# Lehnert v. Ferris Faculty Association/Concurrence Scalia

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Justice SCALIA, with whom Justice O'CONNOR and Justice SOUTER join, and with whom Justice KENNEDY joins as to all but Part III-C, concurring in the judgment in part and dissenting in part.
While I agree with the Court's disposition of many of the challenged expenditures, I do not agree with the test it proposes. In my view today's opinion both expands and obscures the category of expenses for which a union may constitutionally compel contributions from dissenting nonmembers in an agency shop. I would hold that contributions can be compelled only for the costs of performing the union's statutory duties as exclusive bargaining agent.
* The Court purports to derive from "Hanson and Street and their progeny," ante, at 519, a proverbial three-part test, whereunder activities are chargeable to nonunion members of the bargaining unit if (1) they are " 'germane' to collective-bargaining activity," (2) they are "justified by the government's vital policy interest in labor peace and avoiding 'free riders,' " and (3) they do not "significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop." Ibid. As I shall later discuss, I do not find this test set forth in the referenced opinions. Since, moreover, each one of the three "prongs" of the test involves a substantial judgment call (What is "germane"? What is "justified"? What is a "significant" additional burden?) it seems calculated to perpetuate give-it-a-try litigation of monetary claims that are individually insignificant but cumulatively worth suing about, in the style of the present case.
To take but one example, presented by the facts before us: The majority would permit charging nonmembers for an informational newsletter that "concern[s] teaching and education generally, professional development, unemployment, job opportunities, award programs of the MEA, and other miscellaneous matters," ante, at 529; but four members of that majority would not permit charging for "informational picketing, media exposure, signs, posters and buttons," ibid. As I shall discuss in greater detail later, it seems to me that the former, the allowed charge, fails the "germaneness-to-collective-bargaining" test, and that the latter, the disallowed charge, fares no worse than the former insofar as the asserted basis for its disallowance, the "significant-additional-burden" test, is concerned. Thus, the three-part test, if its application is to be believed, provides little if any guidance to parties contemplating litigation, or to lower courts. It does not eliminate past confusion, but merely establishes new terminology to which, in the future, the confusion can be assigned.
I think this unhelpful test is neither required nor even suggested by our earlier cases, and that a much more administrable criterion is.
In past decisions considering both constitutional and statutory challenges to state compulsion of union dues, we have focused narrowly upon the union's role as an exclusive bargaining agent. In Railway Employees v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), we upheld the federal union shop provision, § 2, Eleventh of the Railway Labor Act (RLA), 45 U.S.C. § 152, Eleventh, against a First Amendment challenge. We emphasized that the statute sought only to ensure that workers would reimburse unions for the unions' bargaining efforts on their behalf. "We . . . hold that the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work is within the power of Congress . . . and does not violate . . . the First . . . Amendment." Hanson, 351 U.S., at 238, 76 S.Ct., at 721. We expressly reserved the question whether the Act could, consistent with the Constitution, allow a union to charge expenses other than those related to bargaining. As Justice Black later described the case, "Thus the Hanson case held only that workers could be required to pay their part of the cost of actual bargaining carried on by a union selected as a bargaining agent under authority of Congress, just as Congress doubtless could have required workers to pay the cost of such bargaining had it chosen to have the bargaining carried on by the Secretary of Labor or any other appropriately selected bargaining agent." Machinists v. Street, 367 U.S. 740, 787, 81 S.Ct. 1784, 1808, 6 L.Ed.2d 1141 (1961) (Black, J., dissenting) (emphasis added).
In Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), we reaffirmed that the union's role as bargaining agent gave rise to the state interest in compelling dues:
"The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money. The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged fairly and equitably to represent all employees . . ., union and non-union, within the relevant unit. A union-shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become free-riders-to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees." Id., at 221-222, 97 S.Ct., at 1792-1793 (internal quotations and citations omitted; emphasis added).
As this passage demonstrates, the state interest that can justify mandatory dues arises solely from the union's statutory duties. Mandatory dues allow the cost of "these activities"-i.e., the union's statutory duties-to be fairly distributed; they compensate the union for benefits which "necessarily"-that is, by law-accrue to the nonmembers.
Our statutory cases, construing the mandatory dues provisions of the § 2, Eleventh of the RLA and § 8(a)(3) of the Taft-Hartley Act, 29 U.S.C. § 158(a)(3), are to the same effect. In Street, we said of § 2, Eleventh:
"[I]n prescribing collective bargaining as the method of settling railway disputes, in conferring upon the unions the status of exclusive representatives in the negotiation and administration of collective agreements, and in giving them representation on the statutory board to adjudicate grievances, Congress has given the unions a clearly defined and delineated role to play in effectuating the basic congressional policy of stabilizing labor relations in the industry. . . .
"Performance of these functions entails the expenditure of considerable funds. Moreover, this Court has held that under the statutory scheme, a union's status as exclusive bargaining representative carries with it the duty fairly and equitably to represent all employees of the craft or class, union and nonunion. . . . [The unions] maintained that because of the expense of performing their duties in the congressional scheme, fairness justified the spreading of the costs to all employees who benefitted.
"This argument was decisive with Congress. . . . § 2 Eleventh contemplated compulsory unionism to force employees to share the costs of negotiating and administering collective agreements, and the costs of the adjustment and settlement of disputes." 367 U.S., at 760-764, 81 S.Ct., at 1795-1798.
We consequently held in Street that expenses relating to political and ideological activities could not be charged to nonmembers, for these were "a use which falls clearly outside the reasons advanced by the unions and accepted by Congress why authority to make union-shop agreements was justified." Id., at 768, 81 S.Ct., at 1800.
Our analysis in Ellis v. Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984), began by reaffirming that "[w]e remain convinced that Congress' essential justification for authorizing the union shop [in § 2 Eleventh] was the desire to eliminate free riders-employees in the bargaining unit on whose behalf the union was obliged to perform its statutory functions, but who refused to contribute to the cost thereof." Id., at 447, 104 S.Ct., at 1892 (emphasis added). "[W]hen employees . . . object to being burdened with particular union expenditures, the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues." Id., at 448, 104 S.Ct., at 1892 (emphasis added). Thus we concluded, for example, that the costs of union membership drives could not be charged, because, although it might be true "that employees will ultimately ride for free on the union's organizing efforts," "the free rider Congress had in mind was the employee the union was required to represent and from whom it could not withhold benefits obtained for its members." Id., at 452, 104 S.Ct., at 1894. And expenses for litigation "seeking to protect the rights of airline employees generally" could not be charged, but only those for litigation "incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit," and "other litigation . . . that concerns bargaining unit employees and is normally conducted by the exclusive representative." Id., at 453, 104 S.Ct., at 1895.
Most recently, in Communications Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988), we concluded that "§ 8(a)(3) [of the Taft-Hartley Act], like its statutory equivalent, § 2 Eleventh of the RLA, authorizes the exaction of only those fees and dues necessary to 'performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.' " Id., at 762-763, 108 S.Ct., at 2657-58, quoting Ellis, 466 U.S., at 448, 104 S.Ct., at 1892 (emphasis added).
Street, Ellis, and Beck were statutory cases, but there is good reason to treat them as merely reflecting the constitutional rule suggested in Hanson and later confirmed in Abood. Street adopted a construction of the Railway Labor Act nowhere suggested in its language, to avoid "serious doubt of [its] constitutionality." 367 U.S., at 749, 81 S.Ct., at 1790. As Justice Black argued in dissent, "Neither § 2, Eleventh nor any other part of the Act contains any implication or even a hint that Congress wanted to limit the purposes for which a contracting union's dues should or could be spent . . . [N]o one has suggested that the Court's statutory construction of § 2, Eleventh could possibly be supported without the crutch of its fear of unconstitutionality." Id., at 784, 786, 81 S.Ct., at 1807, 1808 (Black, J., dissenting). See also Beck, 487 U.S., at 763, 108 S.Ct., at 2658 (Justice BLACKMUN, concurring in part and dissenting in part) ("Our accepted mode of resolving statutory questions would not lead to a construction of § 8(a)(3) so foreign to that section's express language and legislative history.").
Our First Amendment jurisprudence therefore recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other. Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The "compelling state interest" that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of "free-riding" nonmembers; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is distinctive, however, about the "free riders" who are nonunion members of the union's own bargaining unit is that in some respects they are free riders whom the law requires the union to carry-indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others. Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.
Once it is understood that the source of the state's power, despite the First Amendment, to compel nonmembers to support the union financially, is elimination of the inequity that would otherwise arise from mandated free-ridership, the constitutional limits on that power naturally follow. It does not go beyond the expenses incurred in discharge of the union's "great responsibilities" in "negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances," Abood, 431 U.S., at 221, 97 S.Ct., at 1792; the cost of performing the union's "statutory functions," Ellis, 466 U.S., at 447, 104 S.Ct., at 1892; the expenses "necessary to performing the duties of an exclusive representative," Beck, 487 U.S., at 762, 108 S.Ct., at 2657. In making its other disbursements the union can, like any other economic actor, seek to eliminate inequity by either eliminating the benefit or demanding payment in exchange for not doing so. In a public relations campaign, for example, it can, if nonmembers refuse to contribute, limit the focus of publicity to union members, or even direct negative publicity against nonmembers, or terminate the campaign entirely. There is no reason-and certainly no compelling reason sufficient to survive First Amendment scrutiny-for the state to interfere in the private ordering of these arrangements, for the state itself has not distorted them by compelling the union to perform.
The first part of the test that the Court announces-that the activities for which reimbursement is sought must be "germane" to collective-bargaining activity-could, if properly elaborated, stand for the proposition set forth above. But it is not elaborated, and the manner in which the Court applies it to the expenditures before us here demonstrates that the Court considers an expenditure "germane" to collective bargaining not merely when it is reasonably necessary for the very performance of that collective bargaining, but whenever it is reasonably designed to achieve a more favorable outcome from collective bargaining (e.g., expenditures for strike preparations). That in my view is wrong. The Court adds two further tests, which apparently all expenditures that pass the first one must also meet, but neither of them compensates for the overly broad concept of "germaneness." I think that those two additional tests, which are seemingly derived from Part VI of the Ellis opinion, represent a mistaken reading of that case, but since they make no difference to my analysis of the expenditures at issue here I need not contest them.
I would hold that to be constitutional a charge must at least be incurred in performance of the union's statutory duties. I would make explicit what has been implicit in our cases since Street: a union cannot constitutionally charge nonmembers for any expenses except those incurred for the conduct of activities in which the union owes a duty of fair representation to the nonmembers being charged.
Applying this test, I readily conclude that a number of the challenged expenses cannot be charged to the nonmembers. Michigan defines the union's duty as that of "be[ing] the exclusive representative[ ] of all the public employees in [its] unit for the purposes of collective bargaining," Mich.Comp.Laws § 423.211 (1978) and defines collective bargaining as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder," id., § 423.214. Public relations activities, though they may certainly affect the outcome of negotiations, are no part of this collective bargaining process. For the same reason I agree that the challenged lobbying expenses are nonchargeable. I emphatically do not agree that costs of the parts of the union's magazine "that concern teaching and education generally, professional development, unemployment, job opportunities, award programs . . . and other miscellaneous matters," ante, at 529, can be charged to nonmembers. As the Court appears to concede, the magazine items challenged here have nothing whatever to do with bargaining, and I cannot understand how they can be upheld even under the Court's own test. The Court suggests that they fall within the de minimis exception of Ellis, see 466 U.S., at 456, 104 S.Ct., at 1896. But the charges allowed on that basis in Ellis (the cost of refreshments at union business meetings and occasional social functions) were de minimis not only in amount but also in First Amendment impact. They were constitutional because:
"the communicative content is not inherent in the act, but stems from the union's involvement in it. The objection is that these are union social hours. 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." Id., at 456, 104 S.Ct., at 1896.
Here, in contrast, the newsletter is inherently communicative; that the Court thinks what it communicates is "for the benefit of all," ante, at 529, does not lessen the First Amendment injury to those who do not agree.
The Court permits the charging of all expenses of sending delegates to conventions held by the Michigan Educational Association (MEA), the National Educational Association (NEA), and the 13E Coordinating Council. Quoting Ellis, 466 U.S., at 449-450, 104 S.Ct., at 1892-1893, the Court says that "[c]onventions such as those at issue here are normal events . . . and seem to us to be essential to the union's discharge of its duties as bargaining agent." Ante, at 530. The conventions at issue in Ellis, however, were those of the union-bargaining agent itself; and the costs were chargeable because "if a union is to perform its statutory functions, it must maintain its corporate or associational existence, must elect officers to manage and carry on its affairs, and may consult its members about overall bargaining goals and policy." 466 U.S., at 448, 104 S.Ct., at 1892. But that reason obviously does not apply to costs for attendance at the convention of another organization with which the union-bargaining agent chooses to affiliate. It is not "essential to [the Ferris Faculty Association's] discharge of its duties as bargaining agent," id., at 448-449, 104 S.Ct., at 1892-1893, that the MEA, NEA and 13E Coordinating Council "maintain [their] corporate or associational existence, . . . elect officers," etc. It may be that attendance at certain meetings of those organizations, where matters specifically relevant to the union's bargaining responsibilities are discussed, are properly chargeable, but attendance at all conventions seems to me clearly not.
Another item relating to affiliated organizations that the Court allows to be charged consists of a pro rata assessment of NEA's costs in providing collective-bargaining services (such as negotiating advice, economic analysis, and informational assistance) to its affiliates nationwide, and in maintaining the support staff necessary for that purpose. It would obviously be appropriate to charge the cost of such services actually provided to Ferris itself, since they relate directly to performance of the union's collective-bargaining duty. It would also be appropriate to charge to nonunion members an annual fee charged by NEA in exchange for contractually promised availability of such services from NEA on demand. As Ferris conceded at argument, however, there is no such contractual commitment here. The Court nonetheless permits the charges to be made, because "[t]he essence of the affiliation relationship is the notion that the parent will bring to bear its often considerable economic, political, and informational resources when the local is in need of them." Ante, at 523. I think that resolution is correct. I see no reason to insist that, in order to be chargeable, on-call services for use in the bargaining process be committed by contract rather than by practice and usage. If and when it becomes predictable that requested assistance from the NEA will not be forthcoming, the nonunion members would presumably have cause to object to the charges, just as they would have cause to object if written contracts for the services would predictably not be honored.
I assuredly do not agree, however, with the other reason that the Court gives for its conclusion on this point-or perhaps it can more accurately be characterized as the general principle that the Court derives from its conclusion: namely, that chargeability does not require "a direct relationship between the expense at issue and some tangible benefit to the dissenters' bargaining unit." Ante, at 521-522. It assuredly does, and a tangible benefit relating to the union's performance of its representational duties. It is a tangible benefit, however, to have expert consulting services on call, even in the years when they are not used.
The final category of challenged expenses consists of the costs of preparing for a strike. In conducting a strike, a union does not act in its capacity as the government-appointed bargaining agent for all employees. And just as, for that reason, nonmembers cannot be assessed the costs of the strike, neither can they be assessed the costs of preparing for the strike. It may be true, of course, that visible preparations for a strike strengthen the union's position in negotiations. But so does the strike itself, and many other union activities, including lobbying. The test of chargeability, as I have described it, is not whether the activities at issue help or hinder achievement of the union's bargaining objectives, but whether they are undertaken as part of the union's representational duty.
For the foregoing reasons, I concur in part and dissent in part.

## Notes

* ↑ The Court proceeds on the assumption, as have our earlier cases, that all forced contributions to a union implicate the First Amendment, whether or not the activities to which the contributions are directed are communicative. That assumption has not been challenged in the present appeal.
* ↑ Part VI of Ellis addresses the constitutionality, under the First Amendment, of the compulsory payments (for three separate categories of activities) the opinion had earlier found the RLA permitted. As I read it, it contains two discussions: First, an explanation of why the First Amendment is not violated by compelled contribution for those two categories of activity that passed the RLA "statutory duty" requirement. Since, as I have discussed in text, that "statutory duty" requirement is itself the constitutional test and justification, this explanation is little more than a tautology (which is why it could be so brief, all of Part VI occupying little more than 2 pages of a 19-page opinion): The compelled contributions did not violate the First Amendment because they involve "little additional infringement of First Amendment rights beyond that already accepted" in approving the constitutionality of the "union shop," 466 U.S., at 456, 104 S.Ct., at 1896, i.e., enforced dues for the union's collective-bargaining activities, see id., at 447, 104 S.Ct., at 1891. The second discussion in Part VI did set forth an additional requirement for constitutionality, but it pertained only to the one compulsory payment that was not in furtherance of the "statutory duty," but had survived the statutory analysis only because its amount was de minimis, see id., at 450, 104 S.Ct., at 1893. That additional requirement was that its First Amendment impact must be de minimis as well-i.e., the expenditure must not be for communicative activity, so that it "does not increase the infringement of . . . First Amendment rights already resulting from the compelled contribution to the union," id., at 456, 104 S.Ct., at 1896.
* ↑ The Court suggests, ante at 526, that this "broad language" fails to provide guidance as to the scope of the union's statutory duties. It seems to me, however, that it makes entirely clear that the union's duties extend only to negotiating an agreement and resolving disputes under it. This demonstrates, coincidentally, the error of the Court's assertion that it will be burdensome for courts to construe the scope of union duties under applicable laws. That assertion is implausible in any event, since courts routinely perform such construction when deciding suits alleging a breach of the union's statutory duty.
* ↑ The Court suggests, ante, at 532, n. 6, that the cost of NEA assistance would not be chargeable under the "statutory duties" test because the use of such assistance is not affirmatively required by the Michigan statute. This distorts what I mean by the "statutory duties" test. I suppose union representatives are not required to bring paper and pencils into negotiating sessions, so long as they can commit relevant matters to memory; but I would certainly permit the union to charge the cost of such materials, because they are reasonably necessary to effective performance of the statutory duty of bargaining. Such expenses are to be distinguished from those that may improve the outcome of the negotiations, but do so through some means other than the bargaining process.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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