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DECISION: Union rebate scheme,
whereby union collects dues from dissenting employees, uses part of dues for
objectionable purposes, and later pays rebate, held inadequate under Railway
Labor Act.
SUMMARY: Present and former clerical
employees of an airline which had a union shop agreement with the union
representing such employees, brought separate suits, later consolidated, against
their national union, its board of adjustment, and three locals, alleging the
inadequacy of the union's rebate scheme respecting the use of objecting
employees' dues for union political or ideological activities, and the
illegality of burdening objecting employees with six specific union
expenses--the quadrennial convention, litigation not involving the negotiation
of agreements or settlement of grievances, union publications, social
activities, death benefits for employees, and general organizing efforts. The
United States District Court for the Southern District of California granted
summary judgment to the employees on the question of liability regarding the six
expenses at issue, and after finding the union's rebate program acceptable,
ordered refunds for the expenditures at issue. The Court of Appeals for the
Ninth Circuit, affirming in part and reversing in part, held that the union's
rebate plan was adequate, but that because the challenged six activities
ultimately benefited the union's collective bargaining efforts, the union could
finance them with dues collected from objecting employees
(685
F2d 1065).
On certiorari, the United States Supreme Court affirmed in part, reversed in
part, and remanded. In an opinion by White, J., joined by Burger, Ch. J., and
Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O'Connor, JJ., and joined
in part (as to holdings 1, 2, 3(b), 3(c), 4(a), and 4(b) below) by Powell, J.,
the court held that (1) the union's pure rebate program was inadequate, (2)
45
USCS 152, Eleventh, does not allow the union to charge objecting employees
for organizing expenses or for the expenses of litigation unconnected to the
bargaining unit, (3)
45
USCS 152, Eleventh, does allow the union to charge objecting employees for
expenditures (a) on quadrennial national conventions, (b) on social activities,
and (c) respecting a monthly magazine, but only insofar as the magazine reported
about those activities the union could charge the dissenters, and (4) there was
no First Amendment cause of action with respect to the expenditures for (a)
social activities, (b) the monthly magazine, and (c) the conventions.
Powell, J., concurred in part and dissented in part, stating that, with respect
to the challenged quadrennial convention expenditure by the union (1) the union
had not shown, and the facts did not indicate, that all of the expenses of the
convention were incurred for the purpose of performing the duties of an
exclusive collecive bargaining representative, and (2) since some costs for
political activities at the convention were apparently incurred, it was
unnecessary to reach the First Amendment question in the case because under that
Amendment, the compulsory dues of nonmember employees may not be used to further
political causes with which nonmembers may disagree.
LEXIS
HEADNOTES - Classified to U.S. Digest Lawyers' Edition:
LABOR §12.7
union dues -- adequacy of rebate program --
Headnote: [1A] [1B] [1C]
A union's pure rebate scheme, under which the union collects the full amount of
a protesting employee's dues, uses part of the dues for objectionable purposes,
and pays a rebate a year later, is inadequate; under such a scheme, a union
effectively charges employees for activities that are outside the scope of the
authority contained in
45
USCS 152, Eleventh, which permits the union shop.
LABOR §12.7
union dues -- expenditure -- organizing expenses --
Headnote: [2A] [2B]
45
USCS 152, Eleventh, which authorizes union shops, does not allow a union to
charge objecting employees, through their union dues, for the union's organizing
expenses.
LABOR §12.7
union dues -- expenditure -- litigation expenses --
Headnote: [3A] [3B]
Pursuant to
45
USCS 152, Eleventh, which authorizes union shops, the expenses of litigation
incident to negotiating and administering a collective bargaining contract or to
settling grievances and disputes arising in the bargaining unit, as well as the
expenses of fair representation litigation arising within the unit,
jurisdictional disputes with other unions, and any other litigation before
agencies or in the courts that concerns bargaining unit employees and is
normally conducted by the exclusive representative, are chargeable, through
union dues, to all employees, including those objecting to the expense, but the
expenses of litigation not having such a connection with the bargaining unit are
not to be charged to objecting employees.
APPEAL AND ERROR §1662
COURTS §762
illegal use of union dues -- claims for damages and injunction -- effect of
decertification --
Headnote: [4]
A claim for damages, in the form of interest on money illegally held for a
period of time, by objecting employees with respect to their union's rebate
program is properly before the United States Supreme Court and is not moot, even
though the union is decertified during the course of litigation as bargaining
representative of the employees; however, a claim for an injunction against the
rebate scheme is moot by virtue of the decertification.
STATUTES §107
construction -- arisidance of unconstitutionality --
Headnote: [5]
When the constitutionality of a statute is challenged, the United States Supreme
Court will first ascertain whether the statute can be reasonably construed to
avoid the constitutional difficulty.
LABOR §12.7
union dues -- expenditure -- dissenting employees -- standard to determine who
bears expense --
Headnote: [6]
With respect to defining the line between union expenditures that all employees
in a union shop, as authorized under
45
USCS 152, Eleventh, must help defray and those that are not sufficiently
related to collective bargaining to justify their being imposed on dissenters,
when dissenting employees object to being burdened with particular union
expenditures, the test must be whether the challenged expenditures 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; under this standard, objecting employees may be
compelled to pay their fair share of not only the direct costs of negotiating
and administering a collective bargaining contract and of settling grievances
and disputes, but also 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.
LABOR §12.7
union dues -- expenditure -- convention expenses --
Headnote: [7]
Under
45
USCS 152, Eleventh, which authorizes union shops, union expenditures on a
quadrennial national convention at which members elect officers, establish
bargaining goals and priorities, and formulate overall union policy are
expenditures that all employees, including dissenters, must help defray through
their union dues; such conventions are essential to the union's discharge of its
duties as bargaining agent, and as such, are chargeable to all employees.
(Powell, J., dissented from this holding.)
LABOR §12.7
union dues -- expenditure -- social activities --
Headnote: [8]
Pursuant to
45
USCS 152, Eleventh, which authorizes union shops, a de minimis expenditure
by a union on refreshments for union business meetings and on occasional social
activities is an expenditure that all employees, including dissenters, must help
defray through their union dues; although these affairs are not central to
collective bargaining, they are sufficiently related to it to be charged to all
employees.
LABOR §12.7
union dues -- expenditure -- union publications --
Headnote: [9]
Under
45
USCS 152, Eleventh, which authorizes union shops, dissenting employees are
chargeable, through their union dues, with expenditures by a union with respect
to a monthly magazine, but only insofar as the magazine reports to the
dissenters about those activities the union can charge them for doing and not
insofar as it reports on activities for which the union cannot spend dissenters'
dues.
APPEAL AND ERROR §1662
LABOR §12.7
challenge to use of union dues -- death benefits -- effect of decertification --
Headnote: [10]
A challenge by dissenting employees to an expenditure by their union for the
payment of death benefits will not be ruled upon by the United States Supreme
Court where the union is no longer the exclusive bargaining agent and the
employees are no longer involved in the payment program; such employees are not
entitled to a refund of their past contributions because, even if they had a
right to an injunction to prevent future collections from them for death
benefits, they remained entitled to benefits as long as they paid dues and
therefore enjoyed a form of insurance for which the union collected a premium.
CONSTITUTIONAL LAW §956
use of union dues -- First Amendment -- restrictions --
Headnote: [11]
The First Amendment limits the uses to which a union can put funds obtained from
dissenting employees.
CONSTITUTIONAL LAW §956
LABOR §12.7
use of union dues -- social activities -- First Amendment limitations --
Headnote: [12]
Dissenting employees do not have a First Amendment complaint with respect to de
minimis expenditures by a union on refreshments for union business meetings and
occasional social activities, which are chargeable to dissenting employees
through their union dues pursuant to
45
USCS 152, Eleventh, since such expenditures do not increase the infringement
of the First Amendment rights of dissenting employees that already results from
compelled contribution to the union.
CONSTITUTIONAL LAW §956
LABOR §12.7
use of union dues -- union publications -- First Amendment limitations --
Headnote: [13]
Dissenting employees do not have a First Amendment complaint with respect to
expenditures by a union regarding a monthly magazine that are chargeable to
dissenting employees through their union dues pursuant to
45
USCS 152, Eleventh, since such expenditures increase only slightly the
accepted infringement of the First Amendment rights of dissenting employees that
already results from compelled contribution to the union, and since the
infringement is justified by the governmental interests behind the union shop.
CONSTITUTIONAL LAW §956
LABOR §12.7
use of union dues -- conventions -- First Amendment limitations --
Headnote: [14]
Dissenting employees do not have a First Amendment complaint with respect to
expenditures by a union on quadrennial national conventions, which are
chargeable to dissenting employees through their union dues pursuant to
45
USCS 152, Eleventh, since such expenditures increase only slightly the
accepted infringement of the First Amendment rights of dissenting employees that
already results from compelled contribution to the union, and since the
infringement is justified by the governmental interest behind the union shop.
(Powell, J., dissented from this holding.)
SYLLABUS: Section 2, Eleventh of
the Railway Labor Act permits a union and an employer to require all employees
in the relevant bargaining unit to join the union as a condition of continued
employment. The collective-bargaining agreement between respondent national
union and an airline required that all of the airline's clerical employees join
the union or pay agency fees equal to members' dues. Petitioners, present or
former clerical employees who objected to the use of their compelled dues or
fees for specified union activities, filed separate suits (later consolidated)
in Federal District Court against respondents -- the national union, its board
of adjustment, and three locals -- who conceded that, as was held in
Machinists
v. Street, 367 U.S. 740, [***2]
the statutory authorization of the union shop did not permit a union to spend an
objecting employee's money for union political or ideological activities, and
who had adopted a rebate program under which objecting employees were ultimately
reimbursed for their shares of such expenditures. The parties disagreed about
the adequacy of the rebate scheme, and about the legality of charging objecting
employees with union expenses for (1) the national union's quadrennial Grand
Lodge convention, (2) litigation not involving the negotiation of agreements or
settlement of grievances, (3) union publications, (4) social activities, (5)
death benefits for employees, and (6) general organizing efforts. Granting
summary judgment for petitioners on the question of liability concerning the six
expenses at issue, the court, after a trial on damages, held that the union's
existing rebate program adequately protected employees' rights, and ordered
refunds for the expenditures at issue. Affirming in part and reversing in part,
the Court of Appeals upheld the union's rebate plan, but ruled that, because the
six challenged activities ultimately benefited the union's collective-bargaining
efforts, it could
[***3] finance them with dues
collected from objecting employees.
Held:
1. Petitioners' challenge to the rebate program is properly before the Court.
Although the claim for an injunction against the program would appear to be moot
because the union has been decertified as the bargaining representative of the
airline's clerical employees, petitioners' additional claim for money damages,
which would be in the form of interest on money illegally held for a period of
time, remains in the case. Pp. 441-443.
2. The union's pure rebate approach for refunding the portion of dues expended
for improper purposes to which the employee objects is inadequate. Even if the
union were to pay interest on the amount refunded, it would still obtain an
involuntary loan for purposes to which the employee objected. Given the
existence of acceptable alternatives, such as advance reduction of dues, a union
cannot be allowed, on the ground of administrative convenience, to commit
dissenters' funds to improper uses even temporarily. Pp. 443-444.
3. While petitioners' primary submission is that the use of their fees to
finance the challenged activities violated the First Amendment, the initial
inquiry is
[***4] whether the statute permits
the union to charge petitioners for any of the challenged expenditures. The
purpose of § 2, Eleventh in authorizing the union shop was to make it possible
to require all members of a bargaining unit to pay their fair share of the
union's costs of performing the function of exclusive bargaining agent, thus
eliminating "free rider" employees on whose behalf the union was
obliged to perform its statutory functions, but who refused to contribute to the
cost thereof. When employees object to being burdened with particular union
expenditures, the test must be whether the challenged expenditures 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. Pp. 444-448.
4. With regard to the specific union expenses challenged here, under the
applicable test petitioners must help defray the costs of the national union's
conventions, at which the members elect officers, establish bargaining goals,
and formulate overall union policy. Such conventions are essential to the
union's discharge of its duties as bargaining agent. Petitioners may
[***5]
also be charged for union social activities, which, though not central to
collective bargaining, are sufficiently related to it to be charged to all
employees. The statute also allows the union to charge objecting employees for
its monthly magazine insofar as it reports to them about those activities the
union can charge them for doing, but not insofar as the magazine reports on
activities for which the union cannot spend dissenters' funds. Section 2,
Eleventh does not authorize charging objecting employees for the union's general
organizing efforts, or for expenses of litigation that is not incident to
negotiating and administering the contract or to settling grievances and
disputes arising in the bargaining unit. The question whether the statute
authorizes compelled participation in a death benefit program need not be ruled
upon, because the union is no longer the exclusive bargaining agent and
petitioners are no longer involved in the program. Even assuming that
petitioners would have a right to an injunction against future collections for
death benefits, they are not entitled to a refund of past contributions since
they had enjoyed a form of insurance for which the union collected
[***6]
a premium. Pp. 448-455.
5. There is no First Amendment barrier with regard to the three challenged
activities for which the statute allows the union to use petitioners'
contributions. The significant interference with First Amendment rights
resulting from allowing the union shop is justified by the governmental interest
in industrial peace. Forced contributions for union social affairs do not
increase the infringement of the employee's First Amendment rights. And while
both union publications and conventions have direct communicative content, there
is little additional infringement of First Amendment rights, and none that is
not justified by the governmental interests behind the union shop itself. Pp.
455-457.
COUNSEL: Michael E. Merrill argued
the cause and filed briefs for petitioners.
Laurence Gold argued the cause for respondents. With him on the brief were
George Kaufmann and James Coppess. *
* Briefs of amici curiae urging reversal were filed for the Legal Foundation of
America by David Crump; and for the Mid-Atlantic Legal Foundation et al. by
Myrna P. Field.
Briefs of amici curiae urging affirmance were filed for the American Federation
of Labor and Congress of Industrial Organizations by J. Albert Woll and Marsha
Berzon; and for the National Education Association by Robert H. Chanin.
Briefs of amici curiae were filed for the State Bar of California by Seth M.
Hufstedler and Robert S. Thompson; and for Eddie Keller et al. by Ronald A.
Zumbrun and Anthony T. Caso.
[***7]
JUDGES: WHITE, J., delivered the
opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN,
REHNQUIST, STEVENS, and O'CONNOR, JJ., joined, and in Parts I, II, III, IV, and
V (except Subdivision 1) of which POWELL, J., joined. POWELL, J., filed an
opinion concurring in part and dissenting in part, post, p. 457.
OPINIONBY: WHITE
OPINION: [*438]
[**1887] JUSTICE WHITE delivered the opinion
of the Court.
In 1951, Congress amended the Railway Labor Act (Act or RLA) to permit what it
had previously prohibited -- the union shop.
Section
2, Eleventh of the Act permits a union and an employer to require all employees
in the relevant bargaining unit to join the union as a condition of continued
employment.
45
U. S. C. § 152, Eleventh. n1 In
Machinists
v. Street, 367 U.S. 740 (1961), the Court held that
the
Act does not authorize a union to spend an objecting employee's money to support
political causes. The use of
[***8] employee
funds for such ends is unrelated to Congress' desire to eliminate "free
riders" and the resentment they provoked.
Id.,
at 768-769. The Court did not express a view as to "expenditures for
activities in the area between the costs which led directly to the complaint as
to 'free riders,' and the expenditures to support
[*439]
union political activities."
Id.,
at 769-770, and n. 18. Petitioners challenge just such expenditures.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1
Section
2, Eleventh provides in relevant part:
"Eleventh. Notwithstanding any other provisions of this Act, or of any
other statute or law of the United States, or Territory thereof, or of any
State, any carrier or carriers as defined in this Act and a labor organization
or labor organizations duly designated and authorized to represent employees in
accordance with the requirements of this Act shall be permitted --
"(a) to make agreements, requiring, as a condition of continued employment,
that within sixty days following the beginning of such employment, or the
effective date of such agreements, whichever is the later, all employees shall
become members of the labor organization representing their craft or class:
Provided,
That no such agreement shall require such condition of employment with respect
to employees to whom membership is not available upon the same terms and
conditions as are generally applicable to any other member or with respect to
employees to whom membership was denied or terminated for any reason other than
the failure of the employee to tender the periodic dues, initiation fees, and
assessments (not including fines and penalties) uniformly required as a
condition of acquiring or retaining membership.
"(b) to make agreements providing for the deduction by such carrier or
carriers from the wages of its or their employees in a craft or class and
payment to the labor organization representing the craft or class of such
employees, of any periodic dues, initiation fees, and assessments (not including
fines and penalties) uniformly required as a condition of acquiring or retaining
membership. . . ." 64 Stat. 1238,
45
U. S. C. § 152, Eleventh.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***9]
I
In 1971, respondent Brotherhood of Railway, Airline and Steamship Clerks (union
or BRAC) and Western Airlines implemented a previously negotiated agreement
requiring that all Western's clerical employees join the union within 60 days of
commencing employment. As the agreement has been interpreted, employees need not
become formal members of the union, but must pay agency fees equal to members'
dues. Petitioners are present or former clerical employees of Western who
objected to the use of their compelled dues for specified union activities. n2
They do not contest the legality of the union shop as such, nor could they. See
Railway
Employees v. Hanson, 351 U.S. 225 (1956). They do contend,
however,
[**1888] that they can be compelled
to contribute no more than their pro rata share of the expenses of negotiating
agreements and settling grievances with Western Airlines. n3 Respondents -- the
national union, its board of adjustment, and three locals -- concede that the
statutory authorization of the union shop does not permit the use of
petitioners' contributions
[*440] for union
political or ideological activities, see
Machinists
v. Street, supra, [***10] and
have adopted a rebate program covering such expenditures. The parties disagree
about the adequacy of the rebate scheme, and about the legality of burdening
objecting employees with six specific union expenses that fall between the
extremes identified in
Hanson and
Street: the quadrennial
Grand Lodge convention, litigation not involving the negotiation of agreements
or settlement of grievances, union publications, social activities, death
benefits for employees, and general organizing efforts.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 This case is the consolidation of two separate suits, one brought by present
and former Western employees who did not join the union,
Ellis v.
Railway
Clerks, the other a class action brought by employees who did,
Fails
v.
Railway Clerks.
n3 Each class member sent the following letter to the union:
"As an employee of Western Airlines, I feel that the Brotherhood of
Railway, Airline and Steamship Clerks does not properly represent my interests
and I protest the compulsory 'agency fee' I must pay the Brotherhood of Railway,
Airline and Steamship Clerks, in order to retain my job. In addition, I hereby
protest the use of these fees for any purpose other than the cost of collective
bargaining and specifically protest the support of Legislative goals, candidates
for political office, political efforts of any kind or nature, ideological
causes, and any other activity which is not a direct cost of collective
bargaining on my behalf. I demand an accounting and refund from the Brotherhood
of Railway, Airline and Steamship Clerks of all fees exacted from me by the
so-called 'agency fee.'" 3 App. 234-235.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***11]
The District Court for the Southern District of California granted summary
judgment to petitioners on the question of liability. Relying entirely on
Street,
it found that the six expenses at issue here, among others, were all
"non-collective bargaining activities" that could not be supported by
dues collected from protesting employees. n4 After a trial on damages, the court
concluded that with regard to political and ideological activities, the union's
existing rebate program, under which objecting employees were ultimately
reimbursed for their share of union expenditures on behalf of political and
charitable causes, was a good-faith effort to comply with legal requirements and
adequately protected employees' rights. Relying on exhibits presented by
respondents, the court ordered refunds of approximately 40% of dues paid for the
expenditures at issue here. It also required that protesting employees' annual
dues thereafter be reduced by the amount spent on activities not chargeable to
them during the prior year. The court seems to have envisioned that this scheme
would supplant the already-existing rebate scheme, for it included political
expenditures among those to be figured
[***12]
into the dues reduction.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 The court certified this ruling for interlocutory appeal under
28
U. S. C. § 1292(b). The Court of Appeals for the Ninth Circuit did not
permit the appeal.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Court of Appeals for the Ninth Circuit affirmed in part and reversed in
part.
685
F.2d 1065 (1982). It held that
[*441] the
union's rebate plan was adequate even though it allowed the union to collect the
full amount of a protesting employee's dues, use part of the dues for
objectionable purposes, and only pay the rebate a year later. It found
suggestions in this Court's cases that such a method would be acceptable, and
had itself approved the rebate approach in an earlier case. The opinion did not
address the dues reduction scheme imposed by the District Court.
Id.,
at 1069-1070. Turning to the question of permissible expenditures, the Court
of Appeals framed "the relevant inquiry [as] whether a particular
challenged expenditure is germane to the union's work
[***13]
in the realm of collective bargaining. . . . [That is, whether it] can be seen
to promote, support or maintain the union as an effective collective bargaining
agent."
Id.,
at 1072, 1074-1075. The court found that each of the challenged activities
strengthened the union as a whole and helped it to run more smoothly, thus
making it better able to
[**1889] negotiate
and administer agreements. Because the six activities ultimately benefited the
union's collective-bargaining efforts, the union was free to finance them with
dues collected from objecting employees. One judge dissented, arguing that these
were all "institutional expenses" that objecting employees cannot be
forced to pay.
Id.,
at 1075-1076.
[1A]
[2A]
[3A]
Petitioners sought review of the Court of Appeals' ruling on permissible
expenses and the adequacy of the rebate scheme. We granted certiorari.
460
U.S. 1080 (1983). We hold that
[***14] the
union's rebate scheme was inadequate and that the Court of Appeals erred in
finding that the RLA authorizes a union to spend compelled dues for its general
litigation and organizing efforts.
II
A
[4]
There is some question as to whether petitioners' challenge to the rebate
program is properly before us. In 1980, within a month of the entry of the
District Court's judgment, the
[*442] union
was decertified as the bargaining representative of Western Airlines' clerical
employees. Thus, none of the petitioners is presently represented by the union
or required to pay dues to it. Petitioners' claim for an injunction against the
rebate scheme would therefore appear to be moot. But petitioners also sought
money damages, n5 and damages for an illegal rebate program would necessarily
have been in the form of interest on money illegally held for a period of time.
That claim for damages remains in the case. The amount at issue is undeniably
minute. But
as
long as the parties have a concrete interest, however
[***15]
small, in the outcome of the litigation, the case is not moot.
Powell
v. McCormack, 395 U.S. 486, 496-498 (1969).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 In their complaints, petitioners made a generalized claim for "monetary
damages for injuries sustained as a result of defendants' unlawful and
unwarranted interference with and deprivation of their constitutional, civil,
statutory and contractual rights." 1 App. 13.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondents argue that the Court of Appeals erred in addressing the validity of
the union's rebate scheme because it had been supplanted by the District Court's
order, from which the union had not appealed. They also contend that, for the
same reason, the adequacy of the old system is "not justiciable" and
"academic." Brief for Respondents 11, and n. 5. We disagree. The
District Court specifically held that the rebate scheme vindicated the
dissenting employees' rights with regard to political and ideological
activities, and the Court of Appeals affirmed. The Court of Appeals also held
that the expenditures
[***16] the union had
included in the rebate scheme were the only ones to which protesting employees
could not be compelled to contribute, thereby eliminating the basis for the
District Court's additional order that the union reduce dues prospectively. In
any event, even though the District Court required a dues reduction scheme for
the future, petitioners did not receive damages for the prior allegedly
inadequate rebate program, precisely because
[*443]
both lower courts upheld it. In these circumstances, the issue is properly
before us. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Not before us is the adequacy of the dues reduction scheme imposed by the
District Court. The issue is not among the questions presented by the petition
for certiorari, the Court of Appeals did not address it, and the record does not
reveal whether the scheme was ever implemented.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
B
[1B]
As the Court of Appeals pointed out, there is language in this Court's cases to
support the validity of a
[***17] rebate
program.
Street suggested "restitution to each individual employee
of that portion of his money which the union expended, despite his notification,
for the political causes to which he had advised the union he was opposed."
367
U.S., at 775. See also
Abood
v. Detroit Board of Education, 431 U.S. 209, 238 (1977). On the
[**1890] other hand, we suggested a more
precise advance reduction scheme in
Railway
Clerks v. Allen, 373 U.S. 113, 122 (1963), where we described
a "practical decree" comprising a refund of exacted funds in the
proportion that union political expenditures bore to total union expenditures
and the reduction of future exactions by the same proportion. Those opinions did
not, nor did they purport to, pass upon the statutory or constitutional adequacy
of the suggested remedies. n7 Doing so now, we hold that the pure rebate
approach is inadequate.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 The courts that have considered this question are divided. Compare
Robinson
v. New Jersey, 547 F.Supp. 1297 (NJ 1982); School
Committee v. Greenfield Education Assn., 385 Mass. 70, 431 N. E.
2d 180 (1982); Robbinsdale Education Assn. v.
Robbinsdale
Federation of Teachers, 307 Minn. 96, 239 N. W. 2d 437, vacated and
remanded,
429
U.S. 880 (1976) (all holding or suggesting that such a scheme does not
adequately protect the rights of dissenting employees), with
Seay
v. McDonnell Douglas Corp., 533 F.2d 1126, 1131 (CA9 1976); Opinion
of the Justices, 401 A. 2d 135 (Me. 1979); Association
of Capitol Powerhouse Engineers v. Division of Bldg. & Grounds,
89 Wash. 2d 177, 570 P. 2d 1042 (1977) (all upholding rebate programs). See
generally
Perry
v. Local 2569, 708 F.2d 1258, 1261-1262 (CA7 1983).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***18]
[*444]
[1C]
By exacting and using full dues, then refunding months later the portion that it
was not allowed to exact in the first place, the union effectively charges the
employees for activities that are outside the scope of the statutory
authorization. The cost to the employee is, of course, much less than if the
money was never returned, but this is a difference of degree only. The harm
would be reduced were the union to pay interest on the amount refunded, but
respondents did not do so. Even then the union obtains an involuntary loan for
purposes to which the employee objects.
The only justification for this union borrowing would be administrative
convenience. But there are readily available alternatives, such as advance
reduction of dues and/or interest-bearing escrow accounts, that place only the
slightest additional burden, if any, on the union. Given the existence of
acceptable alternatives, the union cannot be allowed to commit dissenters' funds
to improper uses even temporarily. A rebate scheme reduces but does not
eliminate the statutory violation.
III
[5]
[***19] Petitioners' primary submission is
that the use of their fees to finance the challenged activities violated the
First Amendment. This argument assumes that the Act allows these allegedly
unconstitutional exactions.
When
the constitutionality of a statute is challenged, this Court first ascertains
whether the statute can be reasonably construed to avoid the constitutional
difficulty.
E.
g., Califano v. Yamasaki, 442 U.S. 682, 692-693 (1979); Ashwander
v. TVA, 297 U.S. 288, 347 (1936) (concurring opinion);
Crowell
v. Benson, 285 U.S. 22, 62 (1932). As the Court noted when faced
with a similar claim in
Street, "the restraints against
unnecessary constitutional decisions counsel against" addressing
petitioners' constitutional claims "unless we must conclude that Congress,
in authorizing a union shop under § 2, Eleventh also meant that the labor
organization receiving an employee's money should be free, despite that
employee's objection, to
[*445] spend his
money" for these activities.
367
U.S., at 749. [***20] We therefore first
inquire whether the statute permits the union to charge petitioners for any of
the challenged expenditures.
IV
Section
2, Eleventh contains only one explicit limitation to the scope of the union shop
agreement: objecting employees may not be required to tender "fines and
penalties" normally required of union members.
45
U. S. C. § 152, Eleventh. n8 If there were
[**1891]
nothing else, an inference could be drawn from this limited exception that all
other payments obtained from voluntary members can also be required of those
whose membership is forced upon them. Indeed, several witnesses appearing before
the congressional Committees objected to the absence of any explicit limitation
on the scope or amount of fees and dues that could be compelled. n9 That
Congress
[*446] enacted the provision over
these objections arguably indicates that it was willing to tolerate broad
exactions from objecting employees.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Senator Hill, one of the bill's sponsors, explained on the Senate floor that
"'assessments' is not to include 'fines and penalties.' Thus if an
individual member is fined for some infraction of the union bylaws or
constitution, the union cannot obtain his discharge under a union-shop agreement
in the event that the member refuses or fails to pay the fine imposed." 96
Cong. Rec. 15736 (1950).
[***21]
n9 Jacob Aronson, vice president of the New York Central Railroad, complained
that "the proposal does not even limit the number, kind, or amount of dues,
fees, and assessments that may be required by the particular union."
Hearings on H. R. 7789 before the House Committee on Interstate and Foreign
Commerce, 81st Cong., 2d Sess., 121 (1950) (House Hearings). See also Hearings
on S. 3295 before a Subcommittee of the Senate Committee on Labor and Public
Welfare, 81st Cong., 2d Sess., 173-174 (1950) (Senate Hearings). Daniel Loomis,
appearing for the Association of Western Railways, objected that "[without]
any limitation upon the right of the organizations to levy dues, fees, or
assessments all employees could be made subject to unwarranted and unlimited
deductions from their pay and would have no voice as to the kind or amount of
such dues, fees, or assessments. Such funds as were thus raised could be used
indiscriminately by the organizations and in many cases solely at the discretion
of the officers of the organizations." House Hearings, at 160; see also
Senate Hearings, at 316-317.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Furthermore,
[***22] Congress was well aware
of the broad scope of traditional union activities. The hearing witnesses
referred in general terms to the costs of "[activities] of labor
organizations resulting in the procurement of employee benefits," House
Hearings, at 10 (testimony of George Harrison), and the "policies and
activities of labor unions,"
id., at 50 (testimony of George
Weaver). Indeed, it was pointed out that not only was the "securing and
maintaining of a collective bargaining agreement . . . an expensive undertaking
. . . , there are many other programs of a union" that require the
financial and moral support of the workers.
Id., at 275; Senate
Hearings, at 236 (statement of Theodore Brown). In short, Congress was
adequately informed about the broad scope of union activities aimed at
benefiting union members, and, in light of the absence of express limitations in
§ 2, Eleventh it could be plausibly argued that Congress purported to authorize
the collection from involuntary members of the same dues paid by regular
members. This view, however, was squarely rejected in
Street, over the
dissents of three Justices, and the cases that followed it.
In
Street [***23] , the Court
observed that the purpose of § 2, Eleventh was to make it possible to require
all members of a bargaining unit to pay their fair share of the costs of
performing the function of exclusive bargaining agent. The union shop would
eliminate "free riders," employees who obtained the benefit of the
union's participation in the machinery of the Act without financially supporting
the union. That purpose, the Court held, Congress intended to be achieved
without "vesting the unions with unlimited power to spend exacted
money."
367
U.S., at 768. Undoubtedly, the
union
could collect from all employees what it needed to defray the expenses entailed
in negotiating and administering a collective agreement and in adjusting
grievances and disputes. The
[*447] Court had
so held in
Railway
Employees v. Hanson, 351 U.S. 225 (1956). But the authority to
impose dues and fees was restricted at least to the "extent of denying the
unions the right, over the employee's objection, to use his money to support
political causes which he opposes,"
367
U.S., at 768, [***24] even though Congress
was well aware that unions had historically expended funds in the support of
political candidates and issues.
Employees
could be required to become "members" of the union, but those who
objected could not be burdened with any part of the union's expenditures
[**1892]
in support of political or ideological causes. The Court expressed no view on
other union expenses not directly involved in negotiating and administering the
contract and in settling grievances.
Railway
Clerks v. Allen, 373 U.S. 113 (1963), reaffirmed the approach
taken in
Street, and described the
union
expenditures that could fairly be charged to all employees as those
"germane to collective bargaining."
Id.,
at 121, 122. Still later, in
Abood
v. Detroit Board of Education, 431 U.S. 209 (1977), we found no
constitutional barrier to an agency shop agreement between a municipality and a
teachers' union insofar as the agreement required every
[***25]
employee in the unit to pay a service fee to defray the costs of collective
bargaining, contract administration, and grievance adjustment. The
union,
however, could not, consistently with the Constitution, collect from dissenting
employees any sums for the support of ideological causes not germane to its
duties as collective-bargaining agent. In neither
Allen nor
Abood,
however, did the Court find it necessary further to define the line between
union expenditures that all employees must help defray and those that are not
sufficiently related to collective bargaining to justify their being imposed on
dissenters.
[6]
We remain convinced that Congress' essential justification for authorizing the
union shop was the desire to eliminate free riders -- employees in the
bargaining unit on whose behalf the union was obliged to perform its statutory
functions, but who refused to contribute to the cost thereof.
[***26] Only a
[*448]
union that is certified as the exclusive bargaining agent is authorized to
negotiate a contract requiring all employees to become members of or to make
contributions to the union. Until such a contract is executed, no dues or fees
may be collected from objecting employees who are not members of the union; and
by the same token, any obligatory payments required by a contract authorized by
§ 2, Eleventh terminate if the union ceases to be the exclusive bargaining
agent. Hence, when employees such as petitioners object to being burdened with
particular union expenditures,
the
test must be whether the challenged expenditures 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. Under
this standard, objecting employees may be compelled to pay their fair share of
not only the direct costs of negotiating and administering a
collective-bargaining contract and of settling grievances and disputes, but also
the expenses of activities or undertakings
[***27]
normally or reasonably employed to implement or effectuate the duties of the
union as exclusive representative of the employees in the bargaining unit.
With these considerations in mind, we turn to the particular expenditures for
which petitioners insist they may not be charged.
V
[7]
1.
Conventions. Every four years, BRAC holds a national convention at
which the members elect officers, establish bargaining goals and priorities, and
formulate overall union policy. We have very little trouble in holding that
petitioners must help defray the costs of these conventions. Surely if a union
is to perform its statutory functions, it must maintain its corporate or
associational existence, must elect officers to manage and carry on its affairs,
and may consult its members about overall bargaining goals and policy.
Conventions such as those at issue here are normal events about
[*449]
which Congress was thoroughly informed n10 and seem to us
[**1893]
to be essential to the union's discharge of its duties as bargaining agent. As
the Court of Appeals pointed out,
[***28]
convention
"activities guide the union's approach to collective bargaining and are
directly related to its effectiveness in negotiating labor agreements."
685
F.2d, at 1073. In fact, like all national unions, BRAC is required to hold
either a referendum or a convention at least every five years for the election
of officers.
29
U. S. C. § 481(a). We cannot fault it for choosing to elect its officers at
a convention rather than by referendum.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 For example, George Harrison, then president of BRAC, took conventions as
his example when asked to explain the difference between dues and assessments:
"It may be that they have an international union convention every 4 years
and they have a convention expense assessment to cover the cost of holding those
conventions. The fireman would pay that expense as an extra assessment over and
above his dues, while in my union the dues would cover all of that, and we would
make a distribution internally to the different funds." House Hearings, at
257-258. See also Senate Hearings, at 128 (testimony of Paul Monahan of the
United Railroad Workers) (conventions are "an extremely costly
proposition"; in order to give "our membership
and the people for
whom we bargain the best representation at the least possible cost"
conventions are held biannually rather than annually) (emphasis added).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***29]
[8]
2.
Social Activities. Approximately 0.7% of Grand Lodge expenditures go
toward purchasing refreshments for union business meetings and occasional social
activities.
685
F.2d, at 1074. These activities are formally open to nonmember employees.
Petitioners insist that these expenditures are entirely unrelated to the union's
function as collective-bargaining representative and therefore could not be
charged to them. While these affairs are not central to collective bargaining,
they are sufficiently related to it to be charged to all employees. As the Court
of Appeals noted, "[these] small expenditures are important to the union's
members because they bring about harmonious working relationships,
[*450]
promote closer ties among employees, and create a more pleasant environment for
union meetings."
Ibid.
We cannot say that these
de minimis expenses are beyond the scope of
the Act. Like conventions, social activities at union meetings are a standard
feature of union operations. In a revealing statement, Senator Thomas, Chairman
of the Senate Subcommittee, made clear
[***30]
his disinclination to have Congress define precisely what normal, minor union
expenses could be charged to objectors; he did not want the bill to say that
"the unions . . . must not have any of the . . . kinds of little dues that
they take up for giving a party, or something of that nature." Senate
Hearings, at 173-174. There is no indication that other Members of Congress were
any more inclined to scrutinize the minor incidental expenses incurred by the
union in running its operations.
[9]
3.
Publications. The Grand Lodge puts out a monthly magazine, the
Railway Clerk/interchange, paid for out of the union treasury. The magazine's
contents are varied and include articles about negotiations, contract demands,
strikes, unemployment and health benefits, proposed or recently enacted
legislation, general news, products the union is boycotting, and recreational
and social activities. See
685
F.2d, at 1074; District Court's Findings of Fact, 3 App. 236; Brief for
Petitioners 22; Brief for Respondents 32, and n. 19. The Court of Appeals found
that the magazine "is the union's primary means
[***31]
of communicating information concerning collective bargaining, contract
administration, and employees' rights to employees represented by BRAC."
685
F.2d, at 1074. Under the union's rebate policy, objecting employees are not
charged for that portion of the magazine devoted to "political
causes." App. Exhibits 436. The rebate is figured by calculating the number
of lines that are devoted to political issues as a proportion of the total
number of lines. Tr. of Oral Arg. 38.
The union must have a channel for communicating with the employees, including
the objecting ones, about its activities.
[*451]
Congress can be assumed to have known that union funds go toward union
publications; it is an accepted and basic union activity. The costs of
"worker education" were specifically mentioned during the hearings.
House Hearings, at 275; Senate Hearings, at 236. The magazine is important to
the union in carrying out its
[**1894]
representational obligations and a reasonable way of reporting to its
constituents.
Respondents' limitation on the publication costs charged objecting employees is
an important one, however.
[***32]
If the union cannot
spend dissenters' funds for a particular activity, it has no justification for
spending their funds for writing about that activity. n11 By the same token, the
Act surely allows it to charge objecting employees for reporting to them about
those activities it can charge them for doing.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 Given our holding that objecting employees cannot be charged for union
organizing or litigation, they cannot be charged for the expense of reporting
those activities to the membership.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[2B]
4.
Organizing. The Court of Appeals found that organizing expenses
could be charged to objecting employees because organizing efforts are aimed
toward a stronger union, which in turn would be more successful at the
bargaining table. Despite this attenuated connection with collective bargaining,
we think such expenditures are outside Congress' authorization. Several
considerations support
[***33] this
conclusion.
First, the notion that § 2, Eleventh would be a tool for the expansion of
overall union power appears nowhere in the legislative history. To the contrary,
BRAC's president expressly disclaimed that the union shop was sought in order to
strengthen the bargaining power of unions. n12 "Nor was any
[*452]
claim seriously advanced that the union shop was necessary to hold or increase
union membership."
Street,
367 U.S., at 763, n. 13. Thus, organizational efforts were not what Congress
aimed to enhance by authorizing the union shop.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 When asked if the union shop would "strengthen your industry-wide
bargaining as presently exists in the railroad industry," Harrison replied:
"I do not think it would affect the power of bargaining one way or the
other. . . . If I get a majority of the employees to vote for my union as the
bargaining agent, I have got as much economic power at that stage of development
as I will ever have. The man that is going to scab -- he will scab whether he is
in or out of the union, and it does not make any difference." House
Hearings, at 20-21.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***34]
Second, where a union shop provision is in place and enforced, all employees in
the relevant unit are already organized. By definition, therefore, organizing
expenses are spent on employees outside the collective-bargaining unit already
represented. n13 Using dues exacted from an objecting employee to recruit
members among workers outside the bargaining unit can afford only the most
attenuated benefits to collective bargaining on behalf of the dues payer.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13 The District Court found that the organizing expenses here were spent in
part to recruit new union members within the bargaining unit. This is because
the collective-bargaining agreement involved in this case is administered as an
agency shop rather than a union shop provision. By its terms, § 2, Eleventh
authorizes negotiation of a union shop; it may be read to authorize negotiation
of an agency shop. See
NLRB
v. General Motors Corp., 373 U.S. 734 (1963) (interpreting the
equivalent provision in the National Labor Relations Act). But it would be
perverse to read it as allowing the union to charge to objecting nonmembers part
of the costs of attempting to convince them to become members.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***35]
Third, the free-rider rationale does not extend this far. The image of the smug,
self-satisfied nonmember, stirring up resentment by enjoying benefits earned
through other employees' time and money, is completely out of place when it
comes to the union's overall organizing efforts. If one accepts that what is
good for the union is good for the employees, a proposition petitioners would
strenuously deny, then it may be that employees will ultimately ride for free on
the union's organizing efforts outside the bargaining unit. But the free rider
Congress had in mind was the employee the union was required to represent and
from whom it could not withhold benefits obtained for its members. Nonbargaining
unit organizing is not directed at that employee.
[*453]
Organizing money is spent on people who are not union members, and only in the
most distant way works to the benefit of those already paying dues. Any
free-rider problem here is
[**1895] roughly
comparable to that resulting from union contributions to pro-labor political
candidates. As we observed in
Street, that is a far cry from the
free-rider problem with which Congress was concerned.
[***36] [3B]
5.
Litigation.
The
expenses of litigation incident to negotiating and administering the contract or
to settling grievances and disputes arising in the bargaining unit are clearly
chargeable to petitioners as a normal incident of the duties of the exclusive
representative. The same is true of fair representation litigation arising
within the unit, of jurisdictional disputes with other unions, and of any other
litigation before agencies or in the courts that concerns bargaining unit
employees and is normally conducted by the exclusive representative. The
expenses of litigation not having such a connection with the bargaining unit are
not to be charged to objecting employees. Contrary to the view of the Court of
Appeals, therefore, unless the Western Airlines bargaining unit is directly
concerned, objecting employees need not share the costs of the union's challenge
to the legality of the airline industry mutual aid pact; of litigation seeking
to protect the rights of airline employees generally during bankruptcy
proceedings;
[***37] or of defending suits
alleging violation of the nondiscrimination requirements of Title VII of the
Civil Rights Act of 1964.
[10]
6.
Death benefits. BRAC pays from its general funds a $ 300 death
benefit to the designated beneficiary of any member or nonmember required to pay
dues to the union. In
Street, the Court did not adjudicate the legality
under § 2, Eleventh of compelled participation in a death benefit program,
citing it as an example of an expenditure in the area between the costs which
led directly to the complaint as to "free riders," and the
expenditures to support union political activities.
367
U.S., at 769-770, and n. 18. In
Allen, the
[*454]
state trial court, like the District Court in this case, found that compelled
payments to support BRAC's death benefit system were not reasonably necessary or
related to collective bargaining and could not be charged to objecting
employees. See
373
U.S., at 117. We found it unnecessary to reach the correctness of that
conclusion.
Here, the Court of Appeals said that death benefits have historically played
[***38] an important role in labor
organizations, that insurance benefits are a mandatory subject of bargaining,
and that by providing such benefits itself rather than seeking them from the
employer, BRAC is in a better position to negotiate for additional benefits or
higher wages. The court added that the "provision of a death benefits plan,
which tends to strengthen the employee's ties to the union, is germane to the
work of the union within the realm of collective bargaining."
685
F.2d, at 1074. This was consistent with the affidavit of one of the union's
expert witnesses to the effect that "death benefit funds do provide a
desirable economic benefit to union members and, therefore, they do serve as an
organizational aid and as a means of strengthening the union internally."
Affidavit of Lloyd Ulman, 2 App. 210. Petitioners, of course, press the view
that death benefits have no connection with collective bargaining at all, let
alone one that would warrant forcing them to participate in the system.
We find it unnecessary to rule on this question. Because the union is no longer
the exclusive bargaining agent and petitioners are no longer involved in the
death
[***39] benefits system, the only issue
is whether petitioners are entitled to a refund of their past contributions. We
think that they are not so entitled, even if they had the right to an injunction
to prevent future collections from them for death benefits. Although they
objected to the use of their funds to support the benefits plan, they remained
entitled to the benefits of the plan as long as they paid their dues; they thus
enjoyed a form of
[*455] insurance for which
the union collected a premium. n14 We
[**1896]
doubt that the equities call for a refund of those payments.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n14 At oral argument, petitioners' counsel stated that at the time their
complaints were filed, nonmembers were not in fact eligible for death benefits,
even though their agency fees helped support the program. Tr. of Oral Arg. 9. In
pretrial filings, petitioners relied on this as an example of the union's breach
of its duty of fair representation. See 2 Record, Doc. No. 75, p. 40. The fair
representation argument is not before us. Nor is it clear from the record
whether petitioners are correct as a factual matter. See 3 Record, Doc. No. 155,
p. 47, n. 23 (defendants' memorandum in opposition to summary judgment). We
would have no hesitation in holding, however, that the union lacks authorization
under the RLA to use nonmembers' fees for death benefits they cannot receive.
Section 2, Eleventh is based on the presumption that nonmembers benefit equally
with members from the uses to which union money is put.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***40]
VI
Petitioners' primary argument is that for the union to compel their financial
support of these six activities violates the First Amendment. We need only
address this contention with regard to the three activities for which, we have
held, the RLA allows the union to use their contributions. We perceive no
constitutional barrier.
[11]
The First Amendment does limit the uses to which the union can put funds
obtained from dissenting employees. See generally
Abood
v. Detroit Board of Education, 431 U.S. 209 (1977). But by allowing
the union shop at all, we have already countenanced a significant impingement on
First Amendment rights. The
dissenting
employee is forced to support financially an organization with whose principles
and demands he may disagree. "To be required to help finance the union as a
collective-bargaining agent might well be thought . . . to interfere in some way
with an
[***41] employee's freedom to
associate for the advancement of ideas, or to refrain from doing so, as he sees
fit."
Id.,
at 222. It has long been settled that such interference with First Amendment
[*456] rights is justified by the
governmental interest in industrial peace.
Ibid.; Street,
367 U.S., at 776, 778 (Douglas, J., concurring);
Hanson,
351 U.S., at 238. At
a minimum, the union may constitutionally "expend uniform exactions under
the union-shop agreement in support of activities germane to collective
bargaining."
Railway
Clerks v. Allen, 373 U.S., at 122. The issue is whether these
expenses involve additional interference with the First Amendment interests of
objecting employees, and, if so, whether they are nonetheless adequately
supported by a governmental interest.
[12]
Petitioners do not explicitly contend that union social activities implicate
serious First Amendment interests. We need not determine whether contributing
[***42] money to such affairs is an act
triggering First Amendment protection. To the extent it is, the communicative
content is not inherent in the act, but stems from the union's involvement in
it. The objection is that these are
union social hours. Therefore, the
fact that the employee is forced to contribute does not increase the
infringement of his First Amendment rights already resulting from the compelled
contribution to the union. Petitioners may feel that their money is not being
well-spent, but that does not mean they have a First Amendment complaint.
[13]
[14]
The First Amendment concerns with regard to publications and conventions are
more serious; both have direct communicative content and involve the expression
of ideas. Nonetheless, we perceive little additional infringement of First
Amendment rights beyond that already accepted, and none that is not justified by
the governmental interests behind the union shop itself. As the discussion of
these expenses indicated, they "[relate] to the work of the union in the
[***43] realm of collective bargaining."
Hanson,
supra, at 235. The very nature of the free-rider problem and the
governmental interest in overcoming it require that the union have a certain
flexibility in its use of compelled funds. "'The furtherance of the
[**1897]
common cause leaves some leeway
[*457] for
the leadership of the group.'"
Abood,
supra, at 221-222, quoting
Street,
supra, at 778 (Douglas, J., concurring). These expenses are well within
the acceptable range.
VII
The Court of Appeals erred in holding that respondents were entitled to charge
petitioners for their pro rata share of the union's organizing and litigating
expenses, and that the former rebate scheme adequately protected the objecting
employees from the misuse of their contributions. The judgment of the Court of
Appeals is affirmed in part and reversed in part, and the case is remanded for
further proceedings consistent with this opinion. n15
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n15 On remand, damages will have to recalculated. Petitioners argue that a new
trial is required because the District Court applied a
preponderance-of-the-evidence, rather than a clear-and-convincing, standard of
proof. It is plain from the discussion of this issue in
Railway
Clerks v. Allen, 373 U.S. 113 (1963), in which we held that
the
union
bears the burden of proving what proportion of expenditures went to activities
that could be charged to dissenters, that no heightened standard is appropriate
in this situation. We noted there that "[absolute] precision in the
calculation of such proportion is not, of course, to be expected or required; we
are mindful of the difficult accounting problems that may arise."
Id.,
at 122. The fact that petitioners invoke the First Amendment is insufficient
reason to impose the heightened standard on their opponents, and we perceive no
need to abandon the preponderance standard normally applicable in civil suits
for damages. See generally
Addington
v. Texas, 441 U.S. 418, 423-425 (1979).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***44]
It is so ordered.
CONCURBY: POWELL (In Part)
DISSENTBY: POWELL (In Part)
DISSENT: JUSTICE POWELL, concurring
in part and dissenting in part.
I am in accord with Parts I, II, III, and IV of the Court's opinion, and with
all of Part V except for Subdivision 1, which addresses the
"convention" issue. I also do not agree with the Court's analysis in
Part VI in which petitioners' First Amendment arguments are disposed of
summarily.
[*458] I
For the most part, the Court's opinion considers whether the Railway Labor Act
itself permits the respondent union to charge nonunion employees for the
challenged expenditures. The First Amendment, upon which petitioners primarily
rely, is not the basis for the Court's decision except to the extent this was
addressed in Part VI. In light of prior decisions construing the Act, I agree
with the Court's decision to dispose of most of petitioners' claims on statutory
rather than constitutional grounds.
The relevant general principles, as the Court has shown, are well settled.
Railway
Employees v. Hanson, 351 U.S. 225 (1956); Machinists
v. Street, 367 U.S. 740 (1961); Railway
Clerks v. Allen, 373 U.S. 113 (1963). [***45]
It is clear from these decisions that objecting nonunion employees may not
properly be required to contribute to political causes with which they may
disagree. No prior decision of this Court, however, has "[defined] the line
between union expenditures that all employees must help defray and those that
are not sufficiently related to collective bargaining to justify their being
imposed on dissenters."
Ante, at 447. The Court today adopts a
statutory test or standard for identifying expenditures that fairly can be
viewed as benefiting all employees:
"[When] employees such as petitioners [in this case] object to being
burdened with particular union expenditures, the test must be whether the
challenged expenditures are necessarily or reasonably incurred for the purpose
of performing the duties of an exclusive representative of the employees in
dealing with the employer
[**1898] on
labor-management issues."
Ante, at 448.
This standard fairly reflects statutory intent and is reasonable. But like any
general standard, reasonable people -- and judges -- may differ as to its
application to particular types of expenditures. In this case, petitioners
challenge six
[***46] general categories of
expenditures incurred by respondent
[*459]
union (BRAC): the quadrennial conventions, litigation not involving the
negotiation of agreements or settlement of grievances, union publications,
social activities, death benefits for employees, and general organizing
activities. As noted above, I concur in the Court's disposition of all of these
categories except the quadrennial conventions of BRAC.
The Court, in a single paragraph, concludes that in view of the primary purposes
of a national convention, it is appropriate for petitioners to "help defray
the costs of these conventions."
Ante, at 448. I agree that
conventions are necessary to elect officers, to determine union policy with
respect to major issues of collective bargaining, and generally to enable the
national union to perform its essential functions as the exclusive bargaining
representative of employees. But it is not seriously questioned that conventions
also afford opportunities -- that often are fully exploited -- to further
political objectives of unions generally and of the particular union in
convention.
The District Court's findings in this case were based on the record
[***47]
with respect to the 25th quadrennial convention of BRAC. Its cost to the union
was approximately $ 1,802,000. The minutes of the convention indicate that a
number of major addresses were made by prominent politicians, including Senators
Humphrey, Kennedy, Hartke, and Schweiker, the Mayor of Washington, D. C., and
four Congressmen. The union has not shown how this major participation of
politicians contributed even remotely to collective bargaining. Before a union
may compel dissenting employees to defray the cost of union expenses, it must
meet its burden of showing that those expenses were "necessarily or
reasonably incurred for the purpose of performing the duties of an exclusive
[collective-bargaining] representative."
Ante, at 448. See
Railway
Clerks v. Allen, 373 U.S., at 122. n1 Apparently
[*460]
no effort was made by the union in this case to identify expenses fairly
attributable to these and other political activities, and to make appropriate
deductions from the dues of objecting employees. I do not suggest that such an
allocation can be made with mathematical exactitude. But reasonable estimates
surely could have been made. See
ibid [***48]
. The union properly felt a responsibility to allocate expenses where political
material was carried in union publications. See
ante, at 450-451.
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n1 Respondents' brief emphasizes the purposes and activities of these
quadrennial conventions that do relate -- even though sometimes tangentially --
to collective bargaining. Respondents' brief deals only lightly with political
speeches and activities. It does say that the "appearances of the Mayor of
Washington and the other public officials created no additional costs to BRAC,"
and "if there had been such costs [such as paying honoraria] those costs
would have been deducted from [the dues of] objecting employees." Brief for
Respondents 29, n. 16. This brief explanation leaves a number of unanswered
questions. For example, the record does not appear to reveal who defrayed the
travel, hotel, and other expenses of speakers and their staff who made political
speeches or whose purpose in attending was to further political causes. Nor does
the record show who paid for the considerable entertaining that likely was
provided for speakers as distinguished as those mentioned above. This may or may
not fairly be considered an appropriate expense under the Court's standard. In
short, at least for me, it does not seem appropriate for this Court -- on the
record before us -- to assume that
all union activities were
disassociated from political causes. The case should be remanded for a full
development of these facts.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***49]
In view of the foregoing, I do not understand how the Court can make the
judgment today that all the expenses of the 25th quadrennial meeting of BRAC
qualify under the Court's new standard as "necessarily or reasonably
incurred for the purpose of performing the duties of an exclusive
[collective-bargaining] representative." I, therefore, would reverse the
Court of Appeals on this issue, and remand the case for further consideration in
light of the standard articulated by the Court.
[**1899] II
In Part VI the Court found it necessary to address petitioners' First Amendment
argument with respect to three of the six activities at issue: social affairs,
publications, and conventions.
[*461] The
reasoning of the Court is not clear to me. It agrees, as it must, that the First
Amendment "does limit the uses to which the union can put funds obtained
from dissenting employees,"
ante, at 455 (citing
Abood
v. Detroit Board of Education, 431 U.S. 209 (1977)). Nevertheless,
the Court's conclusion with respect to convention expenses appears to ignore
that constraint.
In Part I above, I have expressed my disagreement with the Court's apparent
[***50] determination that the Railway Labor
Act permits the use of compulsory dues to help defray the costs of political
activities incurred at the quadrennial conventions. Under that interpretation of
the Act, it would be unnecessary to reach the constitutional question in this
case. Even if Congress had intended the Act to permit such use of compulsory
dues, it is clear that the First Amendment would not. Where funds are used to
further political causes with which nonmembers may disagree, the decisions of
this Court are explicit that nonmember employees may not be compelled to bear
such expenditures. The Court's conclusory disposition of petitioners' argument
ignores the force of these decisions. See
Abood,
supra, at 234; Street,
367 U.S., at 777-778 (Douglas, J., concurring). n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 In
Abood, the Court observed:
"[The dissenting employees] specifically argue that they may
constitutionally prevent the Union's spending a part of their required service
fees to contribute to political candidates and to express political views
unrelated to its duties as exclusive bargaining representative. We have
concluded that this argument is a meritorious one."
431
U.S., at 234.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***51]
These same concerns would prohibit the union, as a constitutional matter, from
charging dissenting employees for publication expenses related to political
causes. Because the Court has determined that the Act prohibits the union from
charging dissenting employees for publication expenses unrelated to collective
bargaining,
ante, at 451, I assume that the First Amendment discussion
in Part VI applies only to publication expenses directly related to collective
bargaining.
[*462] Thus, I concur in Part VI
of the Court's opinion only to the extent it holds that the First Amendment does
not bar those publication expenses "necessarily or reasonably incurred for
the purpose of performing the duties of an exclusive [collective-bargaining]
representative." n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 With respect to "social activities," I concur only in the result
reached by the Court's First Amendment analysis. As the Court points out, the
expenditures on such activities are "
de minimis," and
petitioners do not contend that the social activities here "implicate
serious First Amendment interests."
Ante, at 456. Within
reasonable limits, I think it fairly may be argued that social occasions are
related to the duties of the union as the exclusive representative of all of the
employees in the bargaining unit. The fraternal aspect of a union may be
relevant to its bargaining capability, and this Court has held that the First
Amendment permits the union to "expend uniform exactions under the
union-shop agreement in support of activities germane to collective
bargaining."
Railway
Clerks v. Allen, 373 U.S. 113, 122 (1963).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***52]
III
For the reasons stated above, I join Parts I, II, III, IV, and all but
Subdivision 1 of Part V. As to the convention issue addressed in that
subdivision, I believe that the judgment should be reversed and the case
remanded to the Court of Appeals for further consideration in light of the test
articulated today by the Court. In view of my position on that issue, I do not
think it necessary to reach the First Amendment issue as to conventions; nor do
I agree with the Court's summary conclusion that no First Amendment rights are
implicated by the expenditure of funds on political causes at conventions. I,
therefore, dissent from the Court's decision in Part V, Subdivision 1, and from
its decision with respect to conventions found in Part VI. I concur in the
remainder of the result reached in Part VI.
Labor
& Employment Law : Collective Bargaining & Labor Relations : Enforcement