graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Compelled Non-Member Fees for Extraunit Litigation: Compelled Speech?

The collective-bargaining agreement between Maine and respondent local union, the exclusive bargaining agent for certain state employees, requires nonmember employees represented by the union to pay the local a “service fee” equal to the portion of union dues related to ordinary representational activities, e.g., collective bargaining or contract administration activities. That fee does not include nonchargeable union activities such as political, public relations, or lobbying activities. The fee includes a charge that represents the “affiliation fee” the local pays to the national union. But, it covers only the part of the affiliation fee that helps to pay for the national’s own chargeable activities, which include some litigation activities that directly benefit other locals or the national itself, rather than respondent local. The petitioners, nonmembers of the local, brought this suit claiming, inter alia, that the First Amendment prohibits charging them for any portion of the service fee that represents litigation that does not directly benefit the local, i.e., “national litigation.” The District Court found no material facts at issue and upheld this element of the fee. The First Circuit affirmed.

Issue Areas:

Individual Liberty, Limited Government

Question(s) Presented:

Did the First Circuit err in determining that the costs of litigation brought on behalf of, or by, a union entity other than the local bargaining representative, and which litigation is funded through a “pooling agreement,” may be charged to nonmember employees as a part of an “agency shop fee” as long as the litigation meets the Lehnert v. Ferris Faculty Ass’n chargeability test, to wit, that such litigation (1) is germane to collective bargaining, (2) is justified by the government’s vital policy interest in labor peace, and avoiding free riders, and (3) does not significantly add to the burdening of free speech that is inherent in the allowance of an agency shop arrangement?

ALF’s Amicus Brief:

ALF along with numerous co-amici argue that the germane test that has developed in the Supreme Court’s jurisprudence on shop fees narrows the scope of activities which can be subsidized by compelled fees from non-union members should exclude litigation that does not involve the local bargaining unit of non-union members. Because litigation is inherently an act of speech, and because Ellis, 466 U.S. 435, limited the scope of litigation subsidizable by non-union member fees to only those that have a “connection with the bargaining unit,” subsidizing extraunit litigation with non-member fees is a violation of the First Amendment rights of non-members.

In Lehnert, the four member plurality concluded that the expenses of litigation conducted by a union’s national affiliate, which does not concern the dissenting employee’s bargaining unit, were “akin to lobbying in both kind and effect.” The pooling of compelled fees from non-members for national litigation concentrates these funds, multiplying the speech that the non-member objects to. The primary justification for allowing these fees in Abood was avoiding a free rider problem, where non-members benefit directly from the efforts of the union, which is simply not the case where, as here, the benefits gained will be enjoyed by members of bargaining units other than that of the non-members. Compelled speech to lobby for someone’s else’s interests is a violation of the First Amendment because the activity for which the fee is extracted is not germane to the interests of the party whom is compelled to pay for the lobbying. 

This national pool is not “insurance” that benefits the local bargaining unit, because the local bargaining unit has no say or ability to predict when or how the funds will be deployed. Insurance protects those who pay into the pool by paying for expenses when the policy holder is harmed. Instead of benefitting the local bargaining unit, the fee arrangement in question subsidizes rent seeking behavior by the national union, and the compulsion of non-members ensures that the national union cannot be held accountable for how it allocates the benefits of its rent seeking activities. If an insurance policy holder believed that his policy was not giving him adequate benefits because the executives who controlled the insurance companies over-allocated the surpluses of the insurance pool to themselves, that policy holder could buy insurance from a different company. 

ALF urges the Supreme Court to adopt the rule proposed by the concurrence in Lehnert to ensure that not only are the speech rights of non-union members protected in this country, but also so that unions are more structurally accountable at the local level.



On January 21, 2009, the Supreme Court issued an adverse opinion, holding that so long as the arrangement in question is reciprocal in nature, it is permissible to use non-member fees to fund national litigation over issues that are otherwise chargeable to non-members. 

Date Originally Posted: September 25, 2009

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