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In gray area involving fees, justices back union

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — With rare unanimity, the Supreme Court ruled yesterday that the First Amendment rights of non-union state employees are not violated when they are required to contribute fees toward a narrow category of union litigation activities.

The ruling in Locke v. Karass decided the latest in a series of First Amendment challenges brought by “right to work” advocates seeking to weaken the ability of unions to collect fees from non-members.

The Court has said that non-members can be required to pay fees — not dues — to unions for services that all employees in a workplace can benefit from, such as collective bargaining. But it has ruled against requiring non-members to fund certain union political activities with which they disagree. The high court and lower courts have divided, however, on fees for activities that fall in a gray area that challengers say violate workers’ right against forced political speech.

In the case decided yesterday, Maine requires non-member employees to pay a service fee to the Maine State Employees Association. Objecting non-members challenged the portion of the fee that the union local pays to its national parent union for national litigation that does not directly benefit Maine workers. The litigation does not relate to political or lobbying activities, but the non-members still claim they should not be forced to pay for it.

In past cases, the justices have not ruled on this category of fees, which in the Maine case amounted to less than $1 a month per employee.

But this time the Court resolved the question about this category definitively in favor of the union. Writing for the Court, Justice Stephen Breyer said national litigation costs can be charged to non-members, as long as the litigation meets two criteria. First, the subject matter of the litigation must bear “an appropriate relation” to subjects such as collective bargaining or contract administration. Second, the arrangement between the local and the national union must be reciprocal — meaning that the litigation must be of the sort that could ultimately benefit the local, or that other locals would pay for if it had been initiated by the Maine union.

Breyer wrote that he could find “no sound basis” for distinguishing between national conventions and national publications — the costs for which the Court has said in past cases can be charged to non-members — and national litigation.

Justice Samuel Alito Jr. wrote a concurrence, joined by Chief Justice John Roberts Jr. and Antonin Scalia, cautioning that the term “reciprocity” as used by Breyer has not been defined in detail.

The National Right to Work Foundation, which aided the Maine non-members, criticized the Court for ruling that “Maine state employees can be compelled under penalty of losing their jobs to pay into an international union’s litigation slush fund.”

Mark Mix, president of the foundation, said, “America’s workers were not well served by this ruling. The U.S. Supreme Court missed an obvious opportunity to apply explicitly the same ‘strict scrutiny’ standard that applies under the First Amendment to other content-based government restrictions on free speech.”


Unanimous Court sides with union in legal-fees case

Justices agree Maine public employees' union can force non-union government workers to help pay for national litigation. 01.21.09

Justices question doctrines at heart of union-fees case
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