Case Study:
Lehnert v. Ferris Faculty Association 500 U.S. 507 (1991)
Several members of a bargaining unit objected to the way their service fee funds were used, even though they were not members of the union in this agency shop. The Court addressed several different ways in which the money could and could not be spent.
Blackmun, J.
Michigan’s Public Employment Relations Act (Act) provides that a duly selected union shall serve as the exclusive collective-bargaining representative of public employees in a particular bargaining unit. The Act, which applies to faculty members of a public educational institution in Michigan, permits a union and a government employer to enter into an “agency-shop” arrangement under which employees within the bargaining unit who decline to become members of the union are compelled to pay a “service fee” to the union.
Ferris Faculty Association (FFA), an affiliate of the Michigan Education Association (MEA) and the National Education Association (NEA), serves, pursuant to this provision, as the exclusive bargaining representative of the faculty of Ferris State College in Big Rapids, Michigan. Ferris is a public institution established under the Michigan Constitution and is funded by the State. The bargaining, agreement required all employees in the bargaining unit who did not belong to the FFA to pay a service fee equivalent to the amount of the dues required of a union member. Of the $284 service fee for 1981–1982, the period at issue, $24.80 went to the FFA, $211.20 to the MEA, and $48 to the NEA. Employees were members of the Ferris faculty during the period in question and objected to certain uses by the unions of their service fees. They instituted this action, claiming that the use of their fees for purposes other than negotiating and administering a collective-bargaining agreement with the Board of Control violated rights secured to them by the First and Fourteenth Amendments to the United States Constitution. The Court’s decisions in this area prescribe a caseby-case analysis in determining which activities a union constitutionally may charge to dissenting employees, and set forth several guidelines to be followed in making such determinations. Chargeable activities must (1) be “germane” to collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding “free riders,” and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop. In arguing that these principles exclude the charges here, employees propose two limitations on the use by public-sector unions of dissenters’ contributions. First, they urge that they may not be charged over their objection for lobbying activities that do not concern legislative ratification of, or fiscal appropriations for, their collective-bargaining agreement. Second, as to nonpolitical expenses, employees assert that the local union may not utilize dissenters’ fees for activities that, though closely related to collective bargaining generally, are not undertaken directly on behalf of the bargaining unit to which the objecting employees belong. We accept the former proposition but find the latter to be foreclosed by our prior decisions. We turn to the union activities at issue in this case. The Court of Appeals found that the union could constitutionally charge employees for the costs of a Preserve Public Education (PPE) program designed to secure funds for public education in Michigan, and that portion of the MEA publication, the Teacher’s Voice, which reported these activities. Employees argue that, contrary to the findings of the courts below, the PPE program went beyond lobbying activity and sought to affect the outcome of ballot issues and “millages” or local taxes for the support of public schools. Given our conclusion as to lobbying and electoral politics generally, this factual dispute is of little consequence. None of these activities was shown to be oriented toward the ratification or implementation of employees’ collective-bargaining agreement. We hold that none may be supported through the funds of objecting employees. Employees next challenge the Court of Appeals’ allowance of several activities that the union did not undertake directly on behalf of persons within employees’ bargaining unit. This objection principally concerns NEA “program expenditures” destined for States other than Michigan, and the expenses of the Teacher’s Voice listed as “Collective Bargaining” and “Litigation.” Our conclusion that unions may bill dissenting employees for their share of general collective-bargaining costs of the state or national parent union is dispositive as to the bulk of the NEA expenditures. The District Court found these costs to be germane to collective bargaining and similar support services and we decline to disturb that finding. No greater relationship is necessary in the collective-bargaining context. This rationale does not extend, however, to the expenses of litigation that does not concern the dissenting employees’ bargaining unit or, by extension, to union literature reporting on such activities. While the union is clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit, we find extraunit litigation to be more akin to lobbying in both kind and effect. Moreover, union litigation may cover a diverse range of areas from bankruptcy proceedings to employment discrimination. When unrelated to an objecting employee’s unit, such activities are not germane to the union’s duties as exclusive bargaining representative. We hold that the Amendment proscribes such assessments in the public sector. The Court of Appeals determined that the union constitutionally could charge employees for certain public relations expenditures. In this connection, the court said: “Public relations expenditures designed to enhance the reputation of the teaching profession . . . are, in our opinion, sufficiently related to the unions’ duty to represent bargaining unit employees effectively so as to be chargeable to dissenters.” We disagree. Like the challenged lobbying conduct, the public relations activities at issue here entailed speech of a political nature in a public forum. More important, public speech in support of the teaching profession generally is not sufficiently related to the union’s collective-bargaining functions to justify compelling dissenting employees to support it. Expression of this kind extends beyond the negotiation and grievance-resolution contexts and imposes a substantially greater burden upon First Amendment rights than do the latter activities. Nor do we accept the Court of Appeals’ comparison of these public relations expenses to the costs of union social activities chargeable to dissenters. We have held that the communicative content of union social activities, if any, derives solely from the union’s involvement in them. “Therefore, the fact that the employee is forced to contribute does not increase the infringement of his First Amendment rights already resulting from the compelled contribution to the union.” The same cannot be said of the public relations charges upheld by the Court of Appeals which covered “informational picketing, media exposure, signs, posters and buttons.” The District Court and the Court of Appeals allowed charges for those portions of the Teachers’ Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs of the MEA, and other miscellaneous matters. Informational support services such as these are neither political nor public in nature. Although they do not directly concern the members of employees’ bargaining unit, these expenditures are for the benefit of all and we discern additional infringement of First Amendment rights that they might occasion. In short, we agree with the Court of Appeals that these expenses are comparable to the de minimis social activity charges. The Court of Appeals ruled that the union could use the fees of objecting employees to send FFA delegates to the MEA and the NEA conventions and to participate in the 13E Coordinating Council, another union structure. The employees challenge that determination and argue that the meetings were those of affiliated parent unions rather than the local, and therefore do not relate exclusively to the employees’ unit. We need not determine whether employees could be commanded to support all the expenses of these conventions. The question before the Court is simply whether the unions may constitutionally require employees to subsidize the participation in these events of delegates from the local. We hold that they may. That the conventions were not solely devoted to the activities of the FFA does not prevent the unions from requiring employees’ support. We conclude above that the First Amendment does not require so close a connection. Moreover, participation by members of the local in the formal activities of the parent is likely to be an important benefit of affiliation. The chargeability of expenses incident to preparation for a strike which all concede would have been illegal under Michigan law is a provocative question. At the beginning of the 1981–1982 fiscal year, the FFA and Ferris were engaged in negotiating a new collective-bargaining agreement. The union perceived these efforts to be ineffective and began to prepare a “job action” or, in more familiar terms, to go out on strike. These preparations entailed the creation by the FFA and the MEA of a “crisis center” or “strike headquarters.” Had the FFA actually engaged in an illegal strike, the union clearly could not have charged the expenses incident to that strike to dissenters. We can imagine no legitimate governmental interest that would be served by compelling objecting employees to subsidize activity that the State has chosen to disallow. Similarly, one might expect the State to prohibit unions from using dissenters’ funds to threaten or prepare for such conduct. The Michigan Legislature, however, has chosen not to impose such a restriction, and we do not find the First Amendment to require that limitation. The employees can identify no determination by the State of Michigan that mere preparation for an illegal strike is itself illegal or against public policy, and we are aware of none. Further, we accept the rationale provided by the Court of Appeals in upholding these charges that such expenditures fall “within the range of reasonable bargaining tools available to a public sector union during contract negotiations.” The District Court expressly credited trial testimony by an MEA representative that outward preparations for a potential strike serve as an effective bargaining tool and that only one out of every seven or eight “job action investigations” actually culminates in a strike. In sum, these expenses are substantially indistinguishable from those appurtenant to collective-bargaining negotiations. The District Court and the Court of Appeals concluded, and we agree, that they aid in those negotiations and inure to the direct benefit of members of the dissenters’ unit. Further, they impose no additional burden upon First Amendment rights. The union may properly charge employees for those costs. AFFIRMED in part and REVERSED in part, and REMANDED.
Q1. Do you agree with the Court’s decision regarding funds spent for activities preparatory to a strike that could not legally take place? Does the Court’s position make sense to you? Explain.
Q2. As an employer who has a unionized workplace, how would you feel about this decision?
Q3. Does the agency shop provision requiring nonunion members to contribute a service fee equal to the union dues make sense to you?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.