Amicus Curiae Brief — Teachers v. Hudson

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JOSEPH F. SPANIOL, JR,

NO. 84-1503 CLERK

===

In The

Supreme Court of the United States

October Term, 1985

)

CHICAGO TEACHERS UNION, LOCAL NO. 1, AFT,

AFL-CIO; ROBERT M. HEALEY; JACQUELINE B.

VAUGHN; ROCHELLE D. HART; THOMAS H.

REECE; and GLENDIS HAMBRICK, individually

and as Officers of the Chicago Teachers Union,

Petitioners,

Vv.

ANNIE LEE HUDSON; K. CELESTE CAMPBELL;

YSTHERLENE HOLMES; EDNA ROSE McCOY;

DR. DEBRA ANN PETITAN; WALTER A.

SHERRILL; and BEVERLY F. UNDERWOOD,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

ray

BRIEF AMICUS CURIAE OF WILLIAM CUMERO

IN SUPPORT OF RESPONDENTS,

ANNIE LEE HUDSON, ET AL.

ty)

RonaLp A. ZUMBRUN

Joun H. FInpiey

Antuony T. Caso

CouNSEL or REcorD

Pacific Legal Foundation

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 444-0154

Attorneys for Amicus Curiae

William J. Cumero

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

Table Of Authorities Cited

Interest of Amicus

Opinion Below

Statement of the Case

Summary of Argument

Argument .

TABLE OF CONTENTS

I. The Court of Appeals Correctly Identified a Due

Process Liberty Interest for the Protection of

Associational Freedoms

Compelled Agency Shop Fees Implicate an

Employee’s Freedom to Associate for the Ad-

vancement of Ideas

The Court of Appeals’ Decision, Far from

Creating an Unprecedented New Liberty In-

terest, Merely Provides Procedural Protec-

tion for the Fundamental Right of Association

Il. A Due Process Liberty Interest Transcends the

‘¢Political’’ or ‘‘Ideological’’ Inquiry, Thus Pro-

viding Better Protection of the First Amendment

and Continuing Adherence to the “Free Rider’’

Rationale

Conclusion

The Appellate Court Decision Better Effectu-

ates an Employee’s First Amendment. I'ree-

doms

The Reasoning of the Court of Appeals Pro-

motes the Purpose of the Agency Shop by

Preventing Nonmembers from Receiving Rep-

resentation Without Payment of the Fees .........

TABLE OF AUTHORITIES CITED

Cases

Page

Abood v. Detroit Board of Education, 431 U.S. 209

(1977) 2, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15

Adler v. Board of Education, 342 U.S. 485 (1952) ccc 5

Bates v. City of Little Rock, 361 U.S. 516 (1960) nce 4

Buckley v. Valeo, 424 U.S. 1 (1976)

DeJonge v. Oregon, 299 U.S. 353 (1937)

Ellis v. Brotherhood of Railway, Airline and Steam-

ship Clerks, — U.S. —, 104 S. Ct. 1883 (1984).....2, 6, 7, 11,

12, 13, 14, 15

Hicks v. Miranda, 422 U.S. 332 (1975) 9

Illinois State Board of Elections v. Socialist Workers

Party, 440 U.S. 173 (1979) i)

International Association of Machinists v. Street,

367 U.S. 740 (1961) 7, 9, 10, 11, 14, 15

Jibson v. White Cloud Education Association,

— US. —, 105 S. Ct. 236 (1984) 9

Kempner v. Dearborn, Local 2077, — U.S. —, 105

S. Ct. 316 (1984) 9

Law Students Civil Rights Researci. Council, Inc.

v. Wadmond, 401 U.S. 154 (1971) 5

Mandel v. Bradley, 482 U.S. 173 (1977) 9

National Association for the Advancement of

Colored People v. Alabama, 357 U.S. 449 (1958).....4, 8, 12

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959) cece 9

Palko v. Connecticut, 302 U.S. 319 (1937) 4

ili

TABLE OF AUTHORITIES CITED—Continued

Page

Roberts v. United States Jaycees, — U.S. —,

104 8. Ct. 3244 (1984) 6

Seay v. McDonnell Douglas Corporation, 371 F. Supp.

754 (C.D. Cal. 1973), rev’d on other grounds,

533 F.2d 1126 (9th Cir. 1976) 10

RuLEs

Supreme Court Rule 36 1

Unirep States Constitution

First Amendment 3, 4, 5, 7, 8, 11, 14, 15

MISCELLANEOUS

A. Cox, D. Bok, R. Gorman, Labor Law 1184 (1977) ..... 10

D. B. Gaebler, Union Political Activity or Collective

Bargaining? First Amendment Limitations on

the Uses of Union Shop Funds, 14 U. Cal. D. L.

Rev. 591 (1981) . 10

NO. 84-1503

4s.

In The

Supreme Court of the United States

October Term, 1985

CHICAGO TEACHERS UNION, LOCAL NO. 1, AFT,

AFL-CIO; ROBERT M. HEALEY; JACQUELINE B.

VAUGHN; ROCHELLE D. HART; THOMAS H.

REECE; and GLENDIS HAMBRICK, individually

and as Officers of the Chicago Teachers Union,

Petitioners,

ANNIE LEE HUDSON; K. CELESTE CAMPBELL;

ESTHERLENE HOLMES: EDNA ROSE McCOY;

DR. DEBRA ANN PETITAN: WALTER A.

SHERRILL; and BEVERLY F. UNDERWOOD,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

ray

BRIEF AMICUS CURIAE OF WILLIAM CUMERO

IN SUPPORT OF RESPONDENTS,

ANNIE LEE HUDSON, ET AL.

INTEREST OF AMICUS

This brief amicus curiae is submitted on behalf of

William Cumero pursuant to Supreme Court Rule 36.

Consent to the filing of this brief has been granted by

counsel for the parties and has been lodged with the clerk

of this Court.

William Cumero is a public school teacher in Califor-

nia who is currently litigating before the California Su-

preme Court, challenging the use of compelled agency shop

fees for political and ideological purposes. His litigation

is based upon this Court’s decisions in Abood v. Detrott

Board of Education, 431 U.S. 209 (1977), and Ellis v. Bro-

therhood of Railway, Airline and Steamship Clerks,

— U.S. —, 104 S. Ct. 1883 (1984), which involve substantive

protections directly implicated by the Seventh Circuit's

opinion. As such, Mr. Cumero has a strong interest in the

outcome of this litigation. Due to his posture as a litigant

in a related case, he also brings experience and a knowl-

edge of the issues enabling him to address the importance

of this case and its potential impact on agency fee de-

cisional law.

ray

OPINION BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 743 F.2d 1187 (1984).

STATEMENT OF THE CASE

Amicus adopts respondents’ statement of the case.

°o

SUMMARY OF ARGUMENT

This Court has recognized that compelled agency shop

fees implicate the First Amendment freedoms of speech

and association. The impact of the agency shop on these

liberty interests, however, has been constitutionally justi-

fied by the governmental interest in labor peace and sta-

bility. But this strong governmental interest is meant only

to prevent ‘‘free riders” from receiving the benefits of

negotiation and administration of collective bargaining

agreements without sharing in their costs. Compelled

agency fees to support expenses unrelated to these teach-

ers’ association activities is an unconstitutional infringe-

ment on the First Amendment.

The opinion of the Court of Appeals recognizes all of

these tenets and, far from creating a new liberty interest,

merely relies on a due process rationale to protect an in-

dividual’s First Amendment rights from a fee deduction

for activities unrelated to collective bargaining. It pro-

vides procedural protection for the substantive rights al-

ready delineated by this Court.

Moreover, the Court of Appeals’ opinion is a step to-

ward greater clarity in the agency shop law developed by

this Court. By formulating a due process analysis based

upon bargaining agent expenses related to collective bar-

gaining contrasted to unrelated expenses, the Seventh Cir-

cuit has avoided the definitional problems of the ‘‘poli-

tical” and ‘‘ideological” inquiry. This provides more

protection for First Amendment freedoms and concomitant

adherence to the ‘‘free rider” rationale upon which the

agency shop is based.

ARGUMENT

THE COURT OF APPEALS CORRECTLY IDENTIFIED

A DUE PROCESS LIBERTY INTEREST FOR THE

PROTECTION OF ASSOCIATIONAL FREEDOMS

This Court has long recognized the fundamental liber-

ties of speech and assembly reposed in the individual by

the First Amendment. De Jonge v. Oregon, 299 U.S. 353,

364 (1937): Palko v. Connecticut, 302 U.S. 319, 324 (1937).

Moreover, the close nexus between these two basic free-

doms, derived from the important role an informed citizen-

ry plays in our democratic system, led this Court to con-

clude that the ability to associate for the advancing of ideas

and the airing of grievances was a fundamental liberty,

inseparably tied to the First Amendment. National Asso-

ciation for the Advancement of Colored People v. Alabama

(NAACP), 357 U.S. 449, 460 (1958) ; Bates v. City of Little

Rock, 361 U.S. 516, 523 (1960). As such, this right of

association is deserving of due process protection. .\s

Justice Harlan stated in NAACP: ‘‘It is beyond debate

that freedom to engage in association for the advancement

of beliefs and ideas is an inseparable aspect of ‘liberty’ as-

sured-by the Due Process Clause of the Fourteenth Amend-

ment... .” 357 U.S. at 460.

The opinion of the court below is in complete harmony

with these basic tenets. In recognizing the associational

freedom implicated by compelled agency fees and in rely-

ing on a due process rationale to protect this interest, the

decision does not create a new founded right; it steadfastly

protects the liberty recognized by this Court to be at the

core of democratic government.

A. Compelled Agency Shop Fees Implicate an Em-

ployee’s Freedom to Associate for the Advance-

ment of Ideas

The liberty interest in association is an expansive

right and thus capable of taking many forms: it is directly

involved in political associations (Adler v. Board of Educa-

tion, 342 U.S. 485 (1952)), restrictions on entry into the

bar (Law Students Civil Rights Research Council, Inc. v.

Wadmond, 401 U.S. 154 (1971)), and campaign financing

(Buckley v. Valeo, 424 U.S. 1 (1976)), to name a few of the

many opinions addressing its numerons manifestations.

The Court in Abood v. Detroit Board of Education,

431 U.S. 209 (1977), recognized that freedom of association

is also implicated by the agency shop. The core of the

constitutional problem concerns forcing an individual to

support an employee association which may espouse posi-

tions contrary to the employee’s ideals and beliefs. While

protecting affiliations of like-minded persons who desire

to pool talent and resources for expressive conduct is a

beneficial aspect of this Court’s First Amendment juris-

prudence, compelled association is only destructive of the

First Amendment liberties. —

“‘The fact that [employees] are compelled to

make, rather than prohibited from making, contribu-

tions for political purposes works no less an infringe-

ment of their constitutional rights. For at the heart

of the First Amendment is the notion that an individ-

ual should be free to believe as he will, and that in a

free society one’s beliefs should be shaped by his mind

and conscience rather than coerced by the State.”

Abood, 431 U.S. at 234-35 (footnote omitted; citations

omitted).

More recently, this Court in Ellis echoed the language

in Abood by noting that ‘‘by allowing the union shop at all,

we have already countenanced a significant impingement

on First Amendment rights.” Jd. at 1896.

Yet associational freedoms are not absolute. Infringe-

ments can be justified by compelling state interests which

are unrelated to the suppression of expressive conduct.

Roberts v. United States Jaycees, — U.S. —, 104 8. Ct. 3244

(1984). Federal and state laws which allow agency

shop formation are based upon the hope of maintaining

labor peace by having all employees finance the exclusive

representative in collective bargaining, thus preventing

labor unrest spawned by ‘‘free riders” — nonmembers

benefiting from representation without contributing to the

bargaining agent’s cost. This interest in labor peace has

been held as compelling; hence the constitutional impinge-

ments recognized in Abood and Ellis were justified by this

strong governmental interest. Ellis, 104 S. Ct. at 1896;

Abood, 431 U.S. at 222.

The opinion below is completely consistent with these

precedents. It merely moves one step beyond the substan-

tive observations of Abood and Ellis and delineates well

reasoned procedural protection.

B. The Court of Appeals’ Decision, Far from Creat-

ing an Unprecedented New Liberty Interest, Mere-

ly Provides Procedural Protection for the Funda-

mental Right of Association

The substantive holdings of Abood and Ellis, which

countenanced the associational impediments in order to

effectuate compelling government interests, were based

upon the ‘‘free rider” rationale. This rationale, however,

is not involved with bargaining agent expenses unrelated

to contract negotiation and administration. Fees cannot

be removed from dissenting employees’ paychecks to fin-

ance such activities without violating the First Amend-

ment.' Abood, 431 U.S. at 235-36 (employing ‘‘political

or ideological” language) ; Ellis, 104 S. Ct. at 1892 (refer-

ring to expenses ‘‘necessarily or reasonably incurred” in

bargaining duties). Consequently the freedom of associa-

tion and speech will take precedence over the governmental

interest in labor peace when the ‘‘free rider” rationale is

not applicable.

This dichotomy—governmental interests in labor re-

lations versus protected associational and speech rights—

is the core of Abood and Ellis. And this is the distinction

to which the opinion below is directed. As Judge Posner

states:

‘‘True, freedom of association . . . is no more absolute

than the other liberties [protected by] the due process

clause. . . . But the fact that it enjoys the procedural

protections capsulized in the term ‘due process’ means

that the state cannot deprive an individual of his free-

dom of association by forcing him to support a union,

except in accordance with procedures that reasonably

1 See International Association of Machinists v. Street,

367 U.S. 740, 768 (1961). After acknowledging that Congress’

purpose in allowing the agency fee was to deal with the free

rider, the Court noted that the use of the fee

“to support candidates for public office, and advance

political programs, is not a use which helps defray the ex-

penses of the negotiation or administration of collective

agreements, or the expenses entailed in the adjustment of

rievances and disputes. In other words, it is a use which

alls clearly outside the reasons advanced by the unions

and accepted by Congress why authority to make union-

shop agreements was justified.” .

assure that the deprivation will go no further than is

necessary to prevent the individual from taking a free

ride... .” 743 F.2d at 1193.

The court below recognizes that the agency shop fee

was premised on the ‘‘free rider” rationale. The non-

member benefits from negotiation and administration of

collective bargaining contracts—not from employee asso-

ciation activity not related to these functions. Hence, the

appellate court holds, based on Abood, that if dues are

collected for the latter activities, First Amendment free-

doms are implicated, and they are no longer outweighed

by a governmental interest because the ‘‘free rider” justi-

fication is inapplicable. Thus, the opinion develops a line

of reasoning based upon due process—the ultimate object

to distinguish a constitutional infringement on association-

al rights to prevent labor unrest from an exaction of fees

for activities not related to collective bargaining.

The opinion below is thus completely consistent with

earlier case law; it recognizes the constitutionality of the

ager vy shop and the justified impact on First Amendment

rights. Its sole contribution to the agency fee decisional

law is in the context of procedural due process, assuring

that payments will in fact be used to finance a bargaining

agent’s collective bargaining activity and will go no fur-

ther in depriving an employee of First Amendment liber-

ties. As Justice Harlan stated in NAACP, 357 U.S. at 460,

the ‘‘freedom to engage in association for the advancement

of beliefs and ideas is an inseparable aspect of the ‘liberty’

assured by the Due Process Clause of the Fourteenth

2 See Footnote No. 1, supra.

Amendment ....” The Seventh Circuit’s opinion acts

to provide this process.’

A DUE PROCESS LIBERTY INTEREST TRANSCENDS

THE “POLITICAL” OR “IDEOLOGICAL” INQUIRY,

THUS PROVIDING BETTER PROTECTION OF THE

FIRST AMENDMENT AND CONTINUING

ADHERENCE TO THE ‘‘FREE RIDER” RATIONALE

The dichotomy between compelled agency fees to sup-

port collective bargaining and political activities was ini-

tially delineated in International Association of Machinists

v. Street, 367 U.S. 740, a case based upon statutory inter-

pretation. This dichotomy was elevated to constitutional

status in Abood, 431 U.S. 209. These cases distinguished

proper fee expenditures for collective bargaining from

political uses of the agency fees unrelated to the bargain-

ing representative’s responsibilities.

3. This Court’s summary dismissals of Jibson v. White Cloud

Education Association, — U.S. —, 105 S. Ct. 236 (1984), and

Kempner v. Dearborn, Local 2077, — U.S. —, 105 S. Ct. 316

(1984), are not determinative here. A summary disposition,

while interpreted as a vote by this Court on the merits (Hicks v.

Miranda, 422 U.S. 332, 343-44 (1975); Ohio ex rel. Eaton v. Price,

360 U.S. 246, 247 (1959)), has limited precedential value. It gov-

erns only on the precise issues and particular facts involved in

the case which was summarily disposed. Mandel v. Bradley,

432 U.S. 173, 176 (1977); Illinois State Board of Elections v. So-

cialist Workers Party, 440 U.S. 173, 180-81 (1979). Jibson and.

Kempner involved employees contending they could not con-

stitutionally be required to pay the agency fee prior to an adju-

dication to determine its precise use and amount. The Court

of Appeals’ opinion below, however, never mandates a pre-

seizure hearing. Indeed, it notes that under the current proce-

dure an employee has 30 days after deduction to file an objec-

tion. Judge Posner does not criticize this temporal aspect of

the process; he only condemns the employee association’s con-

trol of the procedure and orders removal of any structural bias.

Jibson and Kempner are thus factually distinct.

Yet the Street and Abood decisions, while thoroughly

recognizing the liberty implications of compelled agency

fees, did not attempt to draw a clear line between proper

collective bargaining expenditures and taboo political ac-

tivities. Indeed, Abood recognized that such line drawing

presented ‘‘difficult problems” and would be even more

difficult to define in the public sector. 431 U.S. at 236.

This dichotomy has continued to prove nebulous. One

commentator noted that ‘‘[t]he difficulty with the test

suggested by Abood and Street is that there is no clear

distinction as a practical matter between collective bar-

gaining and political activity. Im many instances, union

political activity is integrally related to the pursuit of

union representational goals.” D. B. Gaebler, Union Polit-

ical Activity or Collective Bargaining? First Amendment

Limitations on the Uses of Union Shop Funds, 14 U. Cal.

D. L. Rev. 591, 601 (1981). Archibald Cox noted in his

labor law text that this issue is ‘‘the elusive problem left

unresolved by the Supreme Court of defining the kinds of

‘political’ expenses which cannot lawfully be taxed against

an unconsenting employee.” A. Cox, D. Bok, R. Gorman,

Labor Law 1184 (1977).

In Seay v. McDonnell Douglas Corporation,

371 F. Supp. 754 (C.D. Cal. 1973), rev’d on other grounds,

533 F.2d 1126 (9th Cir. 1976), the court demonstrated this

uncertainty by drawing the line to prohibit the use of

union shop funds only for partisan political activities.

371 F. Supp. at 761 n.7. Expenses for other political pur-

poses were held proper.

In the decision below, however, the court deviates from

this political/collective bargaining intersection. In recog-

nizing the due process protection of the associational lib-

erty interest, Judge Posner notes:

‘‘(T]he procedure must make reasonably sure that

. . employees’ wages will not be used to support any

union activities that are not germane to collective bar-

gaining, whether or not the activities are political or

ideological. ... [T]he agency fee [must] not [be]

used for any unrelated activities.” 743 F.2d at 1194

(emphasis in original).

Thus, the Court of Appeals’ decision transcends the

political/ideological designations that have puzzled lower

courts and commentators alike. This conclusion is a log-

ical extension of Ellis and Abood. Both of these opinions

recognized that compelled agency fees impinged on asso-

ciational freedoms, but such impingement was constitution-

ally justified by the compelling state interest in labor

peace. Yet the free rider rationale only applies to non-

members receiving the benefits of contract negotiation and

administration. International Association of Machinists

v. Street, 367 U.S. at 767-68. The justification is not ap-

plicable to employee association expenses unrelated to col-

lective bargaining—not just political or ideological ex-

penses but all unrelated financing. Hence, compelling an

individual to associate for any reason, other than to pay _

for the benefits of collective bargaining representation,

violates the freedom to associate and does so without a

compelling government interest. This is the line the opin-

ion below attempts to draw. And by avoiding the political,

ideological wording, it strengthens the First Amendment

freedoms while remaining true to the free rider justifica-

tion.

A. The Appellate Court Decision Better Effectuates

an Employee’s First Amendment Freedoms

In addressing the freedom to associate in NAACP,

357 U.S. at 460, Justice Harlan noted that ‘‘it is immaterial

whether the beliefs sought to be advanced by association

pertain to political, economic, religious or cultural matters

. .”’ Thus, the freedom to associate for a broad range

of purposes is expressly recognized.

The opinion below, by transcending the political and

ideological phraseology, is consistent with Justice Harlan’s

language. Associating only for political or ideological pur-

poses is not the only protected freedom recognized in the

NAACP case. One must not discount social, cultural, eco-

nomic, or religious purposes; they are equally protected,

but not encompassed within the Abood language. Conse-

quently, the statement by Judge Posner seems more cer-

tain: ‘‘the procedure must make reasonably sure that...

employees’ wages will not be used to support any union ac-

tivities that are not germane to collective bargaining,

whether or not the activities are political or ideological.”

743 F.2d at 1194 (emphasis in original). Not only does

this bypass the uncertainties and the hazy lines encom-

passed within political and ideological activity, but it also

recognizes the liberty of association for many other pur-

poses—not just political—unrelated to collective bargain-

ing. It is wholly consistent and protective of Justice Har-

lan’s declaration in NAACP.

The due process rationale adopted by Judge Posner

is supported by Ellis. There this Court presented the fol-

lowing test to decide if expenses are related to collective

bargaining and labor management relations:

‘‘[W]hen employees. . . object to being burdened with

particular union expenditures, the test must be wheth-

er the challenged expenditures are necessarily or reas-

onably incurred for the purpose of performing the

duties of an exclusive representative of the employees

in dealing with the employer on labor-management

issues. Under this standard, objecting employees may

be compelled to pay their fair share of not only the

direct costs of negotiating and administering a col-

lective-bargaining contract and of settling grievances

and disputes, but also the expenses of activities or

undertakings normally or reasonably employed to im-

plement or effectuate the duties of the union as ex-

clusive representative of the employees in the bargain-

ing unit.” 1048. Ct. at 1892.

Moreover, in discussing the expenses there at issue

the Court did not concern itself with the potential political

or ideological ramifications of the costs.

The test developed by Ellis supports the holding below

that expenses must be germane to collective bargaining,

and Ellis explains how a pertinent expense is to be identi-

fied. The next step is to cast aside any inquiry into politi-

cal/ideological expenses, and center the analysis entirely

on fees deducted to subsidize an employee association’s

collective bargaining responsibilities; the use of the com-

pelled dues for any unrelated activities is prohibited and

impinges on speech and associational freedoms.

B. The Reasoning of the Court of Appeals Promotes

the Purpose of the Agency Shop by Preventing

Nonmembers from Receiving Representation

Without Payment of the Fees

Compelled agency shop fees are designed to ensure

labor peace by weeding out the free riders—those who ‘‘re-

fuse to contribute to the union while obtaining benefits of

union representation that necessarily accrue to all em-

ployees.” Abood, 431 U.S. at 222. Ellis was most explicit

in stating this Court’s belief ‘‘that Congress’ essential

justification for authorizing the union shop was the desire

to eliminate free riders.” 1048. Ct. at 1892.

The Court of Appeals’ decision remains true to this

justification. By distinguishing expenses related to col-

lective bargaining from unrelated costs, the opinion not

only protects First Amendment freedoms, but it also allows

collection of the fee from employees who receive the ben-

efit of union representation in contract negotiation and

administration. Hence, an individual is not unfairly ben-

efited by the employee association’s representation free

of charge.

Admittedly, perhaps an employee could receive a ‘‘free

ride” from a bargaining agent’s undertakings unrelated to

negotiation and administration. But such a contention

ignores this Court’s language in Street, 367 U.S. at 768:

‘‘(The] use [of the agency fee] to support candidates

for public office, and advance political programs, is

not a use which helps defray the expenses of the nego-

tiation or administration .... In other words, it is

a use which falls clearly outside the reasons advanced

by the unions and accepted by Congress why authority

to make union-shop agreements was justified.”

Moreover, such an argument is also inconsistent with

the Ellts opinion. There, Justice White noted that ‘‘[o]nly

a union that is certified as the exclusive bargaining agent

is authorized to negotiate a contract .... Until such a

contract is executed, no dues or fees may be collected”

from nonmembers. 104 8. Ct. at 1892. The test subse-

quently developed by the Court was intended to aid in the

identification of union expenses related to its exclusive

bargaining role. This quoted language and the accom-

panying test indicated that the free rider justification for

the creation of the union shop only applies to nonmembers

benefiting from contract related duties. There is no hitch-

hiking on activities unrelated to collective bargaining un-

dertakings.

Thus, the free rider justification is addressed to the

administrative and negotiating duties of the employee as-

sociation. Street, Abood, and Ellis all concentrate on these

responsibilities when discussing the reasons for adopting

the agency shop. The test developed by the Seventh Cir-

euit is fully consistent with this purpose.

CONCLUSION

The liberties of speech and association reposed in

the individual by the First Amendment have long been

recognized by this Court not only as fundamental freedoms,

but also as rights crucial to the functioning of a democracy.

As such, these freedoms are entitled to a due process lib-

erty protection before they are invaded by governmental

action. The opinion of the Court of Appeals is consistent

with these premises. It recognizes that the agency shop is

a justifiable impingement on the freedom of association,

but only insofar as the dues are used for activities related

to collective bargaining. Any other fee exaction violates

the freedoms this Court has so long protected. Conse-

quently, by developing a due process rationale and by dis-

pensing with the political and ideological labels, the opinion

‘

below favors fundamental liberties, and merely provides

procedural protection for substantive rights already recog-

nized by this Court.

DATED: September, 1985.

Respectfully submitted,

Ronatp A. ZumMBRUN

Joun H. Frnpiey