Conflict Between Organization and Members.

It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.661 But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations. For example, such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.662

Union shop agreements generally require, as a condition of employment, membership in the union on or after the thirtieth day following the beginning of employment. In Railway Employes’ Dep’t v. Hanson, the Supreme Court upheld the constitutionality of such agreements, noting that the record in the case did not indicate that union dues were being “used as a cover for forcing ideological conformity or other action in contravention of the First Amendment,” such as by being spent to support political candidates.663 In International Ass’n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.664

In Abood v. Detroit Bd. of Education,665 the Court found Hanson and Street applicable to the public employment context.666 Recognizing that any system of compelled support restricted employees’ right not to associate and not to support, the Court nonetheless found the governmental interests served by an “agency shop” agreement667 — the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact upon employee freedom.668 But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collective-bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.669 The remedy, however, was not to restrain the union from making non-collective-bargaining-related expenditures, but was to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions.670 Later, the Court further tightened the requirements. A proportionate refund is inadequate because “even then the union obtains an involuntary loan for purposes to which the employee objects”;671 an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union’s fee.672 Therefore, the union procedure must also “provide for a reasonably prompt decision by an impartial decisionmaker.”673

In Davenport v. Washington Education Ass’n,674 the Court noted that, although Chicago Teachers Union v. Hudson had “set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,”675 it “never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as ‘outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirements under Abood.’ ”676 Thus, the Court held in Davenport that the State of Washington could prohibit “expenditure of a nonmember’s agency fees for election-related purposes unless the nonmember affirmatively consents.”677 The Court added that “Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely.”678

And then, in Knox v. Service Employees International Union,679 the Court did suggest constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic in the first place, and, then, charged that requiring non-union members to affirmatively opt out of contributing to political activities was “a remarkable boon for unions.” Continuing to call opt-out arrangements impingements on the First Amendment rights of non-union members, the majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed non-union employees to opt in rather than requiring them to opt out.680 Two concurring Justices, echoed by the dissenters, heavily criticized the majority for reaching “significant constitutional issues not contained in the questions presented, briefed, or argued.” Rather, the concurrence more narrowly found that unions may not collect special political assesments from non-union members who earlier objected to nonchargeable (i.e., political) expenses, and could only collect from nonobjecting nonmembers after giving notice and an opportunity to opt out.681

Doubts on the constitutionality of mandatory union dues in the public sector intensified in Harris v. Quinn.682 The Court openly expressed reservations on Abood‘s central holding that the collection of an agency fee from public employees withstood First Amendment scrutiny because of the desirability of “labor peace” and the problem of “free ridership.” Specifically, the Court questioned (1) the scope of the precedents (like Hanson and Street) that the Abood Court relied on; (2) Abood‘s failure to appreciate the distinctly political context of public sector unions; and (3) Abood‘s dismissal of the administrative difficulties in distinguishing between public union expenditures for collective bargaining and expenditures for political purposes.683 Notwithstanding these concerns about Abood‘s core holding, the Court in Harris declined to overturn Abood outright. Instead, the Court focused on the peculiar status of the employees at issue in the case before it: home health care assistants subsidized by Medicaid. These “partial-public employees” were under the direction and control of their individual clients and not the state, had little direct interaction with state agencies or employees, and derived only limited benefits from the union.684 As a consequence, the Court concluded that Abood‘s rationale—the labor peace and free rider concerns—did not justify compelling dissenting home health care assistants to subsidize union speech.685 The question that remains after Harris is whether the Court will, given its open criticism of Abood, overturn the 1977 ruling in the future, or whether the Court will continue to limit Abood to its facts.686

In Ysursa v. Pocatello Education Ass’n,687 the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union’s First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was “justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.”688

The Court has held that a labor relations body may not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.689

Footnotes

661
The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537, 29 U.S.C. §§ 411413, enacted a bill of rights for union members, designed to protect, among other things, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects. back
662
Section 8(a)(3) of the Labor-Management Relations Act of 1947, 61 Stat. 140, 29 U.S.C. § 158(a)(3), permits the negotiation of union shop agreements. Such agreements, however, may be outlawed by state “right to work” laws. Section 14(b), 61 Stat. 151, 29 U.S.C. § 164(b). See Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538 (1949). In industries covered by the Railway Labor Act, union shop agreements may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45 U.S.C. § 152, Eleventh; see Railway Employes’ Dep’t v. Hanson, 351 U.S. 225 (1956). back
663
351 U.S. 225, 238 (1956). back
664
367 U.S. 740, 749–50 (1961). Justices Douglas, Black, Frankfurter, and Harlan would have reached the constitutional issue, with differing results. On the same day that it decided Street, the Court, in Lathrop v. Donohue, 367 U.S. 820 (1961), declined to reach the constitutional issues presented by roughly the same fact situation in a suit by lawyers compelled to join an “integrated bar.” These issues, however, were faced squarely in Keller v. State Bar of California, 496 U.S. 1, 14 (1990), which held that an integrated state bar may not, against a members’ wishes, devote compulsory dues to ideological or other political activities not “necessarily or reasonably related to the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State.” back
665
431 U.S. 209 (1977). back
666
That a public entity was the employer and the employees consequently were public employees was deemed constitutionally immaterial for the application of the principles of Hanson and Street, id. at 226–32, but, in a concurring opinion joined by Chief Justice Burger and Justice Blackmun, Justice Powell found the distinction between public and private employment crucial. Id. at 244. back
667
An agency shop agreement requires all employees, regardless of union membership, to pay a fee to the union that reflects the union’s efforts in obtaining employment benefits through collective bargaining. The Court in Abood noted that it is the “practical equivalent” of a union shop agreement. 431 U.S. at 217 n.10. back
668
431 U.S. at 217–23. For a similar argument over the issue of corporate political contributions and shareholder rights, see First National Bank v. Bellotti, 435 U.S. 765, 792–95 (1978), and id. at 802, 812–21 (Justice White dissenting). back
669
431 U.S. at 232–37. back
670
431 U.S. at 237–42. On the other hand, nonmembers may be charged for such general union expenses as contributions to state and national affiliates, expenses of sending delegates to state and national union conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991). A local union may also charge nonmembers a fee that goes to the national union to pay for litigation expenses incurred on behalf of other local units, but only if (1) the litigation is related to collective bargaining rather than political activity, and (2) the litigation charge is reciprocal in nature, i.e., other locals contribute similarly. Locke v. Karass, 129 S. Ct. 798, 802 (2009). back
671
Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435, 444 (1984). back
672
Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). back
673
475 U.S. at 309. back
674
551 U.S. 177 (2007). back
675
551 U.S. at 181, citing 475 U.S. 292, 302, 304–310. back
676
551 U.S. at 185, quoting Keller v. State Bar of Cal., 496 U.S. 1, 17 (1990), and adding emphasis. back
677
551 U.S. at 184. back
678
551 U.S. at 184 (citations omitted). back
679
567 U.S. ___, No. 10–1121, slip op. (2012). back
680
Id. at 17 (Alito, J., joined by Roberts, C.J., and by Scalia, Kennedy, and Thomas, JJ.). back
681
567 U.S. ___, No. 10–1121, slip op. (2012) (Sotomayor, J., joined by Ginsburg, J., concurring). back
682
573 U.S. ___, No. 11–681, slip op. (2014). back
683
Id. at 8–20. back
684
Id. at 24–27. back
685
Id. at 27. back
686
In Friedrichs v. California Teachers Association, the Court was equally divided on the question of whether to overrule Abood, signaling that Abood’s continued viability may be a subject of future debate at the Supreme Court. 578 U.S. ___, No. 14–915, slip op. at 1 (2016). back
687
129 S. Ct. 1093 (2009). back
688
129 S. Ct. at 1098. The unions had argued that, even if the limitation was valid as applied at the state level, it violated their First Amendment rights when applied to local public employers. The Court held that a political subdivision, “created by the state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.” Id. at 1101, quoting Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933). back
689
Madison School Dist. v. WERC, 429 U.S. 167 (1976). back