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Since the emergence of teacher unionization inthe 1960s, the National Education Associationand the American Federation of Teachers havemonopolized the market for teacher representa-tion services. In the 34 states that require schoolboards to bargain collectively, the NEA and AFTshare almost 100 percent of the market for teacherrepresentation services. Inasmuch as the twounions operate under a noncompete agreement,there is virtually no competition for the right toserve as the exclusive representative of teachers atthe local level.As is the case with monopolies generally, theNEA/AFT monopoly over teacher representationservices has resulted in excessive costs and producerdomination of services affecting millions of teach-ers and support personnel. In 2001, active teachermembership in the two unions was about 2.7 mil-lion out of a total membership of about 3.7 million.Their combined revenues (local, state, and national)probably exceeded $1.5 billion, not including theirpolitical action committees, foundations, and spe-cial purpose organizations.Although teachers would be the primary directbeneficiaries of competition against NEA/AFT, theschool choice movement would be a major, indirectbeneficiary. NEA and AFT are the primary opponentsof school choice. Were it not for their all-out opposi-tion, our educational system would include manyoptions that are not yet available to K-12 students.The argument in this analysis is that for-profitand nonprofit entities of all types should be autho-rized to compete with membership organizations—that is, unions—for the right to serve as the exclusiverepresentative of teachers in collective bargaining.Such reform would open up competition to non-membership organizations, solo entrepreneurs,negotiators, lawyers, and collective bargaining com-panies. Teachers would retain the right to go with-out an exclusive representative, and each represen-tation option would compete against all the others.Teacher representation in the bargaining-law stateswould not be limited to unions as it is now.Teachers could change their choice of representa-tive periodically, perhaps every two or three years, orat the expiration of their collective agreements.The best way to end the NEA/AFT monopoly isfor states to enact legislation that (1) reduces theminimum required showing of interest from 30 to10 percent of the bargaining unit, (2) explicitlyallows individuals, nonprofit and for-profit orga-nizations, and membership organizations to com-pete for the right to represent teachers, and (3)enables all members in bargaining units to vote onthe key decisions affecting their terms and condi-tions of employment.
 Liberating Teachers
Toward Market Competition in Teacher Representation
by Myron Lieberman
_____________________________________________________________________________________________________
 Myron Lieberman is a senior research scholar with the Social Philosophy and Policy Center, Bowling Green StateUniversity, and author of several books about educational employment relations and school choice.
Executive Summary
No. 450August 28, 2002
 
Introduction
Teacher unions are providers of teacher rep-resentation services and teachers are consumersof them. In the 34 states that require schoolboards to bargain collectively, the NationalEducation Association and American Federationof Teachers share almost 100 percent of the mar-ket for teacher representation services. Inasmuchas the two unions have merged in Minnesota,Montana, and Florida, and operate under a non-compete agreement in other states, there is virtu-ally no competition for the right to serve as anexclusive representative of teachers at the locallevel. In addition, NEA and AFT affiliates bargaincollectively in many school districts in sevenstates in which teacher collective bargaining isallowed but not required.
1
In contrast, in nine states that have notenacted teacher bargaining laws, there is realcompetition to represent teachers. For example,in three states without bargaining laws(Georgia, Missouri, Texas), independentteacher organizations enroll more membersthan NEA or AFT affiliates.
2
The message isclear enough: the state teacher bargaining lawshave resulted in a monopoly in teacher repre-sentation services. As will be evident, thismonopoly has had the same outcome asmonopolies have generally: excessive costs forservices geared to the welfare of the producers.What must be done to introduce competi-tion to represent teachers in states thatrequire school boards to bargain collectivelywith teacher unions? The solution proposedherein is to allow for-profit and nonprofitentities of all types to compete with unionsfor the right to serve as exclusive representa-tives of teachers in collective bargaining. Thisreform would open competition to non-membership organizations, solo entrepre-neurs, negotiators, lawyers, and collectivebargaining companies, to cite just a few.Teachers would retain the right to go with-out an exclusive representative, and each rep-resentation option would compete againstall the others. Teacher representation in the34 bargaining law states would not be limit-ed to unions as it is now. Teachers couldchange their choice of representative periodi-cally, perhaps every two or three years or atthe expiration of a collective agreement.
3
NEA and AFT assert that their tenure asexclusive representatives demonstrates teachersatisfaction with their services. As we shallsee, however, it demonstrates only the enor-mous legal and practical obstacles facingteachers who prefer a different exclusive rep-resentative or none at all.
Basic Concepts
The proposed reforms require an under-standing of two basic terms of art in U.S.labor law: “exclusive representation” and“bargaining unit.”Under “exclusive representation,” the cer-tified representative—that is, the union—hasthe exclusive right to bargain on terms andconditions of employment for all of theemployees in the bargaining unit. Individualemployees or groups of employees in the bar-gaining unit do not have the right to repre-sent themselves or to negotiate their ownterms and conditions of employment.The “bargaining unit” consists of thepositions that are grouped together for bar-gaining purposes. The union bargains forteachers who hold those positions, whichmay or may not include part-time teachers,substitute teachers, teachers on leave, orlibrarians. The scope of the bargaining unitdetermines which positions are covered bythe contract negotiated between the exclusiverepresentative and the school board.
Freedom of Choice inRepresentation
A large body of scholarship demonstratesthat consumers are generally better served bycompetitive industries than by noncompeti-tive ones. For this reason, the burden of proof should be on the defenders of the status quoto explain why teacher representation should
2
The message isclear enough: thestate teacher bar-gaining laws haveresulted in amonopoly inteacher represen-tation services.
 
be limited to unions. Nonetheless, teacher rep-resentation by unions is widely taken forgranted in the United States, except by partiesopposed to collective representation per se.Most people assume that teachers alreadyhave freedom of choice in representational mat-ters because they can choose a different unionor no union if that is their preference. As a prac-tical matter, however, real choice rarely exists.Defending the status quo are the NEA andAFT, with about $1.5 billion in revenues fromunified membership dues, more than 6,000full-time staff, the capacity to reach all teachersrepeatedly in school or at home, and strongincentives to avoid competition.
4
Thus, teacherswho wish to change their exclusive representa-tive face a virtually insuperable problem. First,they must finance the campaign for an alterna-tive to NEA/AFT representation from their per-sonal resources, while most of the benefits go toteachers who have spent nothing to oust theincumbent union. If necessary, the NEA/AFTlocals can call upon their state or national affil-iates for media assistance or litigation that thechallengers cannot afford to fight. Moreover, aswill be evident, existing union contracts oftenprohibit other teacher organizations from uti-lizing district facilities, such as meeting roomsor the district mail system. These prohibitionspreclude a serious challenge to NEA/AFT rep-resentation.
Introducing Competition
Suppose for a moment that, with outsidehelp, challengers to NEA/AFT representationwere able to install their organization as theexclusive representative in a local area. The vic-tory would not be likely to trigger uprisingselsewhere without additional infusions of exter-nal support. Even where the decertificationeffort was successful, survival is problematicbecause the NEA/AFT will spare no expense toreverse the outcome as soon as possible.In short, the argument that NEA/AFTaffiliates must be doing a good job becauseteachers have not exercised their right to decer-tify them is simply not tenable. The NEA/AFTargument that teachers are free to choose adifferent exclusive representative ignores thedaunting legal and financial obstacles andhuge funding disparities facing challengers toincumbent NEA/AFT affiliates.Three reforms would remedy these dispari-ties and replace the status quo with a genuine-ly competitive market for teacher representa-tion. First, state bargaining statutes need to bealtered to eliminate or dramatically reduce theminimum showing of interest required to trig-ger an election, thus making it much lessexpensive to mount a challenge to the incum-bent. The “showing of interest” refers to thepercentage of teachers who designate a differ-ent union to serve as their representative; 30percent is the usual minimal requirement.
5
Second, individuals, partnerships, for-profit,and nonprofit organizations must be eligibleto serve as exclusive representatives; they couldprovide sources of funding that could enabledissatisfied teachers to compete effectivelyagainst NEA/AFT affiliates.The third reform would be to allow all mem-bers of the bargaining unit, not just unionmembers, the right to vote by secret ballot onthe following critical issues:(1) initial authorization of an exclusivebagaining representative(2) reauthorization of an exclusive repre-sentative at two- or three-year intervals(3) an employer’s final contract offer(4) strike authorization, if strikes are per-mitted(5) contract ratification(6) dues and fees for representational ser-vices
6
In other words, the state bargaining statutesmust separate membership in an organizationfrom the right to vote on the key decisionsaffecting employment. The reasons for the sep-aration of union membership from eligibilityto vote on key bargaining issues can be summa-rized as follows:
•
All teachers should have the right tovote on the key bargaining decisions,
3
The argumentthat teachers arefree to choose adifferent exclu-sive representa-tive ignores thedaunting legaland financialobstacles andhuge funding dis-parities facingchallengers toincumbentNEA/AFTaffiliates.
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