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Skepticism greets non-union fees case

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — The Supreme Court seemed skeptical yesterday of the argument that the First Amendment rights of non-union members should include refusing to pay fees that support certain kinds of national union litigation.

The justices, on the opening day of the fall term, were hearing arguments in Locke v. Karass, the latest in a series of cases supported by the National Right to Work Foundation. The group opposes union dominance of workplaces by espousing the First Amendment rights of non-union members to refuse to fund union activities with which they might disagree.

By law and Supreme Court precedent, non-union members in a workplace governed by a union collective-bargaining agreement can refuse to pay full union dues. But unions can charge non-members a lesser “agency fee” to cover the costs of collective bargaining and other services that benefit members and non-members alike. Friction still continues, however, over the kinds of union activities the agency fee can be used to fund.

In the case before the Supreme Court, a group of Maine state employees object to paying a portion of their agency fee that their union local forwards to the national Service Employees International Union. The portion at issue supports, through a pooling arrangement, nationwide union litigation that does not directly benefit the Maine local. The disputed payment amounts to less than 2% of the $4.47 the plaintiffs pay in agency fees to the local every two weeks, according to the union.

During active questioning from the bench yesterday, some justices wondered why that small portion raises First Amendment problems at all. Several analogized the pooling arrangement to “labor litigation insurance” that could be a legitimate expense chargeable to non-union members.

“What harm are we trying to prevent here?” Justice Anthony Kennedy asked at one point.

“Well, obviously First Amendment harm,” responded W. James Young, a right-to-work foundation lawyer who represents the objecting non-members.

“The First Amendment can be a sword or a shield,” Kennedy shot back. “This union wants to use it as a sword in order to … protect its rights under the collective-bargaining agreement. I don’t see the harm.”

Young replied that if, in fact, union litigation affects the bargaining agreement of the union local, charging non-members of that local would be OK. But the litigation at issue in the case is “too attenuated” from the interests of the Maine local, he said, to be charged to the non-members. He invoked Ellis v. Railway Clerks, a 1984 Supreme Court decision that barred charging non-members for the cost of litigation not germane to their local bargaining unit.

Justice Stephen Breyer, for his part, saw no First Amendment harm at all, because the litigation at issue “has nothing to do with politics, nothing to do with speech.” He added, “42 bishops would swear there is nothing here that has anything to do with politics.”

Justices Samuel Alito Jr. and Antonin Scalia came to Young’s defense, arguing that the litigation does not have to be political for non-members to object to it legitimately. As Young stood observing the colloquy that was eating up his argument time, Justice John Paul Stevens interjected, addressing Young, “I’d be interested in your comments on this dialogue.” Young said the key objection his clients had was that the litigation benefited other bargaining units, not their own.

Jeremiah Collins, representing the union, argued that the disputed portion of the agency fee should be allowed because it goes into a pooling arrangement that could benefit the union local in the future. “Local unions can draw upon those resources as needed,” Collins told the justices. The relationship between locals and the national union, he also said, is one of “good faith and fair dealing” that guarantees that locals will have their needs met, if not in the current litigation then in future litigation.

Roberts objected to Collins’ argument, stating, “We are talking about an infringement on the objecting members’ First Amendment rights, and your answer is, ‘Trust us, we’ll treat you fairly? ... That’s not the usual standard we apply to infringement of First Amendment rights.”

(See transcript of oral arguments.)


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