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Lehnert v. Ferris Faculty Association/Concurrence Marshall

< Lehnert v. Ferris Faculty Association

Justice MARSHALL, concurring in part and dissenting in part.

The parties in this case dispute the amount that public sector unions may charge as a "service fee" to employees who are not union members. Under an agency-shop provision like the one that covers petitioners, dissenting (i.e., nonunion) employees are generally obliged to share the union's cost of negotiating and administering their collective-bargaining agreement. The key question we confront is whether, consistently with the First Amendment, a union may charge dissenting employees for union activities that are conducted away from the bargaining table but that are also reasonably designed to influence the public employer's position at the bargaining table.

The principal opinion concedes that " '[t]o represent their members effectively, . . . public sector unions must necessarily concern themselves not only with negotiations at the bargaining table but also with advancing their members' interests in legislative and other "political" arenas.' " Ante, at 520, quoting 881 F.2d 1388, 1392 (CA6 1989). One would expect endorsement of this proposition to lead the principal opinion, as it led both the Court of Appeals and the District Court below, to include within the petitioners' service fee the costs of (1) lobbying legislators (and, where relevant, voters) to increase funding of the public sector in which petitioners work, namely, education, and (2) a public relations campaign to improve the voters' and the public employer's view of petitioners and their fellow teachers. After all, the extent to which public employees may secure favorable terms in a collective-bargaining agreement depends on the availability of funds in the relevant public sector. Similarly, the more favorable the public attitude toward a bargaining unit's members, the more likely that the public employer will accept a given bargaining proposal.

The principal opinion rejects these reasonable implications of the proposition whose truth it concedes, and thus the Court today holds that the respondent teachers' unions-the National Education Association (NEA); its state affiliate, the Michigan Education Association (MEA); and a local affiliate, the Ferris Faculty Association (FFA) at Ferris State College-may not assess FFA's dissenting members for the lobbying and public relations expenses I have just described. I respectfully dissent from these two aspects of today's decision.

I also disagree with the Court's decision that the costs of articles printed in MEA's employee journal about union litigation outside petitioners' bargaining unit are not chargeable. The principal opinion requires the MEA to isolate the expense of each such article and to charge it solely to the bargaining unit involved in the particular suit. Neither precedent nor common sense supports this burdensome accounting procedure-particularly since the publication costs at issue are de minimis.

In Parts I, II, and III, respectively, I explain in more detail my disagreement with the Court's disposition of these three disputed charges and in particular with the analysis of these charges in the principal opinion. I otherwise join in Parts I, II, III-B, and C, and IV-B (except the final paragraph), D, E, and F of the principal opinion.

* I consider first the costs of lobbying. The principal opinion concludes that the service fee charged to petitioners may not constitutionally include the lobbying expenses incurred by respondents, because these expenses (1) are not germane to a union's collective-bargaining responsibilities, (2) do not serve either of the government interests that justify an agency shop, and (3) effect an infringement of petitioners' First Amendment associational and speech freedoms beyond that which is inherent in the agency shop. I believe that the principal opinion errs in each of these conclusions, which I discuss in turn below.

* The principal opinion errs most, in my judgment, in creating a very narrow rule for testing the constitutional acceptability of charges for lobbying activities. It is common ground that such activities are not chargeable unless they are " 'germane' to collective-bargaining activity," ante, at 519; however, although Justice BLACKMUN's opinion for the Court applies this standard to several of the charges before us in the flexible manner that our precedents require, see ante, at 527, 529-532, Parts IV-B (first paragraph), D, E, and F, elsewhere Justice BLACKMUN's opinion fashions and applies to lobbying expenses a new and unjustifiably restrictive germaneness standard.

The only true lobbying expense that the District Court upheld as chargeable in this case was $150 incurred by the FFA (out of annual expenditures of more than $18,000) in support of a Preserve Public Education (PPE) Conference. The District Court found that "the PPE program was directed at securing funding for public education in Michigan," and concluded that, "[i]n a public sector bargaining unit where funding for employment positions, salaries and benefits is conditioned upon legislative appropriations, such lobbying is directly related to the statutory duties of the exclusive representative." 643 F.Supp. 1306, 1326 (WD Mich.1986). The Court of Appeals endorsed this reasoning. See 881 F.2d, at 1392. The principal opinion however, comes to a different conclusion, offering the following new standard for the chargeability of union activities:

"Where . . . the challenged lobbying activities relate not to the ratification or implementation of a dissenter's collective-bargaining agreement, but to financial support of the employee's profession or of public employees generally, the connection to the union's function as bargaining representative is too attenuated to justify compelled support by objecting employees." Ante, at 520.

The key phrase in this new standard is the requirement that a chargeable activity relate to "ratification or implementation" of a collective-bargaining agreement. That language departs dramatically from our prior decisions, which uniformly refer to negotiation and administration as the touchstones for determining chargeability. See, e.g., Ellis v. Railway Clerks, 466 U.S. 435, 448, 104 S.Ct. 1883, 1892, 80 L.Ed.2d 428 (1984); Abood v. Detroit Board of Education, 431 U.S. 209, 221, 97 S.Ct. 1782, 1792, 52 L.Ed.2d 261 (1977); Machinists v. Street, 367 U.S. 740, 760, 768, 81 S.Ct. 1784, 1795, 1799, 6 L.Ed.2d 1141 (1961). In Abood, we not only defined the scope of chargeable activities with reference to negotiation of collective bargaining agreements but also explained why the negotiating process was particularly broad in the public sector:

"The process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process." Abood, 431 U.S., at 236, 97 S.Ct., at 1800 (emphasis added).

See also id., at 228, 97 S.Ct., at 1796 ("negotiating a final agreement . . . may be severely limited by statutory restrictions, by the need for the approval of a higher executive authority or a legislative body, or by the commitment of budgetary decisions of critical importance to others") (emphasis added).

Thus, we recognized in Abood that several different agents, including administrators and elected legislators, comprise the "employer" with whom public sector unions negotiate. Ibid. This significant difference between the relatively unified, authoritative management voice in the private sector and a public sector management voice that is fragmented and only partially authoritative induces responsible unions to "see[k] out a higher level of authority with the purpose of influencing the outcome of negotiations." J. Begin & E. Beal, The Practice of Collective Bargaining 441 (7th ed. 1985). Cf. Abood, supra, at 229-230, 97 S.Ct., at 1796-1797 (" 'The uniqueness of public employment . . . is in the special character of the employer' "), quoting Summers, Public Sector Bargaining: Problems of Governmental Decisionmaking, 44 U.Cin.L.Rev. 669, 670 (1975). Respondents' PPE program aimed at just such "a higher level of authority" in the hope of "influencing the outcome of negotiations."

The principal opinion overlooks the crucial language in Abood, our major precedent concerning public sector union security, and therefore finds nonchargeable union lobbying that is directed toward the very "budgetary and appropriations decisions" that Abood found to be a plausible component of the negotiating process. Such lobbying is nonchargeable, the opinion declares, because it lies "outside the limited context of contract ratification or implementation." Ante, at 522 (emphasis added). The difference between "ratification" and "negotiation" appears to be solely temporal. Presumably, in other words, the opinion would permit lobbying for an education appropriations bill that is necessary to fund an existing collective-bargaining agreement, but it would not permit lobbying for the same level of funding in advance of the agreement, even though securing such funding often might be necessary to persuade the relevant administrators to enter into the agreement. I see no justification for this distinction.

The principal opinion defends its substitution of "ratification" for "negotiation" in our germaneness standard by arguing that inclusion of PPE costs within dissenting employees' service fees would not serve either of the governmental interests underlying the agency shop, namely (1) preventing "free riding" and (2) ensuring labor peace. Neither argument persuades.

Preventing Free Riding: As we have previously explained in upholding union or agency shop legislation, such arrangements "counterac[t] 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." Abood v. Detroit Board of Education, supra, at 222, 97 S.Ct., at 1792. Justice BLACKMUN's opinion rejects the possibility that dissenting teachers who are exempted from sharing lobbying costs might benefit unfairly from an expanded education budget. "[T]he so-called 'free-rider' concern," we are told, "is inapplicable where lobbying extends beyond the effectuation of a collective-bargaining agreement," because "[t]he balancing of monetary and other policy choices performed by legislatures is not limited to the workplace but typically has ramifications that extend into diverse aspects of an employee's life." Ante, at 521.

The argument here seems to be that, when a legislature increases funding for education, it often makes a compensating reduction-which a dissenting employee may oppose-in some other area of the budget. The principal opinion may be arguing that the dissenting employee has not incurred a net benefit from, and therefore cannot be termed a "free rider" on, the union's lobbying campaign. This argument proves too much, however, since it could just as readily be applied to the ratification of a public sector labor contract. If a union secures a significant pay increase in a new collective-bargaining agreement, the legislature that ratifies that agreement may well feel constrained to make some offsetting reduction in funding for other programs. Here, again, the employees who benefit from the new agreement may nevertheless disagree with the trade-off the legislature has chosen. The fact that state budgets often operate within such a zero-sum framework does not excuse members of a bargaining unit from sharing the union's cost of obtaining benefits for them. I conclude that the traditional concern for preventing "free riding" is no less applicable here than in our prior cases. If the PPE lobbying program succeeds in generating higher funding for professors and teachers in the public sector, petitioners will surely benefit along with the other members of their bargaining unit and ought to help bear the costs.

Promoting Labor Peace: The principal opinion fares no better in its suggestion that charging dissenting employees for the PPE program fails to advance the other governmental interest that underlies the agency shop, namely, promotion of labor peace. We have previously recognized that Michigan's agency-shop provision serves to prevent "confusion and conflict that could arise if rival teachers' unions . . . each sought to obtain the employer's agreement." Abood, 431 U.S., at 224, 97 S.Ct., at 1794. A corollary of this principle of unitary representation, of course, is that the sole representative must be able to speak for all of the employees whom it represents. Thus, when a union decides that the bargaining units it represents are best served by a campaign to increase educational funding, it is entitled to pursue that goal with resources commensurate with its status as sole representative.

The principal opinion argues that "[l]abor peace is not especially served by allowing . . . charges [for union lobbying]," ante, at 521, because dissenting employees are free to lobby legislatures on their own in support of conflicting goals. This argument confuses labor peace with employee unanimity. There will always be bargaining unit members, in both the public and private sectors, who disagree with union leaders and who say so publicly. Such action has never been deemed inconsistent with labor peace. The interest in labor peace requires only that, when a union deals with management in its official capacity as collective-bargaining representative, it be allowed to speak with one voice and with the appropriate strength that reflects financial support of all unit members. I conclude that this interest is advanced by the inclusion of PPE costs in the fees charged to petitioners.

The principal opinion offers a final argument to show that charging dissenters for PPE costs violates the First Amendment. As the opinion observes, even if a given cost is found to be "germane" to a union's collective-bargaining duties and to further the two governmental interests that inform the scope of germaneness, the cost may still be nonchargeable if it involves "additional infringement of First Amendment rights beyond that already accepted [in the union shop arrangement], and . . . that is not justified by the governmental interests behind the union shop itself." Ellis, 466 U.S., at 456, 104 S.Ct., at 1896.

Unfortunately, the opinion never examines whether the PPE program causes this "additional infringement of First Amendment rights" or whether such infringement may be "justified." Instead, it simply states in conclusory terms that all lobbying costs must be excluded since lobbying occurs "in a public context" ante, at 522, and "is likely to concern topics about which individuals hold strong personal views," ante, at 521. This analysis is scarcely faithful to the particularized inquiry the Court commended in Ellis. In that case, we examined whether the costs of union social activities, publications, and conventions did impose such "additional infringement" and concluded that they did not. I believe the same answer is compelled with respect to the PPE costs at issue here. As noted, the purpose of the PPE program was to increase funding for public education. Obviously, there is considerable overlap between that goal and the union's objectives in a collective-bargaining session, which typically include increased funding for teachers' salaries, benefits, and perhaps work environments. To be sure, those who advocate greater spending on all educational programs make a broader statement than those who merely propose higher wages and benefits for educational personnel. In that sense, the PPE program might be said to effect an "additional interference with the First Amendment interests of objecting employees," Ellis, 466 U.S., at 456, 104 S.Ct., at 1896, beyond what "we have already countenanced" by "allowing the union shop at all," id., at 455, 104 S.Ct., at 1896. However, this additional interference corresponds to a crucial feature of the public sector's decisional process: legislatures often make budgetary choices at the broad level of functional categories (such as education), rather than at the level of specific items within those categories (such as salaries and benefits). As I have already noted, moreover, those budgetary decisions may be crucial to the union's ability to secure a particular collective-bargaining agreement. I conclude, therefore, that whatever additional burden on First Amendment rights may arise from inclusion of PPE costs within service fees is "justified by the governmental interests behind the union shop itself." Id., at 456, 104 S.Ct., at 1896.

In reaching a contrary conclusion, the principal opinion relies principally on Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), in which we struck down a state criminal law forbidding drivers to obscure the state motto, "Live Free or Die," on their license plates. We found that this law violated the First Amendment by improperly forcing a citizen to become "an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Id., at 715, 97 S.Ct., at 1435.

The opinion's attempted analogy between the coercion at issue in Wooley and the requirement that petitioners bear their fair share of the PPE costs is wholly unpersuasive. The requirement that a dissenting member contribute to the PPE message is not likely to violate a dissenter's "right to refrain from speaking." Wooley, supra, at 714, 97 S.Ct., at 1435. In Wooley, it was not sufficient that the complaining party disagreed with the government's message. What was dispositive was the fact that the government was forcing the citizens themselves to be "courier[s]" of the message with which they disagreed, see id., at 717, 97 S.Ct., at 1436, thereby conscripting their expressive capacities in service of the government's message.

Petitioners' expressive capacities have not been conscripted. Rather, petitioners have simply been required to pay a pro rata share of lobbying costs incurred by a union representative, chosen pursuant to majority vote, who deemed the costs worthwhile in pursuing collective-bargaining goals. Indeed, I find a much closer analogy to the present case in our decisions rejecting claims by taxpayers who disagree with Government spending policies. We have held in that context that First Amendment rights do not entitle dissenting citizens to withhold their share of payments for activities that Congress has approved. See, e.g., United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Amish must pay social security taxes, even though doing so violates their religious beliefs). For much the same reason, I see no First Amendment violation in requiring petitioners to support decisions made on their behalf by duly elected representatives and in pursuit of the limited powers delegated to those representatives.

A final disputed charge that petitioners place under the heading of "lobbying" is not really a lobbying cost at all. Petitioners object to contributing to that portion of MEA's employee publication (the Teacher's Voice) that informed employees like petitioners-about lobbying activities that MEA and NEA had undertaken. The principal opinion does not discuss these reporting charges separately since it finds that no expenses relating to lobbying are chargeable. Since I find otherwise, I simply note that, like the PPE program itself, the cost of articles reporting on that program (and on other similar efforts to increase funding or influence benefits for teachers) should be chargeable. What this Court said of the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq., in Ellis would seem to apply equally to the Michigan labor statute at issue here: "the Act surely allows [the union] to charge objecting employees for reporting to them about those activities it can charge them for doing." Ellis, supra, 466 U.S., at 451, 104 S.Ct., at 1894. The District Court appears to have approved only the charges for reports on lobbying that was "germane to the union's duties as bargaining representative," see 643 F.Supp., at 1324, 1328, which principally involved educational funding. See App. 204-217. These charges therefore should be upheld.

The second category of expenditures that I believe the Court incorrectly excludes from service fees is the costs of the local union's public relations campaign. It appears that FFA launched this campaign (for the modest sum of $833 out of its annual expenditures of about $18,000, see 643 F.Supp., at 1313, 1336) during its contract negotiations. As the District Court found, these expenses were "incurred for the purpose of informing the public of the issues involved in an attempt to bring public pressure to bear on the employer." Id., at 1313. Because this type of public relations campaign is really a specialized form of lobbying, the chargeability of its costs should be evaluated under much the same analysis as that set forth in the preceding section. I conclude that a public campaign "designed to enhance the reputation of the teaching profession," 881 F.2d, at 1394, serves to influence officials who control the terms of public-sector labor contracts in the same way as does lobbying for greater educational funding. Under the preceding analysis, therefore, I find that these costs are chargeable.

In excluding these costs from service fees, the principal opinion argues that charging dissenters for the public relations campaign violated the First Amendment because it involved "speech of a political nature in a public forum." Ante, at 528. But, as with its analysis of the PPE program, the opinion never examines whether the content of this speech actually "involve[s] additional interference with the First Amendment interests of objecting employees," Ellis, 466 U.S., at 456, 104 S.Ct., at 1896, beyond that already imposed by the agency shop. Indeed, the opinion appears preoccupied with form to the exclusion of content, giving great weight to the fact that the public relations campaign included " 'informational picketing, media exposure, signs, posters and buttons.' " Ante, at 529, quoting 643 F.Supp., at 1313.

Under a proper First Amendment analysis based on content, however, it is clear that a public relations campaign "in support of the teaching profession generally," ante, at 528, does not impose burdens upon dissenting employees that are significantly greater than those already created by the agency shop. After all, union negotiators must argue-either implicitly or explicitly-during a collective-bargaining session that the teachers they represent (including petitioners) are valuable public servants who deserve higher compensation or benefits. The agency shop requires dissenting employees to support this latter message. I see no difference, for First Amendment purposes, in requiring dissenting employees to support a public version of that message aimed at other parts of the public-sector "employer," such as legislators and voters. Nor is the compelled funding of a message that praises one's own profession likely to occasion the strong personal reaction that the enforced support for more topical statements might provoke. As the principal opinion itself observes, "the extent of one's disagreement with the subject of compulsory speech is relevant to the degree of impingement upon free expression that compulsion will effect." Ante, at 522.

Finally, I disagree in one significant respect with the analysis in the principal opinion of union activities occurring outside petitioners' bargaining unit. The opinion correctly holds that most expenses for these extra-unit activities may be included within the service fees because dissenting employees must bear "their share of general collective-bargaining costs of the state or national parent union." Ante, at 527. But the opinion finds that dissenting employees may not be charged for "litigation that does not concern the dissenting employees' bargaining unit or, by extension, . . . union literature reporting on such activities." Ante, at 528. The opinion's discussion of extra-unit litigation costs is no more than dicta since, as far as appears from the record before us, no such costs are at issue in this case. The District Court did not advert to litigation costs when it enumerated the elements of the approved service fee, see 643 F.Supp., at 1326-1329, #fn-s [1] the Court of Appeals omitted any mention of such costs in its review of the trial judge's ruling, and neither party discusses such costs in its submissions to this Court.

The costs for reporting on extra-unit litigation are at issue in this case, and I disagree with the Court's unreasonable conclusion that these are not chargeable. The disputed expenses arise from the publication of, at most, 10 articles during the 1981-1982 year in MEA's statewide journal, the Teacher's Voice, see App. 229-230, that described lawsuits in which MEA was involved. The Court of Appeals did not specifically address the chargeability of any litigation reports, and it declined to determine whether "the district court may have erred in permitting plaintiffs to be charged for a few particular articles," on the ground that these were "allegations of essentially de minimis error." 881 F.2d, at 1393, n. 1.

This characterization of MEA's publication costs is especially apt when applied to the reports on extra-unit litigation. Of the $29.50 that the District Court approved as the total dissenter charge for each petitioner in 1981-1982, see 643 F.Supp., at 1334, roughly $3.00 reflected the expenses of the Teacher's Voice, see id., at 1328-1329. Since slightly more than 1% of that publication's column inches during 1981-1982 were devoted to litigation news, see id., at 1336, we may reasonably assume that roughly four cents of each petitioner's service fee was used to report on extra-unit litigation. Surely, this amount is de minimis. The District Court was thus correct in concluding that, "from a cost-benefit standpoint, a decree requiring a unit-by-unit breakdown of chargeable litigation expenses" would "create an unreasonable and unmanageable administrative burden on the . . . union defendants." Id., at 1325. Nevertheless, Justice BLACKMUN's opinion finds that the union must isolate the costs of articles describing extra-unit litigation and exclude them from dissenter charges. Undoubtedly, the added cost to each bargaining unit member (including dissenters) of such an elaborate accounting will exceed the few pennies by which dissenter charges may be reduced. I find, as did the District Court, that this result "is not warranted by the Constitution or by logic under the facts of [this] case." Id., at 1325-1326.

In determining which activities may be covered by dissenter charges, we have long recognized that " '[t]he furtherance of [employees'] common cause leaves some leeway for the leadership of the group," Abood, 431 U.S., at 222-223, 97 S.Ct., at 1792-1793, quoting Street, 367 U.S., at 778, 81 S.Ct., at 1805 (Douglas, J., concurring), and that "[a]bsolute precision in the calculation of [the] proportion [of union dues chargeable to dissenters] is not, of course, to be expected or required; we are mindful of the difficult accounting problems that may arise," Railway Clerks v. Allen, 373 U.S. 113, 122, 83 S.Ct. 1158, 1163, 10 L.Ed.2d 235 (1963). The four-cent charge that each petitioner challenges here falls well within the margin of grace that we have previously approved.

The principal opinion ignores the fact that the costs involved in the litigation reports are minimal and forges ahead to conduct a constitutional analysis. It does so, presumably, because it believes that petitioners would be willing to absorb the greater charges likely to result from a scrupulous accounting of article costs in order to avoid payment of even a few pennies for articles with which they disagree. The opinion reasons that, because litigation is "more akin to lobbying" due to its "political and expressive nature," costs of extra-unit litigation, i.e., litigation initiated on behalf of other bargaining units, are not chargeable. Ante, at 1963. If the opinion means to state a per se rule, then this statement is surely incorrect and indeed is belied by the record in this case. The litigation about which the Teacher's Voice reported included two lawsuits involving retirement benefits, one damages claim by an individual teacher, one suit contesting "teacher control of the education process of the classroom," and two suits to avert shutdowns of schools in need of additional funding. See App. 229-230 (internal quotation marks omitted). It is doubtful that this litigation has a "political and expressive nature" as that concept has evolved in the relevant cases. See, e.g., NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Rather, this litigation appears to be germane to the collective-bargaining and particularly the grievance duties of the union, and it seems that the District Court so held, see 643 F.Supp., at 1328 (assessing "chargeable content" of articles in Teacher's Voice); id., at 1325 (finding that litigation should be treated the same as any other cost under germaneness test).

Perhaps the principal opinion means to say only that respondents failed to carry the burden of proving that articles in the Teacher's Voice covered lawsuits that were germane to representational duties. The opinion hints that its holding is something less extreme than a per se rule when it explains in these words why respondents' litigation reports are nonchargeable: "When unrelated to an objecting employee's unit, such activities are not germane to the union's duties as exclusive bargaining representative." Ante, at 1964 (emphasis added). As I read this statement, the opinion would permit a union representative to show that a lawsuit filed by its statewide union parent is related to an objecting employee's unit even though the suit does not arise out of facts occurring in that unit. Moreover, where the disputed cost is only that of articles written about such litigation, the union might well show that this reporting was germane to its duties to represent an "objecting employee's unit," ibid., even if the underlying lawsuits were not. The information in such articles may be useful to extra-unit employees since they may confront legal issues similar to those faced in sibling units and may therefore contemplate bringing similar suits.

As noted, the principal opinion determines that none of respondents' costs for reporting on litigation is chargeable. If that judgment rests not on a per se rule excluding reports on extra-unit litigation but rather on a conclusion that respondents failed to prove that the extra-unit litigation reported on in this case was related to petitioners' unit, then the opinion has engaged in de novo factfinding without explaining its basis for overruling the District Court's findings. The Court of Appeals did not evaluate the chargeability of any litigation articles in the Teacher's Voice-presumably because of its finding that the costs involved in any particular article were de minimis. Since the opinion implicitly rejects the Court of Appeals' reliance on the de minimis rationale, and since this is the first time the District Court's findings on this issue have been subjected to appellate review, the proper course is to remand to the Court of Appeals for a determination of whether the District Court erred in finding that all of the litigation articles were chargeable. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); see also United States v. Hasting, 461 U.S. 499, 515-518, 103 S.Ct. 1974, 1983-1985, 76 L.Ed.2d 96 (1983) (STEVENS, J., concurring in judgment) (Court should not undertake record-review "function that can better be performed by other judges").

The principal opinion also appears to rely on Ellis v. Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984), for its conclusion that dissenters may not be compelled to bear the costs of articles on extra-unit litigation. Ellis arose in very different circumstances and, in my view, is not controlling here. In Ellis, the Court held that the union shop provisions of the RLA did not authorize inclusion of extra-unit litigation costs within dissenter charges and that, "[g]iven [this] holding," dissenters also "cannot be charged for the expense of reporting those activities." 466 U.S., at 451, n. 11, 104 S.Ct., at 1894, n. 11. The decision in Ellis, however, was based on "the scope of the statutory authorization," id., at 444, 104 S.Ct., at 1890, taking into account "that Congress' essential justification for authorizing the union shop was the desire to eliminate free riders," id., at 447, 104 S.Ct., at 1892. Thus, exclusion of these costs appears to have been based solely on the RLA. As the principal opinion correctly notes, the statutory construction in Ellis was "informed by the First Amendment." Ante, at 528. But nothing in the Court's discussion of extra-unit litigation, much less of the reporting on such litigation, suggests a constitutional rather than statutory basis for excluding these particular costs from dissenter charges. Accordingly, Ellis does not resolve the question now before us: whether a state government's agency shop agreement-construed under state law as authorizing charges to dissenting employees for the costs of articles on extra-unit litigation-violates the First Amendment. I am inclined to think that it does not, so long as the suits described in the articles would be a chargeable expense within the bargaining unit on whose behalf the suit was brought, but I would leave that to be resolved in the first instance by the Court of Appeals were we to remand this case.

Even if Ellis' exclusion of reporting expenses was based on the First Amendment rather than the RLA, that ruling would not control the present case. The Ellis Court did not have before it evidence-much less a lower court finding-that the disputed reporting charges were de minimis. I very much doubt that the Ellis Court would have imposed the burdensome accounting procedure that it did-and that the principal opinion requires here had the amount in dispute been a mere four cents. See Ellis, 466 U.S., at 449-450, 104 S.Ct., at 1892-1893 (upholding chargeability of union's expenses for social activities, which amounted to only 0.7% of expenditures and were "de minimis "); id., at 456, 104 S.Ct., at 1896 (permitting "the union . . . a certain flexibility in its use of compelled funds").

The charges at issue in this case are, under any reasonable conception, "germane" to the duties of respondent unions and therefore advance the important governmental interests in deterring free riders and promoting labor peace. On the other hand, the First Amendment interests of dissenting members of the bargaining unit, like those of dissenting taxpayers, are insufficiently strong to outweigh the governmental interests. For these reasons, I respectfully dissent from the Court's conclusion that the three types of charges discussed above may not be included in the service fees.


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