The United States is likely to be an entirely open-shop country in the near future. Republicans dominate over two-thirds of state legislatures, over half of all governorships, both houses of Congress, the White House, and a majority of seats on the Supreme Court. As the GOP proliferates, so does anti-union legislation. Twenty-eight states have already passed open-shop -- so-called "right-to-work" -- laws, which allow workers to receive the benefits of unionization without being a union member or paying fees for union representation. Over the next couple of years, the Supreme Court is likely to make right-to-work the law of the land in the public sector and it is possible Congress will pass federal legislation to do the same in the private sector.
Right-to-work laws create two interlocking problems for labor unions. First, unions are legally required to represent all workers in a bargaining unit that the union has been certified to represent. In open shops, the "duty of fair representation" requires unions to expend resources on non-members who are covered by the union contract. This is known as the free-rider problem. Union activists often refer to workers who opt out of paying for the benefits of unionization as "freeloaders." This leads to the second problem created by right-to-work laws: They undermine solidarity on the job by pitting workers who pay their fair share to support the union against workers who do not. This is the divide-and-conquer problem. In my use of these terms, the free-rider problem is institutional -- the union has to expend resources protecting and fighting on behalf of workers who are not members and do not pay dues. The divide-and-conquer problem is interpersonal -- when workers can opt out of supporting the union, this results in union and non-union workers developing adversarial attitudes and behaviors toward one another, diminishing their unity on the job and their capacity for collective action.
Some on both the left and the right have argued that labor should deal with the free-rider problem by kicking out the freeloaders. If an open-shop future is inevitable, argues labor lawyer Thomas Geoghegan in Only One Thing Can Save Us, then unions should abandon representation elections for members-only bargaining, in which only union members are covered by a union contract, and "represent only the people -- be it 40 percent, or 30 percent, or fewer -- who sign up, take the oath, and pay the dues, and forget everyone else." Likewise, Shaun Richman, a former director at the American Federation of Teachers, argues that unions in open-shop states should pursue a legal strategy through the courts that will establish members-only bargaining so unions can "cede exclusive representation to kick out the scabs."
Law professors Catherine Fisk and Benjamin Sachs join Geoghegan and Richman in arguing not only that exclusive representation should be dropped in open-shop environments through members-only bargaining, but that the results of doing so could ultimately be beneficial for unions that will now be forced to win over workers through securing strong contracts or offering superior union services. "If the union could secure wage and benefit gains through collective bargaining, then workers would have every incentive to sign up and pay dues," write Fisk and Sachs. "If the union couldn't deliver the goods, then workers wouldn't join and wouldn't pay," and therefore, they write, unions are forced to "prove they provide valuable services." This line of argument has been taken up, with some twists, on the right by Vincent Vernuccio, a former member of President Trump's Department of Labor transition team and director of labor policy at the anti-union Mackinac Center. Vernuccio has argued that unions should adapt to the current environment by pursuing "Worker's Choice" legislation on the state and federal level. Under Worker's Choice legislation, a union must still win a certification election to represent workers for the purpose of collective bargaining, but the union would be relieved of the obligation to represent workers who are not members. It would also allow nonunion workers in a unionized workplace to pursue their own private contract with their employer outside the collective bargaining agreement. Since Worker's Choice legislation in the private sector would require Congress to change federal labor law, Vernuccio has been actively advocating for this law to be implemented for the public sector on the state level.
To illustrate how unions fare in an environment without agency fee or exclusive representation, left-wing authors typically draw from the history of the early twentieth century or look to Europe. We could also look to today's Tennessee. In 2011, the newly elected Republican majority in the Tennessee legislature targeted the state's collective bargaining law for teachers, eliminating exclusive representation and creating a negotiating process between teachers and local school boards that allowed for multiple organizations, including a "yellow" union -- one that claims to represent teachers while advancing broader corporate interests -- to represent teachers simultaneously at the bargaining table. Based on my experience as an organizer for the Tennessee Education Association (TEA), it is clear that jettisoning exclusive representation might have solved the free-rider problem for the union, but it exacerbated the divide-and-conquer problem. An examination of the Tennessee law -- its implementation and the broader national context -- reveals how the push by pro-union advocates to kick out freeloaders easily plays into the right's strategies to diminish union power.
Repeal or Replace
Tennessee's 107th General Assembly opened in 2011 with Republicans in control of both chambers of the legislature for the first time in 142 years. Their first major legislative priority was the repeal of the 1978 law that allowed Tennessee teachers to engage in what one leading Republican scornfully called "collective, socialistic bargaining." The initial Senate bill would have completely repealed the right to collective bargaining for teachers. The House passed a less extreme version that would have allowed a more limited form of collective bargaining to continue. The two bills were then reconciled in a House-Senate conference committee. The resulting compromise was the Professional Educators collaborative Conferencing Act (PECCA) of 2011.
PECCA replaced the state's collective bargaining law with a form of interest-based negotiations, colloquially referred to as "conferencing." Rather than specifying mandatory and permissible subjects, as in most union contracts, the law strictly limits negotiations to seven specific topics. Excluded from negotiations are policy areas -- such as tenure, merit pay, and seniority -- that are typically of interest to corporate education reformers, which are now determined by a mixture of state law and the rules and regulations set by the Tennessee State Board of Education. The conferencing process produces a legally binding Memorandum of Understanding (MOU) that must be ratified exclusively by the school board to take effect. In the case of impasse, no mediation or arbitration is allowed, and striking is unlawful. The law was written to ensure that ultimate legal authority for approval of the MOU rests solely with the employer. The MOU covers all full-time teachers employed by the school district, regardless of whether they belong to the union or any other organization. Administrators and school support personnel, both of which were covered under the previous bargaining law, are exempt under PECCA and have no negotiating rights.
The law also eliminated exclusive representation for the union and created a multi-organizational form of negotiations. Teachers interested in conferencing have a one-month window to submit a petition of interest to the school board signed by a minimum of 15 percent of the school district's teachers. Upon receiving the petition, the school board creates a committee to oversee a secret ballot election. In the election, the teachers vote on two questions: (1) Do you want to engage in collaborative conferencing? (2) Which organization do you wish to represent you for the purpose of collaborative conferencing? The school board is not compelled to conference with teachers unless more than half of all teachers who are eligible to vote in the election answer "yes" to the first question. Organizations representing teachers earn a number of seats on the conferencing team in proportion to the total number of votes they receive, providing they secure a minimum of 15 percent of the vote. This law paved the way for a system of "interest-based collaborative problem solving" that was trumpeted as an alternative to adversarial collective bargaining by requiring a "cooperative" process and consensus (super majoritarian if not completely unanimous votes) on decisions. The law requires matching teams of seven to eleven persons based on representation, with one team representing the school board and the other team representing teachers -- but the teachers' team could include members of competing organizations with very different negotiating goals and organizational resources. The negotiation process for Tennessee teachers is uniquely complicated: Multiple organizations can simultaneously represent teachers in a single process that produces a legally binding agreement that covers all teachers employed in the district, regardless of what organization they actually belong to, if any.
The Role of Yellow Unions
The Professional Educators of Tennessee (PET) is a "professional association" that competes with the TEA for members and was one of several right-wing groups lobbying for the passage of PECCA. PET is part of a national "coalition of independent education associations" (IEAs) that bill themselves as being "alternatives" to state and local affiliates of the National Education Association (NEA) and the American Federation of Teachers (AFT). There are currently about two dozen IEAs across the country and several are bigger than the NEA or AFT locals in their jurisdiction. PET claims "there are more educators that are members of independent education associations than the AFT."
However, there is no available evidence to support this claim, since many of these organizations do not publicly report their membership numbers.
The teachers' [negotiating] team could include members of competing organizations with very different negotiating goals.
IEAs provide a mixture of liability insurance, ongoing professional development, and legal representation -- all at a cheaper rate than typical union dues. IEAs also attempt to set themselves apart from unions by publicly denouncing "unprofessional" tactics like strikes and pickets and pro-claiming themselves "non-partisan," meaning they do not endorse or support candidates running for public office. IEAs support right-to-work legislative packages, and many have deep ties to both the State Policy Network (SPN) and American Legislative Exchange Council (ALEC). One example of this partnership is "National Employee Freedom Week," a coalition that includes ALEC and SPN think tanks that partner with their particular state's IEA to pen editorials, share social media, and disseminate materials advising workers on how to drop union membership. PET and the Beacon Center of Tennessee, a Koch-funded SPN-affiliated think tank and one of the most prominent pro-voucher and pro-charter lobbyists in the state, have partnered during National Employee Freedom Week to attack teachers' union dues deductions and union political spending. In 2016, National Employee Freedom Week promoted Vernuccio's Worker's Choice legislation in open-shop states.
[Independent Education Associations] attempt to set themselves apart from unions by publicly denouncing [as] "unprofessional" tactics like strikes and pickets.
While lobbying for PECCA alongside the Beacon Center, PET attacked "monopoly bargaining" as "an outdated and adversarial system" that turned anti-union teachers into "captive passengers" who were "forced to accept representation they do not want." If the union says it is a burden to represent nonmembers, argued PET, "then they should only be allowed to represent their members, and nonmembers should be allowed to speak for themselves." In a 2014 video produced for the thirty-ninth annual conference of the Concerned Educators against Forced Unionism, a project of the National Right to Work Legal Defense Foundation, PET's director J. C. Bowman bragged that the organization had been pivotal in pushing the Tennessee governor to pass PECCA despite union opposition.
The Impact of PECCA
The passage of PECCA was a powerful blow to the TEA, damaging the most politically powerful organization representing the interests of teachers and public education in the state. In 2011, when Tennessee's collective bargaining law was repealed and replaced, ninety-two of the state's 136 school districts had collective bargaining agreements with the TEA. Since then, all the agreements have expired, and three dozen school districts currently have an MOU between teachers and the school board. In the year following the passage of PECCA, TEA membership fell from a high of 55,000 down to 46,000 (these numbers include retirees and college students earning education degrees that require student-teaching in public schools), while PET reported that its membership had nearly doubled over the past few years, to a total of 6,000 members.
When PET receives enough votes to participate in the conferencing process, its representatives can function as a third party with their own independent political agenda separate from the teachers' union. Such was the case in rural Polk County, where PET members occupied two of the seven seats representing teachers. "It's three way bargaining, you're negotiating with PET and management," said Carol Hambright, the former Polk County Education Association president and the union team's conferencing leader following the expiration of their collective bargaining agreement. According to Hambright, who has been teaching twenty-six years, PET members prevented the union and management from "reaching consensus on many issues." One such issue was the grievance procedure. While conferencing, the PET team sided with management in opposing binding arbitration as the final step in the grievance process. "The collaboration process, it all depends on the political pull on each side, on who has the most leverage with school board members," said Hambright. Winning over school board members often requires that the teachers stand united on an issue and show that their position has mass support. By opposing the union, PET representatives lent credibility to management's position and created the appearance that teachers in the district were divided on the issue. Since no consensus could be reached and a majority of the conferencing representatives (all of management's team and the two PET representatives) were voting in opposition to arbitration, the union conceded on the issue. When a stalemate is reached in the conferencing process, the school board has the discretion to unilaterally impose its decision through school board policy. As a result, the Polk County school board approved a three-year MOU in 2015 with no arbitration clause in the grievance procedure.
PET can be less adversarial during negotiations according to Constance Brown, a chemistry teacher and treasurer for the Clarksville-Montgomery County Education Association (CMCEA). PET holds one of seven teacher seats in her school district. The PET representative "doesn't contribute anything," says Brown. "Management is our biggest obstacle." Nevertheless, Brown argues that the PET member still weakens the local's position. "If management were talking exclusively to CMCEA, then there is no doubt that our team would be in a stronger position," she said.
PET not only undermines the union at the negotiating table, but it divides the teachers in the schools, recruiting members through a mix of social conservatism and cheap services. "They play on social issues like the Republicans do, claiming that the union promotes abortion," Hambright said. That strategy along with the price subvert the union. Annual union dues for the average full-time teacher in Tennessee is $500. PET's dues are $189 a year. For Hambright, the union's primary purpose is not to provide services, but to be the vehicle through which teachers fight on behalf of their schools, their students, and their profession. If the union fails to engage enough teachers in that fight, then they are susceptible to being undercut by the competition. "TEA has not done enough, we won't win people back if we aren't fighting on the issues in a really visible way," said Hambright. "If the only reason to join is insurance or a lawyer, then teachers go for the cheaper option."
Based on her experience in the conferencing process, Hambright believes that the costs of losing exclusive representation outweigh the benefits. "The freeloaders were something we griped about for years," she said. "Here we are negotiating for them and fighting for them, that was a big complaint, but looking back, I would take the freeloaders in a heartbeat to have the right to exclusive representation again." Brown agrees, "The teachers' voice is not nearly as strong as it was under bargaining and when CMCEA was exclusive," she said. "We don't have the power we had then." Both union locals were hindered in their attempts to fight for strong MOUs in their respective school districts by the presence of PET members on their teams.
Hambright argues that PET's support for repealing and replacing collective bargaining should be viewed in light of the organization's broader institutional connections to pro-voucher and pro-charter organizations. By undermining the Tennessee Education Association at the statehouse and the bargaining table, PET is weakening the strongest political opponent to privatization in the state. "They have their own agenda, which is to undermine public education," she said.
Looking to the Future
ALEC, the SPN, and the coalition of IEAs together provide a national infrastructure for advancing anti-union legislation state-by-state. The Worker's Choice legislation that the National Employee Freedom Week is coalescing around is a viable strategy for the right, particularly in states in which Republicans capture state government but are unable to abolish public employees' collective bargaining rights outright. Such was the case in Tennessee, when PET and the Beacon Center worked to replace the state's bargaining law for teachers after the Republicans failed to repeal it. Currently, Worker's Choice legislation has been introduced in Missouri, which just became the twenty-eighth state to pass open-shop legislation.
Given the weakness of unions and the ascension of corporate power across the country, labor law reforms aimed at addressing the free-rider problem are more likely to benefit employers than workers. Shaun Richman imagines a future in which employers bargain multiple contracts with separate unions representing different workers in the same workforce, creating the conditions for union competition and employer "chaos."
Both PECCA and Worker's Choice point to more likely results: legislation in which an employer bargains with multiple unions through a unified negotiating process producing a single contract -- or legislation in which an employer can bargain with a single certified union to produce an agreement, but individual workers can opt out and seek their own personal contracts. Either way, the "chaos" for employers is neutralized, and possibilities for further divisions among workers open up. Also, in both cases, the union no longer suffers from the free-rider problem -- having to expend resources representing nonmembers -- but, as Hambright and Brown argue, in Tennessee, the divide-and-conquer problem was exacerbated when the union was no longer required to represent freeloaders. Worker's Choice legislation would likely have a similar result, since workers could use the union contract as a baseline for negotiating a personal contract with management, who would be incentivized to provide individual short-term perks, such as higher pay or better benefits, as part of a longer-term strategy of undermining union solidarity.
Given the weakness of unions and the ascension of corporate power across the country, labor law reforms aimed at addressing the free-rider problem are more likely to benefit employers than workers.
Ceding exclusive representation to "kick out the scabs," as Richman would have it, might be okay for a high-functioning local with high union density, but a union with 60 percent membership is likely to create an entrenched, adversarial minority. A union representing Geoghegan's "40 percent, or 30, or fewer" can easily succumb to being nothing more than a marginal minority. So long as unions are treated as third-party vendors of services, as Fisk and Sachs describe them, then it will be easy for yellow unions to provide the same insurance, professional development, and discounted movie tickets at a lower cost.
Members-only unionism might be a solution to the free-rider problem that unions face in an open-shop environment, but it is not a solution for the internal divisions between workers that unions must overcome if the labor movement is to grow. The labor movement is at its strongest when it is capable of fighting for all workers as a class, living up to the old refrain "an injury to one is an injury to all." By advocating for members-only unionism, labor activists run the risk of unwittingly weakening the labor movement by narrowing the scope of union solidarity to a smaller grouping of dues-paying members and setting the stage for yellow unions to pit workers against one another and create further divisions. If the source of a union's power is the ability of workers to take collective action on the job, then the Tennessee experience highlights the struggles that confront an increasingly divided and weakened labor movement.
 Thomas Geoghegan, Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement (New York, NY: The New Press, 2014), 223.
 Shaun Richman, "The Legal Argument That Could Overturn 'Right-to-work' Laws around the Country," Working In These Times, April 21, 2016.
 For example, see Geoghegan, Only One Thing Can Save Us; Shaun Richman, "The Promise and Peril of Members-only Unions," Working In These Times, November 4, 2015; and Shaun Richman, "How Friedrichs v. Calif. Teachers Association Could Actually Be a Boon for Union," Working In These Times, December 11, 2015, as well as Catherine Fisk, "Labor at a Crossroads: In Defense of Members-only Unionism," The American Prospect, January 15, 2015.
 Benjamin Sachs and Catherine Fisk, "Why Should Unions Negotiate for Workers Who Don't Pay Their Fair Share?" Los Angeles Times, July 9, 2014.
 See Vincent Vernuccio, "Worker's Choice: Freeing Unions and Workers from Forced Representation" produced by the Mackinac Center for Public Policy. Worker's Choice legislation maintains a limited form of exclusivity with no duty of fair representation: if a union is capable of signing up a majority of workers and winning a certification election, then the employer would only have to bargain with that one union. However, under this legislation, workers could also drop their membership in the union and seek their own individual private agreement with the company. The Mackinac Center is adamantly opposed to members-only unionization and multiple unions existing in a given workplace. By maintaining a "one or none" form of union representation, Worker's Choice legislation eliminates the potential headache of bargaining multiple contracts with multiple unions for the employer while undercutting any possible benefits that might be provided by union competition and creating an opportunity for the employer to provide concrete contractual perks to individuals who left the union and sought an individual contract.
 See Vincent Vernuccio, "Right to Work Isn't the Only Option: 'One or None' Also Gives Workers, Unions Choice."
 See Richman, "The Promise and Peril of Members-only Unions."
 Geoghegan's Only One Thing Can Save Us is full of praise for the German model of labor-management relations and argues passionately in support of attempts by U.S. labor unions to import it. For example, Geoghegan refers to the failed UAW vote at the Volkswagen plant in Chattanooga, which would likely have resulted in the first German-style works council in the United States, as "the vote in Chattanooga that could have changed the world" and "the end of Dixie as we know it," p. 219.
 For purposes of my definition, yellow unions can exist in the private sector (e.g., the American Council of Employees at Volkswagen) or the public (e.g., the Professional Educators of Tennessee); they can be led by right-wing corporate activists (PET) or by workers with guidance from pro-employer lawyers and consultants (ACE). They can be funded by the employer community (ACE) or not (PET). It is also possible for a legitimately independent union to work with a company to create a yellow union, such as the Independent Drivers Guild, which is a joint creation of a secret legal agreement between the Machinists Union District 15 and Uber. For background on ACE, see Chris Brooks, "Business-Backed 'Anti-Union Union' Falters at Volkswagen," Labor Notes, September 23, 2016; and on the Independent Drivers Guild, see Chris Brooks, "Putting the Con in the Gig Economy," Labor Notes, August 22, 2016.
 The law that provided collective bargaining rights to Tennessee teachers was the Education Professional Negotiations Act of 1978. Quote is from Rep. Glen Casada in Richard Locker, "Teacher Bargaining Hinges on GOP," The Commercial Appeal, May 20, 2011 at B1.
 See Andy Sher, "Teacher Union Bargaining Replaced by 'Conferencing'," Chattanooga Times Free Press, May 21, 2011.
 See Professional Educators Collaborative Conferencing Act, Tennessee Code Annotated §49-5-603.
 These seven are salaries or wages, grievance procedures, insurance, fringe benefits, working conditions, leave, and payroll deductions.
 The collective bargaining law allowed for both mediation and fact-finding/advisory arbitration, but made striking unlawful. Under PECCA, there is no legal mechanism to resolve impasse. Rather than imposing a contract, there simply is no contract, and the employer is free to act unilaterally through school board policy.
 The options provided are typically TEA, PET, or unaffiliated. If over 15 percent of teachers choose "unaffiliated," then the school board may appoint a teacher that is not a member of any organization to represent unaffiliated teachers in conferencing. There is the possibility that other competing organizations will be listed in certain counties and cities around the state, for example, the Memphis Shelby County Education Association recently disaffiliated from TEA and the two will vie for votes in the next PECCA election.
 Some IEAs do endorse and support candidates running for office, such as the Missouri State Teachers Association, but most do not.
 There are currently IEAs in Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Washington, and West Virginia. The IEAs in Georgia, Mississippi, Missouri, and Texas publicly claim to be the largest organization representing teachers in their respective states.
 The State Policy Network (SPN) is a national web of corporate-funded "think tanks" that publish dubious white papers and provide other forms of public support for the model legislation that ALEC members introduce; see "Exposed: The State Policy Network," by the Center for Media and Democracy. In 2014, one Republican Tennessee state senator bragged that twenty-two Tennessee legislators attended ALEC's annual "policy summit" in Washington, DC and were the biggest delegation from any state in the country. See Richard Locker, "Outside Influence: ALEC's Lawmaker Members Provide Unique Avenue to Policy," The Commercial Appeal, May 3, 2015. According to the PET website, from 1999 to 2001, ED John C. Bowman, "Chaired the Union Affairs Sub-committee of the American Legislative Exchange Council's Education Task Force."
 Explaining how Worker's Choice legislation would allow individual union members to opt out of the union and seek their own individual contract with an employer, Lee Schalk, spokesperson for the coalition, said, "Such an arrangement would overcome one of the main union arguments against 'right-to-work.' Namely, that it creates 'free riders' -- those who get the benefit of union representation without having to bear any costs." According to coalition polling, 67 percent of workers agree that non-union members should have to represent themselves in issues with management. Vincent Vernuccio is also quoted as a national spokesperson for the coalition. See Sean Higgins, "One in Four Union Members Favors Right-to-Work," Washington Examiner, August 15, 2016.
 In February 2011, the Tennessee Center for Policy Research bragged on its website that "TCPR Leads Charge against Teachers' Union" and that it had "laid the groundwork for the current efforts to terminate collective bargaining for teachers." The Tennessee Center for Policy Research changed its name to the Beacon Center in 2011.
 YouTube video in possession of author.
 See Andrea Zelinski, "TEA's Membership Down, PET's Up," TNReport, December 2011;and Tom Humphrey, "Tennessee Teacher Organizations Conduct Running Battle over Turf, Partisanship," Knoxnews, February 24, 2013.
 Constance Brown interview with author, 5/1/17. Carol Hambright interview with author, 4/17/17. The Polk County Education Association was a part of the district that I worked in as an organizer for the TEA. My work included supporting the Polk County Education Association during the conferencing process.
 See Missouri House Bill 637, sponsored by Rep. Steve Helms. Vincent Vernuccio testified in the Standing Committee on Economic Development on behalf of the bill.
 Richman, "The Promise and Peril of Members-only Unions."