports using 63.87
percent of dues on collective bargaining. This figure
6. These issues are taken almost verbatim from
can be modified slightly by the state associations.
Estreicher, pp. 43637. However, in most states,
See NEA Supplemental Schedule of Chargeable and
teacher strikes are prohibited, another reason why
Non-chargeable Expenditures, Year Ending Aug 31,
Estreicher's proposal is not completely applicable
2000, p. 8, available from the National Education
to public education.
Association, 1201 16th Street, N.W., Washington,
D.C. 20036.
7. For a list of benefits for the staff of NEA's state
affiliates, see Lieberman, The Teacher Unions.
15. Official Transcript, "Proceedings before the
Supreme Court of the United States" in Lehnert v.
8. 20002002 Collective Bargaining Contract
Ferris Faculty Association , Case No. 89-1217, p. 25.
between the Leon County School Board and the
Leon Classroom Teachers Association (F.E.A.),
16. According to one of its attorneys who has liti-
Article III, par. 5, p. 11. Tallahassee, Florida, 2000.
gated several agency fee cases against the NEA, the
National Right to Work Legal Defense Foundation
9. See Public Employees v. School Board of Lee County,
has tried to raise the issue of the frequency and
American Federation of Teachers-Hillsborough v. School
nature of local and state affiliate requests for assis-
Board of Hillsborough County, and Public Employees
tance, but the U.S. Supreme Court showed no
Relations Commission, 584 So 2d 62 (Fla. Appeal 1
interest in pursuing the issue. From oral commu-
Dist. 1991, and Relations Commission, 513
nication to Myron Lieberman, May 2002.
Southern Reporter, 2d Series, 1286. In Perry
Education Association v. Perry Local Educators
17. In agency fee litigation, the NEA asserts that
Association, 460 U.S. 37 (1983), a 54 decision of
62 to 65 percent of its expenditures are for collec-
the U.S. Supreme Court held that the Perry,
13