Locke v. Karass


Whether a state may constitutionally require its nonunion employees to pay fees to a union for representation, if the union may use the income from those fees to represent individuals outside of the state employees’ bargaining unit.


The state of Maine has designated the Maine State Employees Association (“MSEA”) as the exclusive “collective bargaining agent” for Maine state employees, including certain employees who are not members of the union. As a result, the nonmembers are required to pay service fees to MSEA, with part of the nonmembers’ fees pooled into the resources of a larger umbrella union. A group of nonmembers recently sued MSEA, claiming that this pooled arrangement with MSEA violates their First Amendment  rights,  because some of these litigation fees end up contributing to units outside MSEA. The District Court for the District of Maine held that the arrangement was constitutional and ruled for the unions, and the Court of Appeals for the First Circuit affirmed. At issue before the Supreme Court is whether such a pooling arrangement for extra-unit, collective-bargaining litigation expenses is constitutional. The Court’s decision will affect the financial burden on both nonmembers and local unions. Moreover, several circuit courts have decided differently on the issue of extra-unit litigation. With this case, the Court has the opportunity to reaffirm, clarify, or change the existing law.

Questions as Framed for the Court by the Parties 

In Ellis v. Railway Clerks, this Court unanimously “determined that the [Railway Labor Act], as informed by the First Amendment, prohibits the use of dissenters’ [union] fees for extraunit litigation.” Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 528 (1991) (opinion of Blackmun, J., citing Ellis, 466 U.S. 435, 453 (1984)). In Lehnert, a four-member plurality therefore held “that the Amendment proscribes such assessments in the public sector.” Id. Moreover, Justice Scalia’s separate opinion, concurring in part in the judgment announced by Justice Blackmun, reasoned that “there is good reason to treat [Ellis and the Court’s other statutory cases] as merely reflecting the constitutional rule.” Id. at 555.

May a State, nonetheless, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of agency fees for purposes of financing a monopoly bargaining agent’s affiliates’ litigation outside of a nonunion employee’s bargaining unit?

The Maine State Employees Association (“MSEA”), a union which is part of a larger umbrella union, the Service Employees International Union (“SEIU”), represents two types of Maine state employees: those who are members of the union, and some who are not. See Locke v. Karass, 498 F.3d 49, 51, 52 (1st Cir.

Edited by 


The authors would like to thank Professor Angela Cornell for her research help with this case.

Additional Resources 

· LII Law About: Collective Bargaining

· Circuit Court Split: Otto v. Pa. State Educ. Ass’n,330 F.3d 125 (3d Cir. 2003)

· Circuit Court Split: Reese v. City of Columbus, 71 F.3d 619 (6th Cir. 1995)

· Circuit Court Split: Pilots Against Illegal Dues v. Air Line Pilots Ass’n, 938 F.2d 1123 (10th Cir. 1991)

Submit for publication