LEHNERT v. FERRIS FACULTY ASSN
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Raymond J. LaJeunesse, Jr.
Chief Justice Rehnquist: We'll hear argument now in No. 89-1217, Jones Lehnert v. Ferris Faculty.
Let's try to move along, Mr. Kneedler.
Mr. LaJeunesse, you may proceed whenever you're ready.
Mr. LaJeunesse: Mr. Chief Justice, and may it please the Court:
Professor Jim Lehnert and his fellow petitioners in 1981-82 were nonunion faculty members at Ferris State College, a 4-year institution of higher education in the State of Michigan.
They were compelled by the college to pay as a condition of their employment a service fee to their exclusive bargaining representative, the Ferris Faculty Association.
The lower courts, with Justice Merritt of the court of appeals vigorously dissenting as to all but one activity, held that Professor Lehnert and his colleagues' First Amendment rights were not violated when those service fees were used for certain activities of the association and at State and national affiliates, the Michigan and National Education Associations.
Two basic questions are before the Court.
First, may Professor Lehnert and his colleagues be required to subsidize financially activities which are not conducted on behalf of their bargaining unit but on behalf of individuals elsewhere in other bargaining units in Michigan and in other States, on behalf of employees who are not faculty members in higher education but teachers in kindergarten through 12th grade, educational support personnel, or nurses.
The second major issue is whether Professor Lehnert and his nonunion colleagues can be required to support financially political and ideological activities that are not part of the bargaining process anywhere.
What activities are we talking about?
Most of the activities at issue on this appeal both do not concern the Ferris bargaining unit and are not integral to the bargaining process anywhere.
For example, two of the primary expenditures at issue are the costs of millage campaigns to increase millage property taxes and lobbying against State legislation that would have provided property tax relief.
Ferris State College receives not one cent from millages or from property taxes, so therefore, Ferris State College was not affected by these activities at all.
The only effect on Professor Lehnert and his colleagues was as competitors for scarce public resources, and if they lived in the district where the taxes were raised, their taxes went up.
They're affected as taxpayers.
Another example of an issue or an activity in this category was the study that the National Education Association conducted of school finance in Arizona.
That had to be a political and ideological activity and it wasn't related to Ferris State College because Arizona did not even permit collective bargaining for educational employees at the time in question.
Unknown Speaker: Why do you say it had to be a political or ideological activity?
Mr. LaJeunesse: It could not be part of the political bargaining process in Arizona, because bargaining was prohibited by the State of Arizona for educational employees.
Unknown Speaker: Well, so, you define any political and ideological as meaning any activity that does not accrue to the benefit of the bargaining unit?
Mr. LaJeunesse: No, Your Honor, political and ideological is any public advocacy or dealing with Government outside the bargaining process, petitioning of government speech and association.
Unknown Speaker: Well, I thought this was just a study out in Arizona?
Mr. LaJeunesse: It was a study of school finance, and school finance in Arizona was accomplished only through legislation, not through bargaining.
Unknown Speaker: Well, I would think your argument would be, not that that was political or ideological, but since it didn't benefit the members of the bargaining unit it was no good.
I would think there's a category of things--
Mr. LaJeunesse: Our argument, Your Honor, is that it's both.
It neither concerned this bargaining unit nor was it part of the bargaining process anywhere.
Unknown Speaker: --But if, if one sets out to do a neutral study that just doesn't have much to do with what the person is at, I would not think that's political or ideological.
I think it's more better defined as something that is, is not perhaps germane to the bargaining process.
Mr. LaJeunesse: Your Honor, I think it related to the question of taxes and educational appropriations in the State of Arizona as well as being outside the bargaining unit in this case.
Unknown Speaker: May I, may I just ask you a little more about this millage point?
Supposing the lobbyists for the national union sought more money for faculty salaries in colleges.
They either wanted a minimum wage or just wanted more appropriations to expand the faculties and new curricula and so forth.
Would you say that was permissible or impermissible?
Mr. LaJeunesse: Impermissible, Your Honor.
Unknown Speaker: Because it's--
Mr. LaJeunesse: It's outside the bargaining process.
It's an activity which is at the core of the First Amendment as equally as the support of candidates for public office, as this Court said in Meyer v. Grant.
Unknown Speaker: --So, so you really don't rely particularly on the fact that the millage happened to be for grammar schools and so forth rather than colleges?
Mr. LaJeunesse: Well, Your Honor, I'm saying that there's a bright-line test--
Unknown Speaker: I mean, your argument... let me put this way.
Your argument on that point is much like your argument on anything outside the bargaining unit is impermissible.
I mean, you know, conventions and for the national organization and the like.
Mr. LaJeunesse: --Your Honor, I think there's a bright-line test.
There are two standards which this Court has consistently applied and which in fact are the... based on a statute, and that is if an activity is either outside the bargaining process or does not concern the bargaining unit then it's not within the governmental interest that this Court has found to underlie a constitutional agency shop.
The governmental interest which this Court found to underlie a constitutional agency shop in Abood, which involved the same statute that's at issue here, are the same interests that the Court has found with regard to the Federal labor statutes in the cases from Hanson through Beck and that is to advance labor peace within the bargaining units by having one bargaining agent to make... make and enforce a single contract for the employees in that unit to prevent the conflict which would arise if you had more than one representative trying to represent the employees in the same unit.
And secondly to avoid the risk of the free rider, the employee who doesn't join the union and is not paying his pro rata share of the costs of the statutory functions which the union as bargaining representative performs for the employees in that bargaining unit in making and enforcing the labor contract.
So both of those interests come back to that dual bright-line test.
Unknown Speaker: Well, Mr. LaJeunesse, I'm not sure that Abood drew a so-called bright-line test for public sector employees.
The argument made on the other side is that multi-unit unions effectively strengthen the local bargaining unit and that it's just like buying an insurance policy and spreading the risk that those expenses outside the bargaining unit can strengthen the local unit as the need occurs locally.
How do you answer that?
Justice O'Connor, two answers.
First, the argument that the local is strengthened by the activities elsewhere is the same argument the railway clerks' union made in the Ellis case for organizing... compelling support of organizing and compelling support of litigation concerning bargaining... other bargaining units, and the Court rejected it in Ellis.
The Court established a standard which says that what is chargeable is only those activities that are part of the performance of the statutory functions of representing the employees, in dealing with the employer on labor management issues.
Or germane... not part of.
It doesn't have to be part of, does it?
Mr. LaJeunesse: Germane... the definition of germane under both law and--
Unknown Speaker: But anyway it has to be germane--
Mr. LaJeunesse: --Germane is closely related, Justice White.
Unknown Speaker: --It has to be germane to the services under the particular bargaining contract.
Mr. LaJeunesse: That's correct.
Unknown Speaker: And the particular unit.
Mr. LaJeunesse: Germane and closely related, Your Honor.
And the second answer to Justice O'Connor's question is that affiliation is not an insurance policy.
It's not a service contract.
There is no legally enforceable contract between the local and the State and national organizations which specifies as service contracts do and as insurance policies do what services will be provided, what specific services will be provided.
Unknown Speaker: If there were--
Mr. LaJeunesse: The contingencies--
Unknown Speaker: --would it make a difference?
Mr. LaJeunesse: --If... if you had a legally enforceable contract spelling out the bargaining services that had to be provided and when they had to be provided, and you had the allocation necessary to separate... and this is the second distinction between the service contract and affiliation... if you had the necessary recordkeeping to separate out the nonbargaining functions of the union, then the answer might be that the costs would be chargeable.
But it would be costs that the union approved, actual costs that there was a basis in actual costs for the charge.
But this Court has said in the cases beginning with Street not that affiliation itself is a cost of collective bargaining that can be charged, but that there must be a breakdown of the services provided by the state or national affiliate that can be charged to the nonmembers.
Unknown Speaker: Going back to lobbying for a minute, I suppose in the public sector if the union is out lobbying to try to get increased health benefits, for example, for public employees including those in the bargaining unit or a tax increase to fund payment of teachers' salaries Statewide that would affect those in the bargaining unit as well.
Now you say none of that is chargeable?
Mr. LaJeunesse: That's correct, Your Honor.
Unknown Speaker: And why not?
Mr. LaJeunesse: --I... because, number one, we're dealing with an activity which the state has excluded from the special bargaining process and has left in the normal political processes.
It's a matter of subject to decision of the State legislature.
In the case of millages, the electorate at large.
So the State has decided that it's not within that special process of collective bargaining and therefore as to that process, the employee must be treated not as an employee but a citizen, a taxpayer, a consumer, a competitor for scarce public resources, and in the case of some of these matters, as a parent.
That's how he's affected.
The in... when you get outside that narrow, special process which the State has set up for collective bargaining, you're infringing on core First Amendment rights, which this Court has said are the same as the rights that exist with regard to the support of candidates.
If... if you don't draw the line at the process, what are the limits?
The same thing could be said with regard to a private sector labor union that when it lobbies Congress for minimum wage legislation, that could be chargeable.
But this Court has said in Street and in Ellis and in Beck that can't be charged in the private sector, and the Court has said in Abood and in Keller that the First Amendment rights of public employees and private employees are the same.
So I don't think there's any place you can draw the line except at the process because it's a slippery slope.
If lobbying is chargeable, why shouldn't support of candidates be chargeable?
The election of a school member is probably more important to the education union than any other decision that occurs.
But it's in a process which the State has excluded from bargaining.
And I think we have to go back to the basic question of what type of scrutiny this Court applies when we're dealing with infringements on First Amendment rights.
The Court has said that even requiring the employee to pay for the costs of bargaining on his own behalf significantly impacts on his First Amendment rights.
Here we're talking about making him pay for bargaining on behalf of other employees.
Therefore, as to him those aren't his terms and conditions of employment.
Those are matters of industrial relations and in the public sector, politics.
Unknown Speaker: Mr.... Mr. LaJeunesse, what if there were pending in the Michigan legislature a bill that would have directed the 10-percent reduction in the appropriation for all colleges like Ferris State College?
Do you think the bargaining unit, the respondent here, could charge to the agency shop people the... whatever costs they spent in lobbying against that?
Mr. LaJeunesse: No, Your Honor, I don't believe so because it's outside the process.
It's still in the normal political processes.
If you say that they can lobby on that, then why can't they lobby against an increase in the budget for social welfare programs, because if those increase the amount of money available for education is decreased?
Why can't they lobby for increased in the income tax, because that money can be spent for education?
Unknown Speaker: Could... could the... the union--
--Also, what about a program to register and vote?
Mr. LaJeunesse: A program to register and vote, Your Honor?
Unknown Speaker: Uh-huh.
Mr. LaJeunesse: I think that clearly would be nonchargeable.
I think it is under this Court's prior decisions.
Unknown Speaker: You think it's what?
Mr. LaJeunesse: Not constitutionally chargeable to the objecting employee... program to register and vote, as I understood the Court's question.
Unknown Speaker: Could, could a union publish in its own publication the voting record of, say, the school board or state legislators with respect to issues that affect the bargaining unit?
Mr. LaJeunesse: Justice Kennedy, they could publish it.
We're not talking--
Unknown Speaker: Well, I mean with the fees of the dissenters?
Mr. LaJeunesse: --But I do not believe they could use the dissenters' dues for that, Your Honor.
No, I don't think so.
I think that answer is clear under Abood and this Court's decisions in the private sector.
That's not even as close as the question of funding of higher education.
Unknown Speaker: Mr. LaJeunesse, one category of charges that you say were improper really is quite different from the others in that you concede that they're... that they're not part of the legislative process and you can see that they do narrowly affect the particular bargaining in the bargaining unit.
But you nonetheless say they are not chargeable, and I'm referring to the costs of preparing for an illegal strike which never occurs.
Mr. LaJeunesse: Yes, Justice Scalia.
Unknown Speaker: Now, why are they not chargeable?
Is it illegal to prepare for an illegal strike?
Mr. LaJeunesse: --I don't think the activity has to be illegal for it to be not chargeable.
The point is for an activity to be chargeable to the dissenting nonmember it has to be justified by a governmental interest.
And the State of Michigan has no interest in compelling nonmembers to make threats of an illegal act.
The fact that--
Unknown Speaker: Well, it... it has no governmental interest... I mean, it... by parity of reasoning you can say it has no governmental interest in paying higher wages to public employees.
Mr. LaJeunesse: --I think that's correct, Your Honor.
Unknown Speaker: So then nothing is chargeable, because--
Mr. LaJeunesse: No, what--
Unknown Speaker: --you don't want these bargaining units to be successful.
There's no governmental interest in having these--
Mr. LaJeunesse: --The governmental interest, Your Honor, is in reimbursing the employee... the union for its cost of performing its statutory functions.
If the State interest were in higher wages and benefits for public employees, it could accomplish that purpose without an agency fee.
It could simply pass legislation increasing wages and benefits.
Unknown Speaker: --But one of its statutory functions is conducting... conducting negotiations with all of the maneuvering and feinting and what not that negotiations entail.
Certainly if they walk out of a meeting 1 day, drag on the meeting for 5 days when it could have lasted only one, but that's part of their tactics, you say that's chargeable, wouldn't you?
Mr. LaJeunesse: But that's not--
Unknown Speaker: So what about this phony preparation for a strike which would never occur?
Why isn't that just part of... it's part of the negotiating process.
Mr. LaJeunesse: --Your Honor, I don't think it's part of the negotiating process any more than it would be if the Ferris Faculty Association had gone out and hired the Mafia to threaten Ferris State College that they would break the legs of the members of the Board of Control--
Unknown Speaker: Now you're making a different argument.
Now you're making a different argument.
Now you're saying it's illegal to prepare for an illegal strike.
Mr. LaJeunesse: --Well, I'm saying--
Unknown Speaker: Or illegal to threaten an illegal strike.
Mr. LaJeunesse: --The Michigan Court of Appeals and the Michigan Supreme Court have held in the Male case, which we cite in the briefs, that it was against the public policy of Michigan to require the nonmembers to contribute to a fund, a strike fund, which would in the future be used to fund strikes.
And the existence of that fund obviously threatens employers just as much as the threats in this case, yet it was held to be against the public interest of Michigan to require the nonmembers to support that preparation for a strike which would be illegal under Michigan law.
And I would also add, Justice Scalia, that the record directly contradicts... the record as to the... the internal union documents which are in evidence, directly contradict the testimony of the union witness who said that this was merely a bargaining employee.
If you read those documents which are cited in that part of our brief you will see that, when they are talking to each other in private, the union intended to go out on strike, that those were real preparations for a real strike which just happened not to occur.
Unknown Speaker: May I... may I... this... your asking us to look at the testimony and so forth, brings to mind this question.
To what extent do you think the question of whether an activity is germane is a question of law or a question of fact?
And the reason I ask that is I guess we have two courts who have wrestled with an awful lot of detail.
And as I understand... now maybe... maybe my recollection is incorrect, that with respect to the local union, you... about 80 percent or something like that of their activities were held okay to be charged, but as respect to the Michigan union and the national unit, something like 95 percent of those were held to be impermissible.
So you substantially won the case as to Michigan and any... is that... is my recollection right on that?
Mr. LaJeunesse: That's correct, Your Honor.
But the question of what kind of activity, whether a particular type of activity is a question of law.
In fact, is a content-based regulation of speech, as the Court said in Riley v. National Federation of the Blind, when you are making a decision as to whether somebody would be compelled to make a speech that they would not on their own make, that by definition is a content-based regulation of speech.
Unknown Speaker: But nobody is being compelled to make a speech.
They're being compelled to pay money to a union representative who primarily is representing their collective bargaining... interest and may incidentally say something that you disagree with.
Mr. LaJeunesse: But this Court held in Abood--
Unknown Speaker: Yeah.
Mr. LaJeunesse: --and in Elrod that requiring those financial contributions which are then used to speak on issues as to which the employee is in opposition is tantamount to coerce belief.
It is coerce speech.
The fact that it was done through... through a contribution makes it no less protected by the First Amendment, as the Court said in Abood.
Unknown Speaker: So you say it's a pure question... each of these issues is a pure question of law in your view?
Mr. LaJeunesse: That's correct.
Whether a particular expenditure fits within one of the categories, once the category are defined--
Unknown Speaker: Well, again, on this strike business, I mean, a lot of the money was in a pot there that they said might... might finance a strike and might finance negotiation.
It's kind of mixed the little bit, the use of that fund I think.
Mr. LaJeunesse: --Well, Your Honor, I don't believe it was.
I believe that the monies that are at issue here were used to pay for a strike headquarters which they didn't need to have union meetings.
Unknown Speaker: But they did have union meetings at the strike headquarters?
Mr. LaJeunesse: To discuss going out on strike.
Unknown Speaker: Well, and their bargaining position.
Mr. LaJeunesse: It was... the only purpose of having a separate strike headquarters instead of their normal meeting place was to threaten the college with what would be an illegal act had it occurred.
Unknown Speaker: Was there any finding one way or the other on whether they discussed informational picketing, which I take it is not unlawful, I would assume.
Mr. LaJeunesse: Your Honor, there was... there were expenditures on informational picketing.
Unknown Speaker: Was this part of the union hall meeting?
Mr. LaJeunesse: Those expenditures... we don't have the minutes of the meeting in the record, Your Honor.
There was informational picketing that went on during this period, but our... that informational picketing was directed at the general public.
And therefore, under this Court's decisions in Pickering and Madison Joint School District, is public discussion of matters of public concern as to which the nonmember must be treated for First Amendment purposes as a citizen, not just an employee.
In fact in Madison Joint School District the situation was essentially the same.
The employee wanted to... spoke publicly on an agency shop proposal then in negotiation.
And this Court held that he had an absolute right to make that speech, that it was a matter of public concern, not just a matter of employer/employee relations.
Unknown Speaker: Well, suppose there's informational picketing at the headquarters of the school board, is that... in front of the building.
It's obviously directed both ways, isn't it?
You don't just pick up the board members by going to their house, tell the public what your concern is with board members' policy.
That's not permissible in your view... with the public union?
Mr. LaJeunesse: I think not if they're picketing publicly, Your Honor.
And we're not just talking about that picketing here, Your Honor.
We're talking about buying ads in the local newspaper, as the record shows.
Unknown Speaker: Can I ask you--
Mr. LaJeunesse: It was not... it was advertising not just picketing at the school board meeting.
Unknown Speaker: --Could I ask you one other hypothetical?
Supposing your teachers' salaries were fixed by statute, would it be impermissible under your view to lobby for a change in the statutory provisions?
Mr. LaJeunesse: Your Honor, that's not this case--
Unknown Speaker: I know it isn't--
Mr. LaJeunesse: --I don't know the specifics of it--
Unknown Speaker: --but our salaries are fixed by statute and I can... if not--
Mr. LaJeunesse: --and I think the specifics of it might make a difference.
But if the unions--
Unknown Speaker: --Why would it make a difference?
Mr. LaJeunesse: --were merely involved in the technical process of providing testimony at a State legislative hearing--
Unknown Speaker: No, they do everything you object to.
Mr. LaJeunesse: --that might be one thing.
But if the union doing, as it was here, not just testifying at a hearing, but engaged in a grassroots lobbying campaign, putting together coalitions of citizens and teachers--
Unknown Speaker: Yes, that's exactly what I'm... that's my--
Mr. LaJeunesse: --buying advertising, that is core First Amendment activity and it can't be charged--
Unknown Speaker: --And you--
Mr. LaJeunesse: --to the dissenter.
Unknown Speaker: --Even in... even in my hypothetical?
Mr. LaJeunesse: Even in your hypothetical, Your Honor.
If I... if I may, I would like to reserve the balance of my time.
Unknown Speaker: Very well, Mr. LaJeunesse.
Mr. Chanin, we'll hear from you.
Argument of Robert H. Chanin
Mr. Chanin: Thank you, Mr. Chief Justice, and may it please the Court:
To help establish a context I would like to begin by very briefly commenting about the nature of the three unions that are involved in this case.
The first... and to clarify my acronyms also.
The Ferris Faculty Association, FFA, is the bargaining representative for a unit of 500 faculty members at the college.
It is a small local union which in the year in question, 1981 and '82, had a budget of some $18,000.
FFA is affiliated with two much larger unions with substantially greater and more diverse resources.
At the State level it's affiliated with the Michigan Education Association, MEA, which in that year had a budget in excess of $18 million; and at the national level, it's affiliated with the National Educational Association, the NEA, which had resources in excess of $70 million.
The courts below held that the petitioners may be charged for the course of certain activities engaged in by MEA and NEA.
Because these activities did not directly involve the collective bargaining process at Ferris State College, petitioners contend that they are in effect being asked to subsidize employees in other bargaining units represented by MEA and NEA to pay for services provided to these other employees which is of no benefit to the members in their own bargaining unit.
The petitioners are wrong.
Unknown Speaker: They don't say as of no benefit.
They say does not pertain to their bargaining process.
Mr. Chanin: --They're wrong... they're wrong in that as well, Your Honor.
Their characterization fundamentally misstates the situation, and it totally misses the point of union affiliation and its purpose.
Affiliation is essentially a pre-paid delivery service by which larger parent organizations help its local affiliates to carry out their representational responsibilities, not in the sense that Justice O'Connor asked, not merely to strengthen the local unions in a general sense.
It is to provide them with resources and services in the collective bargaining area on an as-needed basis.
In Abood, this Court--
Unknown Speaker: Is that in the contract?
Mr. Chanin: --Which contract?
Unknown Speaker: Is that in the contract of association between--
Mr. Chanin: It's in the essence of affiliation, Your Honor, in three respects.
One, the contract of affiliation is indeed a contract between parent organizations and locals.
The guidelines and the policies of the parent organizations, many of which are in the record in this case, obligate the parent organization to provide assistance to the local in a variety of collective bargaining-related areas.
And the most important enforcement mechanism here is political reality.
If a parent organization failed to respond to one of our locals when it needed us in a collective bargaining crisis, we would not be the parent organization as soon as that crisis ended.
So we must indeed respond, and I think the answer to your question is, yes, it is built into the very nature of the affiliation relationship.
Unknown Speaker: --You don't assert it's a legal obligation.
You assert it's a practical obligation.
Mr. Chanin: That's... it's even questionable on legal.
I think it is unquestionably a practical obligation.
I am not sure that locals would not have a cause of action under State law to enforce the policies and guidelines of the parent organization.
It never comes to that, because it is overwhelmed by the political reality.
We must respond to those needs.
What this Court stated in Abood was that the designation of a union as an exclusive representative carries with it great responsibilities.
It referred to the difficult and continuing tasks and indicated that to carry out these functions a bargaining representative needs the service of lawyers, expert negotiators, economists, a research staff, as well as general administrative personnel.
What has happened here is by selecting as a bargaining representative a local union that was affiliated with larger parent organizations, the majority of employees in the Ferris College bargaining unit have chosen to provide and fund certain of those responsibilities on a unit... a cross unit basis with a sharing of the risks in which all of the people who benefit, the members and the feepayers, are charged a periodic uniform flat fee.
Unknown Speaker: You certainly make the union movement sound like a very business-like operation.
I've always heard it called the movement.
I thought that people in one union would contribute to the international because they believed in unionism.
They don't care whether they're getting back penny for penny an investment that they're making in the international.
There's none of that here?
Mr. Chanin: Your Honor--
Unknown Speaker: This is strictly a business operation?
Mr. Chanin: --It hurts me... it hurts me to say that--
Unknown Speaker: Yes.
Mr. Chanin: --that is not the sole basis for affiliation.
It is partially there, and it is part of why people join unions--
Unknown Speaker: Of course it is.
Mr. Chanin: --But unionism is a competitive area.
There are unions competing on a day-to-day basis for the allegiance of employees.
The ones who get those employees, the ones who are voted in, are the ones who can deliver when they are called upon.
And delivery in a collective bargaining sense means when a local has a crisis, a crisis beyond its own means to deal with, the parent organizations are there.
They are there with what the Court referred to in Abood, the lawyers, the negotiators, and the research people.
Now petitioners contend--
Unknown Speaker: Mr. Chanin, can I interrupt for a second?
Your argument it seems to me would justify the total assessment of the dues, a portion of the dues that was charged to the MEA, and I understand the district court found about 97 percent was impermissible.
Mr. Chanin: --Well, the 97--
Unknown Speaker: Isn't that right?
Mr. Chanin: --Yes.
Unknown Speaker: And we're fighting about a little squib at the tiny end of the thing.
Mr. Chanin: Let me just clarify the factual finding of the court and then respond directly to your question, Justice Stevens.
The lower courts held we only could get 3 percent and made it perfectly clear that it was quite likely we put in substantially more in terms of chargeable activity.
The court's position was we blew it on the proofs, on evidence.
Unknown Speaker: You didn't meet your burden of proof.
Mr. Chanin: We didn't meet the burden.
The theory that you espouse, why don't we charge them 100 percent, breaks down for this reason.
The vast bulk of the affiliation fee is for this availability.
That's what it's mostly for, but we all know that is not the total of the affiliation fee.
In addition, a small portion of the affiliation fee pays for member-only benefits that the parent organizations provide.
It does pay for some ideological or political activity that is unrelated to collective bargaining.
If we charge the feepayers the full amount of the fee, they would be paying a disproportionate percentage for the availability component as compared to the members.
So what we need in essence is a pricing mechanism.
We need a discounting mechanism.
How do we take that affiliation fee to the parents and kick out that small portion that isn't for availability?
There is in fact no perfect way to do it.
What we have in essence done is taken the guidance that this Court has given us in a slightly different context of how you analyze out a union's budget.
And what we have said about the parent organizations is we will discount out those things that we really can charge for by looking at what activities are germane to collective bargaining in the generic sense.
In a conceptual way, Your Honor, what we say is this.
Those parent organizations constitute a pool of resources, a pool that this local or any other local can draw on in times of need.
And what we do is we say, in a generic way, what types of resources, what types of skills, what types of activities, fit within that resource pool, and that's why we make that kind of a deduction from the affiliation fee.
Unknown Speaker: Mr. Chanin, in the Ellis case this Court held, with most Justices joining the opinion as I recall, that objectors could not be charged for the costs of general litigation unless the local bargaining unit was directly involved.
It seems to me that your argument would lead one to conclude that that case was wrongly decided.
Mr. Chanin: No, Your Honor, not at all.
Let me say about that holding in Ellis.
That was a statutory holding.
The Court began by analyzing what of the activities in question were chargeable under the Railway Labor Act, and only as to those activities that it found met the standard under the Railway Labor Act did it address directly the constitutional issue.
The litigation never crossed that bridge.
So what we have with litigation then is basically a statutory holding.
Unknown Speaker: Well, it was construed to RLA ever since Hanson very much in the light of the constitutional provisions, have we not?
Mr. Chanin: --Yes, you have, Your Honor.
And I have no question but that Ellis in many respects sets the basic test for First Amendment adjudication and indeed this Court recognized this last term in Keller when it applied it to a constitutional base.
But in Ellis itself, as far as not the test, but the application of that test to specific items, the Court only applied the constitutional test to those items it had found chargeable under the RLA and litigation of a general nature did not make it.
But having answered it that way and attempted to distinguish Ellis my answer to your question is yes.
Under... first of all, I believe litigation may have a different meaning in the public sector in any event.
But under our theory in which you are paying for the availability of this service, I do believe the litigation would be brought in.
Because it's not relevant whether the specific activity in the resource pool of the parent organizations is done on behalf of Ferris.
It is whether it is an activity in the generic sense that is germane to collective bargaining.
Unknown Speaker: But I'm really in doubt whether that rationale can be squared with Ellis on the so-called statutory ground.
It seems to me to go substantially beyond what the Court said there.
Mr. Chanin: Well, Your Honor, I don't think so.
But let me look at the other points of Ellis if I may.
What Ellis did, and I think the focus when we look at Ellis should be on the three items that the Court did indeed find chargeable under the Railway Labor Act and clearly within the constitutional range as well.
And there are three activities there.
One was a national convention, that is, a convention that dealt with all of the bargaining units represented by BRAC, not simply Western Airlines.
It allowed social activities.
These were not social activities that took place in San Diego, wherever Western Airlines is located.
These were social activities of the international union.
And it allowed chargeable... as chargeable the national publication which reported on a variety of activities engaged in by the International, many or indeed most of which had nothing whatsoever to do with the Western Airlines bargaining unit.
Now in the briefing, the petitioners attempt to distinguish that publication point.
What they say is the literal language of Ellis was you can only charge... you can only charge for writing up what you can charge for doing.
And therefore, to say they sustained a national publication doesn't make our point.
But it does, if you read the holding in the case.
Of course, at the very point where the Court in Ellis said you can only charge for what you have in that publication that you can actually charge for doing, it dropped a footnote.
And the footnote was, and therefore, you cannot charge for the litigation and the organizing, both of which it took out.
And the holding in the case was to remand to the lower court simply to excise out of chargeability to two activities it had incorrectly held chargeable under the RLA: organizing and general litigation.
The Petitioners contend in this case that this multi-unit cost-sharing system violates their First Amendment rights, and that they can only be required to pay their share of the actual services delivered by the parent organizations to them on a pay-as-you-go basis.
Whatever we have... may have put in in a particular year in dealing with their employer is all that they can pay.
Let me make clear here what the legal issue is.
The issue is not whether the type of pay-as-you-go delivery system that the petitioners urge is constitutional.
The question is rather whether the Constitution requires every bargaining unit to use that system or whether the State of Michigan can constitutionally conclude that it would like to reject that system and that a cross unit, a risk-sharing type of system as we have here fulfills or advances the State's interest in labor peace and stability.
We think that if you look at the purpose of affiliation, the answer to this question is clear.
The aggregated payments that MEA and NEA get are not used simply to defray the actual cost of providing services to the Ferris local or to other locals.
They are used to establish and maintain the type of institution with an expert staff of lawyers, of negotiators, and of researchers that is available when called upon by Ferris or any other local to provide these services on an as-needed basis.
Now, if in fact the petitioners simply paid for the services that they received in a particular year, they would really be freeloading or free riding on two specific values of affiliation.
They would be not contributing to the costs incurred by a parent union in assembling and maintaining the type of institution that is necessary to be available when called upon.
And indeed the mere fact that it has large affiliates and that it has resources to call upon is itself of present value to the union.
It affects its day-to-day operation.
We don't have to squirrel away money as a reserve fund for the year in which we may have catastrophic costs, a year we bargain a contract, a year we have major arbitrations.
We can do our day-to-day services knowing we have that to call on.
And the fact that we have that to call on has an impact on the employer.
Any prudent employer, knowing we are backed by the MEA and the NEA, will take that into account in its dealing with the local union.
We are aware, Your Honors, of no First Amendment principle which would require the State of Michigan to adopt a unit-by-unit pay-as-you-go-system.
We think it is a reasonable and constitutionally allowable judgment for the State of Michigan to conclude that a cross unit risk-sharing system of providing services through affiliation is constitutional.
And I would note to you that every other legislature which has looked at this question has made the same judgment, and that is why the overwhelming majority of employees and the overwhelming majority of bargaining units in this country have chosen to carry out their representational functions by an affiliation arrangement where they operate on a multi-unit cost basis and share the risk.
Let me turn now, if I may, to the second issue presented.
The specific activities that the court below charged the petitioners for.
Because this Court indicated that an agency shop has an impact on the First Amendment rights of objecting feepayers, petitioners argue that they can only be required to pay for those activities that are essential or necessary to the union's performance of its statutory functions.
Phrased otherwise, we can only charge them for things that the local union must do pursuant to a statutory obligation or its duty of fair representation.
But that argument, Your Honors, is squarely at odds with the position taken by this Court in Abood, in Ellis, and in Keller.
As those cases make abundantly clear, the test is not essential or necessary.
The test is as Justice White asked in the question, is it germane?
Is it reasonably related to the function of the bargaining representative in collective bargaining?
Unknown Speaker: So, it... what is your answer to the, to the hypothetical questions that Mr. LaJeunesse asked?
Specifically, can the union charge to nonunion members the funds necessary to mount a campaign against certain candidates for the school board?
The people that--
Mr. Chanin: No.
Unknown Speaker: --that they will be negotiating with.
Surely, that's germane.
I want, I want a real softy on the school board, so I mount, you know, a campaign to get that person elected.
Is that germane?
Mr. Chanin: It's germane, but the answer is still no.
It's the only one of your hypotheticals that it's no to, by the way, Justice Scalia.
The Court... this Court and the legislators have always treated campaigns for elective office differently.
Since the earliest railway labor cases right up through Keller, this Court has carved out electoral politics as a nonchargeable item.
Unknown Speaker: All right, now what do you mean by electoral politics?
Mr. Chanin: I mean--
Unknown Speaker: My next question was going to be what about a nonpublic union.
It's just a... it's not a school.
Nonpublic union and according to Mr. LaJeunesse, what if... can they be compelled to contribute to a campaign in support of minimum wage laws or an increased in the amount of the minimum wage?
Mr. Chanin: --Are you talking in the public sector or the private sector?
Unknown Speaker: As I said, it's a private sector union, not a public sector union.
Mr. Chanin: I think the question in the private sector is a more difficult one.
I could not answer it unless I was familiar with the industry and the particular legislation.
Unknown Speaker: It's not electoral politics.
It's just a--
Mr. Chanin: Well, but the test is--
Unknown Speaker: --supporting a particular statute.
--the test is it germane.
The electoral politics is indeed germane.
It is germane.
There's no question that if a school board candidate says to us, vote for me, I'll give you a 10 percent increase.
It is germane.
It is not chargeable for other reasons.
Because this Court has always treated campaigns for office differently.
There are other State interests involved in campaigns--
--Is that the reason?
It's different because we've always treated it differently.
I mean, we must have had some reason for treating it differently.
Mr. Chanin: --There are reasons.
Unknown Speaker: Okay, well, what are they?
Mr. Chanin: The reason it's been treated differently is because when I vote for a candidate, I don't vote on a single issue.
That person will sit in an office and will vote on a variety of other issues which may have no bearing whatsoever on collective bargaining for my position as a union.
Unknown Speaker: Why is that different, Mr. Chanin, from say a proposition on a ballot or a millage, a millage vote?
Is that any less free expression voting for a candidate than voting for an electoral proposition?
Mr. Chanin: Your Honor, it is not a manner of less or more free expression.
The test is is it germane to collective bargaining.
Unknown Speaker: The test is it's germane.
I mean, that really does not give a lot of answers.
Mr. Chanin: The... in this case, Your Honor, we have not taken the position that we can simply go out and become involved in any type of activity that may somehow improve the economic posture of the employer.
What we are dealing with here are with specific activities that relate to the funding of public education and educational employees.
Unknown Speaker: Yeah, well, let's get to some of the precise questions we have here.
Mr. Chanin: Okay.
Unknown Speaker: How about the lobbying on the millage elections?
Mr. Chanin: Yes, Your Honor, let me tell you why.
In Abood, this Court referred to some of the unique characteristics of public sector bargaining, and it stated in Abood that the bargaining representative is the public employer who sit at the table are not free agents economically.
It pointed out that they cannot make commitments and carry them out.
What the Court said in Abood is whether or not you can get benefits and salaries in the public sector is dependent upon tax rates and governmental budgets and I think the Court's phrase was on budgetary decisions by others.
Now the Court was not saying that simply as a unique characteristic of public sector bargaining.
It was saying that that is a factor that determines whether we will do what we're supposed to do in bargaining, whether we will achieve for the people we represent salaries and economic improvements.
If in fact the people who sit at the table cannot make those decisions without budgets, without money, without millage, we must participate in those activities to effectively carry out our job.
Unknown Speaker: Well, yeah, but it's apparently stipulated that millage has no direct effect on what happens to the budget of the Ferris College.
Mr. Chanin: Well, that's true, Your Honor, but we do not attempt... if I... you have to interplay here our parent organization availability theory with what the local does.
We do not seek to sustain the millage elections here because they will have a direct impact on Ferris.
We sustain them because they are germane to collective bargaining of the unions involved in this case and they are part of--
Unknown Speaker: Well, they're germane to the parent union.
Mr. Chanin: --That's right.
That's right, Your Honor.
Unknown Speaker: Well, does the parent union do collective bargaining or does it just support local unions which do collective--
Mr. Chanin: It supports the local unions that do it.
Unknown Speaker: --So the Michigan Education Association doesn't itself do any collective bargaining?
Mr. Chanin: No, it does not.
Unknown Speaker: Well, I didn't realize that you're arguing that just as you sort of buy insurance for the expert negotiating skills needed and litigation skills, so also you buy assurance... insurance for millage elections--
Mr. Chanin: --No.
Unknown Speaker: --that since the... this millage doesn't relate to me, but it does relate to another union.
They pay for mine.
I pay for theirs.
It all comes out even.
Mr. Chanin: No.
Unknown Speaker: That is not the argument?
Mr. Chanin: No.
Let me try it again--
Unknown Speaker: All right.
Mr. Chanin: --if I may.
The argument is that like insurance, not exactly but like insurance, when I affiliate with these larger parent organizations I get something.
I know that in a year where I have very high bargaining costs, a year I negotiate a contract, a year I have major arbitrations, I can call on those parent organizations to help me.
In order to be there when I need them, those parent organizations must maintain themselves as an institution.
They must have a staff of lawyers, of negotiators, of research people, of whatever I need, they must have that staff and those resources available to provide to me.
Now taking Justice Stevens' point, in fact if I carry that through I should charge the people in Ferris, the objecting feepayers, the full amount of the affiliation fee, because that fee goes to maintain that institution.
But then we have the problem of a disproportionate charge.
So we have to come up with a pricing mechanism.
How do I discount the affiliation fee to reflect only the availability component?
There is no way to do that with absolute precision.
So I look at the budgets of the parent organization.
I say what should I take out?
I will certainly take out member-only benefits.
I will take out that portion of the parent organization budget that goes to political and ideological activity that has no relation to collective bargaining in the generic sense.
But as I try to construct a pool of resources, I say that what I will keep in are all of the resources that go from those parent organizations to do the kinds of things that would be germane to collective bargaining if done in any kind of a bargaining unit, if done in Ferris.
And they are.
The costs of negotiation, the costs of research, the costs of lobbying on funding public education and on terms and conditions of employment.
So we sustain those charges, not because I can take a particular activity of a State or national parent and say this activity had this direct benefit on Ferris college.
I keep it in because I say it is the type of activity that is in the resource pool that the local is paying for.
The only activities that I have to show under our theory have a direct impact on bargaining at Ferris are the expenditures of Ferris itself.
Unknown Speaker: Mr.... you're--
Mr. Chanin: Let me just take the millage if I may because you mentioned that, Your Honor.
In Abood, this Court stated that funding to... lobbying to fund agreements that were made to subsequently fund them is a chargeable expense and the petitioners concede that.
Millages in Michigan occur all through the year under law.
There is no principal reason we submit to allow the unions to charge for activities to improve funding that take place after bargaining to allow the public employer to fund contingently agreed-to economic items, as opposed to allowing the union to charge for activities that are designed to produce the funding before bargaining so that the public employer--
Unknown Speaker: --The millage... the millage doesn't produce any funding for Ferris.
Mr. Chanin: --It produces funding for public education generally.
Unknown Speaker: That's what you're arguing?
Mr. Chanin: Yes, I am.
In that sense, Your Honor, what I am saying is it is the type of activity that a parent organization legitimately can engage in in order to have the institution ready to assist--
Unknown Speaker: Because some--
--Because some say Ferris' turn will come.
They'll... they'll have a millage election.
Mr. Chanin: --Your Honor, just because the fact of the matter is, because I paid health insurance last year and did not have a major illness, I do not consider that premium to be wasted.
Unknown Speaker: So the further away--
Mr. Chanin: Unfortunately, my time will come.
Unknown Speaker: --Counsel, the further away the bargaining units gets from the employee, the less the First Amendment protection the employee has.
Mr. Chanin: No, no.
Unknown Speaker: It seems to me it should be the other way around.
Mr. Chanin: No, the First Amendment justifies our charging the parent organization expenditures because those... that expenditure, that affiliation fee is germane in the most direct sense.
It is a fee--
Unknown Speaker: Yes, but Mr. Chanin--
Mr. Chanin: --to provide something to help me when I need it in collective bargaining.
Unknown Speaker: --What you're really arguing is who has the burden of proof, because you're saying that everything is presumptively support function except those things you can identify as unrelated, and the stuff in the gray area just generally is supporting affiliation.
Mr. Chanin: Well--
Unknown Speaker: In the district court that was the... the burden was just the opposite.
Mr. Chanin: --No, the burden of proof is ours.
Unknown Speaker: Yeah, but you say you carry it when you've shown... when you've excluded A, B, and C, which are admittedly impermissible, everything else is presumptively necessary to show that the organization is available.
Mr. Chanin: No, we lost it in the district court, because we had an activity of the parent organization.
The district court did not say we did not sustain it because we did not show how it related to Ferris.
It said quite clearly we did not sustain it because we did not show how that activity related to collective bargaining in a generic sense.
Unknown Speaker: Thank you, Mr. Chanin.
Mr. LaJeunesse, do you have rebuttal?
Rebuttal of Raymond J. LaJeunesse, Jr.
Mr. LaJeunesse: Yes, I do, Your Honor.
One of the questions Mr. Chanin was asked was whether there is a contract which guarantees the services to the local affiliate.
He didn't answer that question.
The affiliation agreements, the contract... the constitutions of the Michigan Education Association and National Education Association are in the record.
They don't guarantee any services to this local, and in fact we know there aren't services to this local even where... a guarantee of services... even in the years where there is this crisis, this catastrophe that Mr. Chanin talks about.
Unknown Speaker: Well, certainly he suggested that it was by custom if not by law.
Would that make any difference if it were shown by custom they did all these things even though perhaps they could not have been compelled to in a court?
Mr. LaJeunesse: That doesn't make it analogous to insurance or a service contract, Your Honor.
There is no legally enforceable right to receive the services.
The only legally enforceable right that the local has is to participate in governance of the national and the State organization.
Unknown Speaker: So you object to charging any part of the affiliation fee to the nonmembers?
Mr. LaJeunesse: No, Your Honor, we do not.
As a matter of fact we stipulated that if the State and national organization provide services directly to the local--
Unknown Speaker: Well, you mean so it's--
Mr. LaJeunesse: --that a portion of the administrative--
Unknown Speaker: --so it's piece by piece.
You have to value each bit of service?
Mr. LaJeunesse: --That's correct, Your Honor.
I think that's the rule that this Court has laid down in the cases all the way through Hudson, saying that the union has to prove the chargeable cost.
Unknown Speaker: Do you, do you think the First Amendment draws that distinction between whether you have a contractual right to get that... you can pay out the money and charge the nonunion members if you have contractual right to get the assistance for it, but by reason of the First Amendment you can't pay it out if it's only very likely that de facto you're going to get the assistance.
That's a First Amendment line?
Mr. LaJeunesse: I'm saying, Your Honor, that the First Amendment requires a proven, compelling governmental interest to infringe on the nonmember's right not to associate with this union and in any way support any of its activities.
And the only compelling governmental interest that's been identified by this Court is reimbursing the union for its costs of performing its statutory functions as exclusive representative of the bargaining unit.
You talk about the hypothetical of a contract.
The question then becomes does this contract make rational sense?
Are there actual services that are being provided?
Is it a fraud and so on?
But that's not this case.
There is not contract in this case.
Unknown Speaker: But in this case isn't the actual thing we're fighting about is how much of this publication that they put out is useful to the local?
Isn't that what the big expense was?
Mr. LaJeunesse: That was the largest... one of the larger expenses.
There are others that are cited in the briefs, Your Honor.
Unknown Speaker: Was that... were the... all the expenses in... for lobbying that were charged to the nonmembers was all that lobbying done by the... by the parent or by the affiliated union, Michigan or national?
Mr. LaJeunesse: There was one payment by the local to send members--
Unknown Speaker: But most of it--
Mr. LaJeunesse: --to a conference held by the State.
Unknown Speaker: --But most of it was by the parent?
Mr. LaJeunesse: Most... all... except for that one payment, it was all at the State or national level.
And I want to point out that, in answer to Justice Scalia question, Ferris is never going to get its opportunity to get support from the State organization for a millage election, because Ferris never gets any money for millages under State law.
Chief Justice Rehnquist: Thank you, Mr. LaJeunesse.
The case is submitted.
Argument of Justice Blackmun
Mr. Blackmun: The second case is No. 89-1217, Lenhert against the Ferris Faculty.
This case comes to us from the Court of Appeals for the Sixth Circuit, and it concerns the propriety of the use of dues required of non-members by the respondent, Ferris Faculty Association, which serves as the exclusive bargaining representative of the faculty of Michigan's Ferris State College, a public institution.
The case did not easily lend itself to announcement from the Bench.
I think it suffices to say that certain non-member faculty objected to particular uses by the unions of their service fees and filed suit under federal statutes claiming violation of their rights under the First and Fourteenth Amendments.
The District Court held that certain of the expenditures were constitutionally chargeable to petitioners, and the Court of Appeals affirmed.
In an opinion filed with the Clerk today, we affirm that judgment in part and reverse it in part, and remand the case.
The details are complex and are revealed, we hope, by the opinion.
The Chief Justice and Justice White and Justice Stevens have joined the opinion in its entirety.
Justice Marshall has filed an opinion concurring in large part, but dissenting in part; Justice Scalia, joined by Justice O'Connor and Justice Souter, has filed an opinion concurring in the judgment in part and dissenting in part, and he is also joined in part by Justice Kennedy, and Justice Kennedy has filed an opinion concurring in the judgment in part and dissenting in part.
I think Mr. Chief Justice sorts the line up of the participants.