884
Breyer, J., dissenting
quent § 1983 action"). Cf. Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) (administrative agency, through its interpretations, may have the "power to persuade, if lacking power to control"). In other words, the objecting dissenter, though briefly delayed, could proceed in court and on a clean slate. See Hensler, Court-Ordered Arbitration: An Alternative View, U. Chi. Legal Forum 399, 401 (1990) (describing differences between mandatory non-binding arbitration over agency fee calculations, and traditional mandatory binding arbitration).
From the courts' perspective too, nonbinding arbitration can prove helpful. Insofar as it settles matters to the parties' satisfaction, it avoids unnecessary, perhaps time-consuming, judicial investigation of highly complex union accounts and expense allocations. Cf. Allen, 373 U. S., at 122 (describing difficulties surrounding "judicially administered relief" for agency fee objectors, as compared with "internal union remedy"); Abood, 431 U. S., at 240 (same).
The upshot is that the "arbitration first" rule "prevent[s] compulsory subsidization of ideological activity" without unduly "restricting the Union's ability" to collect a legitimate agency fee. Consequently, neither the First Amendment, nor any statute, as interpreted by this Court, prohibits the Union's insistence upon that rule.
I fear that the majority is led to a different conclusion through use of analogies that, in my view, do not govern the circumstances before us. First, the Court analogizes the arbitration at issue here to binding arbitration often found in contracts, including labor contracts, where arbitration is legally anchored in the consent of the parties. Ante, at 876. But "consent" is not relevant to the legal justification for the "arbitration first" rule before us. Rather, that rule finds its legal anchor in the Union's legal authority (indeed, obligation) under Hudson to impose internal procedures that permit collection of agency fees, without undue infringement of objectors' constitutional rights. I have explained above
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