OPINION OF THE COURT
LOCKE V. KARASS
555 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NO. 07-610
DANIEL B. LOCKE, et al., PETITIONERS
v. EDWARD A. KARASS, STATE CONTROLLER, et al.
on writ of certiorari to the united states court of
appeals for the first circuit
[January 21, 2009]
Justice Breyer delivered the
opinion of the Court.
The State of Maine requires
government employees to pay a service fee to the local union that
acts as their exclusive bargaining agent even if those employees
disagree with, and do not belong to, the union. This Court has held
that, in principle, the government may require this kind of payment
without violating the First Amendment. See,
e.g.,
Railway Employes v.
Hanson,
351 U. S. 225 (1956)
(upholding such an arrangement as constitutional);
Abood
v.
Detroit Bd. of Ed.,
431 U. S. 209 (1977)
(same);
Lehnert v.
Ferris Faculty Assn.,
500 U. S. 507 (1991)
(same). At the same time, the Court has considered the
constitutionality of charging for various elements of such a fee,
upholding the charging of some elements (
e.g., those
related to administering a collective-bargaining contract) while
forbidding the charging of other elements (
e.g., those
related to political expenditures). Compare,
e.g.,
Ellis v.
Railway Clerks,
466 U. S. 435 (1984),
with
Machinists v.
Street,
367 U. S. 740
(1961).
In this case, a local union charges
nonmembers a service fee that (among other things) reflects an
affiliation fee that the local union pays to its national union
organization. We focus upon one portion of that fee, a portion that
the national union uses to pay for litigation expenses incurred in
large part on behalf of
other local units. We ask whether
a local’s charge to nonmembers that reflects that element is
consistent with the First Amendment. And we conclude that under our
precedent the Constitution permits including this element in the
local’s charge to nonmembers as long as (1) the subject matter of
the (extra-local) litigation is of a kind that would be chargeable
if the litigation were local,
e.g., litigation
appropriately related to collective bargaining rather than
political activities, and (2) the litigation charge is reciprocal
in nature,
i.e., the contributing local reasonably expects
other locals to contribute similarly to the national’s resources
used for costs of similar litigation on behalf of the contributing
local if and when it takes place.
I
Maine has designated the Maine
State Employees Association (the local union) as the exclusive
bargaining agent for certain executive branch employees. A
collective-bargaining agreement between Maine and the local
requires nonmember employees whom the union represents to pay the
local union a “service fee.” And that service fee equals that
portion of ordinary union dues that is related to ordinary
representational activities,
e.g., collective bargaining
or contract administration activities. In calculating the fee, the
union starts with ordinary union dues and subtracts a sum
representing the pro rata cost of nonchargeable union activities
such as political, public relations, or lobbying activities.
The service fee includes a charge
that represents the affiliation fee the local pays to its national
union, the Service Employees International Union. The included
charge takes account of the affiliation fee, however, only insofar
as the fee helps to pay for the national’s activities that are of a
chargeable kind, such as collective-bargaining or contract
administration activities. The local does not charge nonmembers for
the portion of the affiliation fee that helps pay for the
national’s activities of a kind that would not normally be
chargeable, such as political, public relations, or lobbying
activities.
The local includes in the chargeable portion
of the affiliation fee an amount that helps the national pay for
litigation activities, some of which do not
directly
benefit Maine’s state employees’ local but rather directly benefit
other locals or the national organization itself. (For purposes of
simplicity, we shall call all this extraunit litigation “national
litigation.”) As is true of all other parts of the affiliation fee,
the local’s charge to nonmembers reflects these national litigation
costs only insofar as the national litigation concerns activities
that are of a chargeable kind. The local does not charge nonmembers
for the portion of national litigation costs that concerns
activities of a kind that would not normally be chargeable, such as
political, public relations, or lobbying activities.
Numbers may help illustrate the scope of the
issue. In 2005, the full service fee the local charged nonmembers
amounted to about 49% of a member’s ordinary union dues. (The
petitioners here, beneficiaries of grandfathering rules, paid a
half fee, amounting to about 24.5% of a member’s fee.) The full fee
for employees like the petitioners would have amounted to about
$9.70 per month. About $1.34 per month of that $9.70 reflected a
pro rata share of the portion of the national affiliation fee that
the local believed was chargeable. The portion of the $1.34 per
month affiliation fee charge that represented national litigation
costs—the cost here at issue—amounted to considerably less.
Although the amount at issue per nonmember may
be small, nonmembers believed the principle important. And in
December 2005, nonmembers challenged in arbitration several aspects
of the local’s service fee, including the element at issue here. In
2006, the arbitrator found all aspects of the service fee lawful.
Before the arbitrator reached his decision, however, the
petitioners, who are nonmembers of the local union, brought this
lawsuit in Maine’s Federal District Court also challenging various
aspects of the service fee, including this element. In particular,
they claimed that the First Amendment prohibits charging them for
any portion of the service fee that represents what we have called
“national litigation,”
i.e., litigation that does not
directly benefit the local. The District Court, finding no material
facts at issue, upheld this element of the fee. 425 F. Supp.
2d 137 (2006). The Court of Appeals for the First Circuit affirmed
the District Court’s determination. 498 F. 3d 49 (2007). Because of
uncertainty among the Circuits as to whether, or when, the
Constitution permits charging nonmembers for the costs of national
litigation, we granted certiorari. Compare
Otto v.
Pennsylvania State Educ. Assn.-NEA, 330 F. 3d 125 (CA3
2003), with
Pilots Against Illegal Dues v.
Air Line
Pilots Assn., 938 F. 2d 1123 (CA10 1991).
II
Prior decisions of this Court
frame the question before us. In
Hanson, Street, and
Abood, the Court set forth a general First Amendment
principle: The First Amendment permits the government to require
both public sector and private sector employees who do not wish to
join a union designated as the exclusive collective-bargaining
representative at their unit of employment to pay that union a
service fee as a condition of their continued employment. Taken
together,
Hanson and
Street make clear that the
local union cannot charge the nonmember for certain activities,
such as political or ideological activities (with which the
nonmembers may disagree). But under that precedent, the local can
charge nonmembers for activities more directly related to
collective bargaining. In such instances, the Court has determined
that the First Amendment burdens accompanying the payment
requirement are justified by the government’s interest in
preventing freeriding by nonmembers who benefit from the union’s
collective-bargaining activities and in maintaining peaceful labor
relations.
Street, 367 U. S., at 768–772;
Hanson,
351 U. S.
, at 233–238.
In
Abood, the Court
explained the basis for a First Amendment challenge to service fees
as follows: “To be required to help finance the union as a
collective-bargaining agent might well be thought . . . to
interfere in some way with an employee’s freedom to associate for
the advancement of ideas, or to refrain from doing so, as he sees
fit.” 431 U. S., at 222. But the
Abood Court rejected such
a challenge. It found that, “the judgment clearly made in
Hanson and
Street is that such interference as
exists is constitutionally justified by the legislative assessment
of the important contribution of the union shop to the system of
labor relations established by Congress.”
Ibid. The Court
added that, “ ‘furtherance of the common cause leaves some
leeway for the leadership of the group. As long as they act to
promote the cause which justified bringing the group together, the
individual cannot withdraw his support merely because he disagrees
with the group’s strategy.’ ”
Id., at 223 (quoting
Street, supra, at 778 (Douglas, J., concurring)).
In
Ellis and
Lehnert, the
Court refined the general First Amendment principle. In particular,
it refined the boundaries of
Abood’s constitutional
“leeway” by describing the nature of the cost elements that the
local, constitutionally speaking, could include, or which the local
could not constitutionally include, in the service fee. In 1984,
the Court wrote in
Ellis that service fees are
constitutionally permissible when they relate to the union’s duties
of “negotiating and administering a collective agreement and in
adjusting grievances and disputes.” 466 U. S.
, at 446–447
(citing
Railway Clerks v.
Allen,
373 U. S. 113, 121
(1963)). Accordingly, the Court explained, the local union could
charge the nonmember for union “expenditures [that] are necessarily
or reasonably incurred for the purpose of performing the duties of
an exclusive representative of the employees in dealing with the
employer on labor-management issues.” 446 U. S.
, at 448.
In doing so, the union could charge nonmembers for “the direct
costs of negotiating and administering a collective-bargaining
contract” and for “the expenses of activities or undertakings
normally or reasonably employed to implement or effectuate the
duties of the union as exclusive representative of the employees in
the bargaining unit.”
Ibid.
Applying this standard, the
Ellis
Court examined the particular service fee charges challenged in
that case. The Court held that the local union could charge
nonmembers for the costs of a national convention,
id., at
448–449; for the costs of social activities,
id., at
449–450; and for the costs of those portions of publications not
devoted to political causes,
id., at 450–451. Convention
expenses are chargeable, the Court explained, because, if a local
union is to function effectively, “it must maintain its corporate
or associational existence.”
Id., at 448.
The Court also held that the local union could
charge nonmembers for litigation expenses incidental to the local
union’s negotiation or administration of a collective-bargaining
agreement, fair representation litigation, jurisdictional disputes,
or other litigation normally conducted by an exclusive
representative.
Id., at 453. But the Court then said (in
language that the petitioners here emphasize) that “
expenses of
litigation not having such connection with the bargaining unit are
not to be charged to objecting employees.”
Ibid.
(emphasis added).
In 1991, the Court in
Lehnert again
described when an expense is chargeable. The Court said that a
chargeable expenditure must bear an appropriate relation to
collective-bargaining activity. 500 U. S.
, at 519. (Its
specific description of that relation is not at issue here. Compare
ibid., with
id., at 557–558 (Scalia, J.,
concurring in judgment in part and dissenting in part)). The Court
then considered one aspect of the matter here before us, the
chargeability of a local union’s payment to a national
organization, say, an affiliation fee. The Court assumed that, in
any given year, such a payment would primarily benefit other local
units or the national organization itself, but it would not
necessarily provide a direct benefit to the contributing local. The
petitioners in the case (nonmembers of a teacher’s union) argued
that the Constitution forbids a local union to charge nonmembers
for these activities,
i.e., for “activities that, though
closely related to collective bargaining generally, are not
undertaken directly on behalf of the bargaining unit to which the
objecting employees belong.”
Id., at 519.
The Court divided five to four on the general
affiliation fee matter. The majority of the Court rejected the
nonmembers’ claim. The Court noted that it had “never interpreted”
the chargeability test “to require a direct relationship between
the expense at issue and some tangible benefit to the dissenters’
bargaining unit.”
Id., at 522. Indeed, “to require so
close a connection would be to ignore the unified-membership
structure under which many unions, including those here, operate.”
Id., at 523. Rather, the affiliation relationship is
premised on the “notion that the parent will bring to bear its
often considerable economic, political, and informational resources
when the local is in need of them.”
Ibid. And that “part
of a local’s affiliation fee which contributes to the pool of
resources potentially available to the local is assessed for the
bargaining unit’s protection, even if it is not actually expended
on that unit in any particular membership year.”
Ibid.
The Court then held that “a local bargaining
representative may charge objecting employees for their pro rata
share of the
costs associated with otherwise chargeable
activities of its state and national affiliates, even if those
activities were not performed for the direct benefit of the
objecting employees’ bargaining unit.”
Id., at 524
(emphasis added). Of particular relevance here, the Court added
that the local unit need not “demonstrate a direct and tangible
impact upon the dissenting employee’s unit.” Nonetheless, it said,
there must be “some indication that the payment [say, to the
national affiliate] is for services that may ultimately inure to
the benefit of the members of the local union by virtue of their
membership in the parent organization.”
Ibid.
Finally, the
Lehnert Court turned to
the subject now before us, that of payment for national litigation.
On this point, the Court split into three irreconcilable factions.
A plurality of four wrote that, even though the union was “clearly
correct that precedent established through litigation on behalf of
one unit may ultimately be of some use to another unit,” it
nonetheless found “extraunit litigation to be more akin to lobbying
in both kind and effect.”
Id., at 528. The plurality added
that litigation is often “expressive.” It concluded that “[w]hen
unrelated to an objecting employee’s unit, such activities are not
germane to the union’s duties as exclusive bargaining
representative.”
Ibid.
The Member of the Court who provided the fifth
vote for the other portions of the Court’s opinion dissented from
the part of the opinion on national litigation. Justice Marshall
noted that the plurality’s discussion of national litigation costs
was dicta because no such costs were at issue in the case.
Id., at 544 (opinion concurring in part and dissenting in
part). Nevertheless, Justice Marshall characterized any rule that
found national litigation costs
per se nonchargeable as
“surely incorrect” and indicated such costs should be assessed
under the plurality’s own test,
i.e., whether the
litigation bears an appropriate relation to collective bargaining.
Id., at 546–547.
At the same time, four Members of the Court
agreed with the nonmembers that including national costs in the
service fee violates the First Amendment except when those costs
pay for specific services “actually provided” to the local.
Id., at 561 (Scalia, J., concurring in judgment in part
and dissenting in part). They thought that a local union cannot
charge nonmembers for national activities unless there is a direct
relationship between the expenses and “some tangible benefit to the
dissenters’ bargaining unit.”
Id., at 562 (internal
quotation marks omitted). In other words, the dissent expressly
rejected the majority’s chargeability test for national expenses.
But the dissent did not separately discuss national litigation
activities, perhaps because, as Justice Marshall pointed out, they
were not directly at issue in that case.
III
As a result of the
Lehnert Court’s failure to find a majority as to the
chargeability of national litigation expenses, the lower courts
have been uncertain about the matter. Compare
Otto, 330 F.
3d, at 138, with
Pilots Against Illegal Dues, 938 F. 2d,
at 1130–1131. Having examined the question further, we now believe
that, consistent with the Court’s precedent, costs of that
litigation are chargeable provided the litigation meets the
relevant standards for charging other national expenditures that
the
Lehnert majority enunciated. Under those standards, a
local union may charge a nonmember an appropriate share of its
contribution to a national’s litigation expenses if (1) the subject
matter of the national litigation bears an appropriate relation to
collective bargaining and (2) the arrangement is reciprocal—that
is, the local’s payment to the national affiliate is for “services
that may ultimately inure to the benefit of the members of the
local union by virtue of their membership in the parent
organization.” 500 U. S., at 524.
We reach this conclusion in part
because logic suggests that the same standard should apply to
national litigation expenses as to other national expenses. We can
find no significant difference between litigation activities and
other national activities the cost of which this Court has found
chargeable. We can find no sound basis for holding that national
social activities, national convention activities, and activities
involved in producing the nonpolitical portions of national union
publications all are chargeable but national litigation activities
are not. See
Ellis, 466 U. S.
, at
448–451
. Of course, a local nonmember presumably has the
right to attend, and consequently can directly benefit from,
national social and convention activities; and a local nonmember
can read, and benefit from, a national publication. But so can a
local nonmember benefit from national litigation aimed at helping
other units if the national or those other units will similarly
contribute to the cost of litigation on the local union’s behalf
should the need arise.
The petitioners’ arguments to the contrary
rest primarily upon their understanding of
Ellis and
Lehnert. Ellis, we must concede, sets forth certain kinds
of national litigation—for the most part directly related to a
local union’s particular interests—as chargeable; but it then goes
on to say, as we have earlier pointed out,
ante, at 6–7,
that
“expenses of litigation not having such a connection
with the bargaining unit are not to be charged to objecting
employees.” 466 U. S.
, at 453. Nonetheless, as the Court
of Appeals noted, the
Ellis Court focused upon a local
union’s payment of national litigation expenses
without any
understanding as to reciprocity. Indeed, Justice Kennedy
pointed out in his
Lehnert dissent, “
Ellis . . .
contains no discussion of whether a bargaining unit might choose to
fund litigation . . . through a cost sharing arrangement under the
auspices of the affiliate.” 500 U. S.
, at 564 (opinion
concurring in judgment in part and dissenting in part).
Ellis nowhere explains
why reciprocal litigation
funding arrangements would fail to benefit a local union. Hence,
Ellis does not answer the question presented here.
We must also concede that a plurality in
Lehnert wrote that national litigation expenses were not
chargeable “[w]hen unrelated to an objecting employee’s unit.” 500
U. S., at 528. But, again, reciprocal litigation funding was not
before the Court; hence the plurality could not (and did not)
decide whether an understanding as to reciprocity produced the
relationship necessary for chargeability. Regardless, a plurality
does not speak for the Court as a whole.
Nor can one simply add together the four
Lehnert dissenters and the four Members of the plurality
in an effort to find a majority of Justices who hold the
petitioners’ view. That is because the
Lehnert majority,
speaking for the Court, adopted a more liberal standard of
chargeability than the standard embraced by the dissent. And the
question here is whether
that standard permits charging
nonmembers for national litigation expenses. There was no majority
agreement in
Lehnert about the answer to this last
mentioned question. The best we can do for the petitioners is to
find
Lehnert ambiguous on the point at issue.
IV
Applying
Lehnert’s
standard to the national litigation expenses here at issue, we find
them chargeable. First, the
kind of national litigation
activity for which the local charges nonmembers concerns only those
aspects of collective bargaining, contract administration, or other
matters that the courts have held chargeable.
Ellis,
supra, at 446–447. The lower courts found (and the petitioners
here do not dispute) that the local charges nonmembers
only for those national litigation activities that, in
respect to subject matter, “were comparable to those undertaken” by
the local and which the local “deemed chargeable” in its
calculation of the “service fee.” 498 F. 3d, at 52, 64–65. And
no one here denies that under
Lehnert this
kind
of activity bears an appropriate relation to collective bargaining.
See,
e.g.,
Lehnert, 500 U. S.
, at 519;
see also
id., at 524 (“[A] local bargaining representative
may charge objecting employees for their pro rata share of
costs associated with otherwise chargeable activities of its state
and national affiliates … ”).
Second, the
location of
the litigation activity is at the
national (or extraunit),
not the local, level. But, as we have just said (under
Lehnert), activity at the national level is chargeable as
long as the charges in question are “for services that may
ultimately inure to the benefit of the members of the local union
by virtue of their membership in the parent organization.”
Ibid.
The Court of Appeals treated the litigation
charge at issue as reciprocal in nature, and concluded the District
Court must have done so as well. See 498 F. 3d, at 64–65. The
local union here says that the payment of its affiliation fee gives
locals in general access to the national’s financial
resources—compiled via contributions from various locals—“which
would not otherwise be available to the local union when needed to
effectively negotiate, administer or enforce the local’s collective
bargaining agreements.” Brief for Respondents 18–19. The resources
in question include resources related to litigation. No one claims
that the national would treat the local union before us any
differently, in terms of making these resources available, than the
national would treat any other local. The petitioners do not
suggest the contrary. And we consequently conclude, as did the
lower courts, that the existence of reciprocity is assumed by the
parties and not here in dispute.
The record then leads us to find that the
national litigation expenses before us are both appropriately
related to collective bargaining and reciprocal. Consequently,
consistent with our precedent, those expenses are chargeable. The
similar determination of the Court of Appeals is affirmed.
It is so ordered.
Comments
Be the first to comment
Leave a Comment