Locke v. Karass dealing with dues for extra-unit litigation expenses

This case, also from the great State of Maine, has to do with the payment of union fees by non-union members of a bargaining unit, when those fees are used to pursue union litigation outside of the jurisdiction of the particular local chapter of the union. It is a framed as a constitutional issue, a potential violation of petitioners' First and Fourteenth Amendment rights of free speech. All of this becomes crystalline when we walk through a few principles of labor law and facts of this case.

1. Local 1989, Service Employees International Union ("SEIU") has been designated as the bargaining representative of Executive branch employees of the State of Maine. It is a common practice in state gov't to have one union represent the interests of a group of employees in a particular department (lest too much confusion ensue).

2. The union charges its members a fee, deducted from each paycheck, to pay for expenses of running the union operation--everything from contract negotiation to running an office to litigation to political campaigning on behalf of the union interests.

3. You don't have to join the union to become an employee of the executive branch. However, since you benefit from the work of the union on your behalf, especially in the negotiation of salary and benefits (i.e., all agree that without the union's "help," the salary and benefits would not be as good as they are), those non-union members of a bargaining unit--in this case non-union members who work for the Maine executive department-- have to pay a "service fee" which covers their share of costs of negotiating for contracts. This service fee is less than that charged to the members of the union. I wish that numbers were front and center in this case--because that is what makes it interesting. However, I didn't easily find the numbers in the various documents I read for this case. No one is challenging this differential system here.

4. Things get dicey when we move to the issue of this case. The SEIU, being a large national union, has national concerns, some of which are litigation opportunities outside of Maine which may, because of their outcome, have an effect on Maine workers. That is, some of the litigation, though outside of Maine, might cover working conditions that would apply across the board, and not simply in the jurisdiction where the suit is being tried. So, we come to the question in this case. Can the SEIU tack on a little extra fee (how much?) to non-union bargaining-unit members to cover what is called "extra-unit" litigation? The case is as simple and as difficult as that.

Analysis

Now we have the issue; it relates to additional fees charged to non-union bargaining-unit members for litigation outside of the jurisdiction. The 20 or so original plaintiffs in this case, who lost both at the District Court and Court of Appeals, see this as a sort of creeping (and perhaps creepy) attempt by the union to get deeper into their pocketbook under the guise of "helping you out." The union, on the contrary, argues that all the benefits provided for their workers can't simply be allocated according to activities within each individual Local; some broader actions help all members. Well, how is the Court to decide?

Well, unlike God when handing down the law at Sinai, the Supreme Court is not writing on blank tablets here. Two of its earlier decisions that will no doubt shape the outcome of this case are the Ellis and Lehnert decisions. A word about each might be helpful.

A. Ellis v. Railway Clerks, 466 US 435 (1984) was a case under the federal Railway Labor Act (45 USC sec 151 et seq.). The words which tend to support the petitioners come from that case, and are here:

"The expenses of litigation incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit are clearly chargeable to petitioners as a normal incident of the duties of the exclusive representative. The same is true of fair representation litigation arising within the unit, of jurisdictional disputes with other unions, and of any other litigation before agencies or in the courts that concerns bargaining unit employees and is normally conducted by the exclusive representative. The expenses of litigation not having such a connection with the bargaining unit are not to be charged to objecting employees. Ellis, 435 U.S. at 453 (my emphasis).

So, a slam dunk? Not really. Why?

2. Because in 1991 the Lehnert court addressed the pooling of expenditures for litigation outside of the rule articulated in Ellis, and concluded that they were legitimate as long as the expenses passed the "germane" test--i.e., that they were closely-enough related to fees required of the local non-members that they could be said to benefit these workers. Lehnert v. Ferris Faculty Ass'n , 500 US 507 (1991). In the Lehnert case, Justice Blackmun, writing for a plurality, was careful to note two things: (1) that chargeable activities must be "germane" to collective bargaining activity; and (2) that they must be justified by the government's vital policy interest in labor peace and avoiding 'free riders.'

Conclusion

So, there you have it. Does the charging of additional fees for "extra-unit litigation" to non-union members who are members of the bargaining unit violate their free speech rights (i.e., putting their money where their mouth is)? This isn't a huge issue with respect to union rights/nonunion-member rights, but it is what you might call one more aspect of the continuing wrestling match between as unions struggle to maintain their legitimacy and reach in a society which has been sending out strong anti-union messages at least since the early 1980s.

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