Amicus Curiae Brief — Janus v. Am. Fed'n, 138 S. Ct. 54 (2017) (No. 16-1466)

No. 16-1466

IN THE

Supreme Court of the Gnited States

MARK JANUS,

Petitioner,

Vv.

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 31, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, AFL-CIO,

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

MARK SCHNEIDER

(Counsel of Record)

9000 Machinists Place

Upper Marlboro, MD 20772

(301) 967-4510

mschneider@iamaw.org

Mosaic - (301) 927-3800 - Cheverly, MD

>_>

i

TABLE OF CONTENTS

TABLE OF AUTHORITIEG............::cccccesseeeeeeees

INTEREST OF AMICUS CURIAE..............000-

|. Hanson Adequately Addressed the

First Amendment Question the Court

Found to be Presented by the Railway

Labor Act’s Authorization of Union

SHOP AMTESMENUIS. ...........ccccccecerecceccececeeees

Il. Abood Correctly Looked to Street for

Guidance with Respect to the

Requirements of the First Amendment..

NII tieticsinscsvssinchenbetiiadestantiadistuinionvctnsionies

13

20

ili

TABLE OF AUTHORITIES

Page

CASES

Abood v. Detroit Board of Education,

ty Ce en passim

American Mfrs. Mut. Ins. Co. v. Sullivan,

I i 10

Communications Workers v. Beck,

Re A I iceticiccnntnsicrschinezsncusminensis 8, 10, 16

Davenport v. Washington Education Ass’n,

4 tf 8, RACs ee oeee 6, 14, 20

DeMille v. American Federation of Radio

Artists, 31 Cal.2d 139, 187 P.2d 769 (1947).. 16

Ellis v. Railway Clerks, 466 U.S. 435 (1984) .. 2, 7, 15

Ford Motor Co. of Canada,

1 BNA Arb. Rep. 439 (1946)............:cc0ccc00. 17

Harris v. Quinn, 573 U.S. (2014)....... passim

Jackson v. Metropolitan Edison Co.,

REE 10

Keller v. State Bar of California,

EES SS 4,11,13

Knox v. Service Employees,

I 16, 19

Lathrop v. Donohue, 367 U.S. 820 (1961)... passim

Lehnert v. Ferris Faculty Ass'n,

RE GI SI icecscrsncsoietsceiiahvctisslasescacmancense 8

Locke v. Karass, 555 U.S. 207 (2009) .............

iv

TABLE OF AUTHORITIES—Continued

Machinists v. Street, 367 U.S. 740 (1961)... passim

NLRB v. Food Fair Stores, Inc.,

ge | fk | en 16

NLRB v. General Motors Corp.,

ac idncsecemiabensi 8

Public Utility Comm’n v. Pollak,

sg ESS ene 10

Railway Employes’ Dept. v. Hanson,

SO SIRE, STI i ciniscincseiseddcenasoneusesesecee passim

White v. Communications Workers

Local 13000, 370 F.3d 346 (3d Cir. 2004)... 9, 10

STATUTES:

es Se Sis iii icicminnctaincinaeahine 8, 16, 17

45 U.S.C. § 152, Eleventh(a).................0000+ 8, 15, 18

MISCELLANEOUS:

2 NLRB, Leg. Hist. of the LMRA (1948).......... 16, 17

Dudra, Approaches to Union Security in

Switzerland, Canada and Columbia,

86 Monthly Lab. Rev. 136 (19638)................. 17

]

BRIEF OF THE INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, AFL-CIO, AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

The International Association of Machinists and

Aerospace Workers, AFL-CIO, (“Machinists”) sub-

mits this brief as amicus curiae in support of the

respondents. '

INTEREST OF AMICUS CURIAE

The Machinists Union, founded in 1888 as a union

representing railroad workers, is now among the

largest industrial trade unions in North America, rep-

resenting nearly 600,000 active and retired members

in the railroad, airline, aerospace, woodworking,

shipbuilding and manufacturing sectors organized in

over 1000 local unions throughout the United States

and Canada. The Machinists Union is one of the larg-

est rail and airline workers’ unions in the country,

representing approximately 175,000 railroad and air-

line workers covered by the Railway Labor Act, 45

U.S.C. § 151 et seq. (RLA). It also represents employ-

ees subject to the National Labor Relations Act, 29

U.S.C. § 151 et seq., and public employees subject to

a variety of state employment laws.

As one of the oldest and largest unions representing

workers under the RLA, the Machinists Union has

' Counsel for the petitioners and counsel for the respondents

have consented to the filing of amicus briefs. No counsel for a

party authored this brief amicus curiae in whole or in part, and

no person or entity, other than the amicus, made a monetary

contribution to the preparation or submission of this brief.

2

been a party to or has participated in many of the sem-

inal cases before this Court concerning the agency

shop under the RLA. In particular, the Machinists

Union (or one of the unions that through merger be-

came part of the Machinists Union) was the one of the

unions whose contracts were at issue in Railway Em-

ployes’ Dept. v. Hanson, 351 U.S. 225 (1956), was the

petitioner in Machinists v. Street, 367 U.S. 740 (1961),

and the respondent in Ellis v. Railway Clerks, 466

U.S. 435 (1984), cases that defined the proper scope of

agency shop provisions under the Railway Labor Act.

Its current members, including those subject to the

Railway Labor Act, the National Labor Relations Act,

and various state laws governing public employees,

have a vital interest in the outcome of this case.

SUMMARY OF ARGUMENT

Petitioner argues that this Court should overrule

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

(1977), in part because that case is an outlier that

does not rest on sound First Amendment precedent.

In particular, Petitioner asserts that Abood improp-

erly and carelessly relied on Hanson and Street, two

cases in which this Court rejected claims by railroad

employees that they had a First Amendment right to

refuse to pay servicing fees to the union that repre-

sented them pursuant to union shop provisions in

the governing labor agreements. It also argues that

Hanson and Street on their own terms are unsound.

Both of these claims are mistaken.

Hanson and Street are cases that considered wheth-

er the Railway Labor Act’s union shop provision, § 2,

Eleventh, 45 U.S.C. § 152, Eleverth, violated the First

3

Amendment. In both of these cases, the Court held

that the union shop provisions were lawful, but that

the unions could not, over the objection of the em-

ployees they represent, collect fees for political and

similar activities that are not germane to the unions’

collective bargaining responsibilities. Abood v. De-

troit Board of Education, 431 U.S. 209 (1977), relied

principally on those two decisions in holding that con-

sistent with the First Amendment a union may charge

nonmembers for the costs associated with activities

germane to its collective bargaining duties, but not for

certain activities such as political activities.

Petitioner relies on dicta in Harris v. Quinn, 573

U.S. __ (2014), questioning whether Abood had cor-

rectly relied on Hanson and Street in holding that

consistent with the First Amendment a union may

charge a non-member an agency fee. But Abood'’s re-

liance on those earlier decisions was sound. To be

sure, the state action doctrine has evolved subsequent

to the Court’s decisions in Hanson and Street, so that

it is no longer the case that the terms of the collective

bargaining agreements between unions and private

railroads would implicate the First Amendment, and

for that reason, the Court’s decision in this case will

not directly implicate union shop agreements under

the Railway Labor Act. However, Hanson and Street

plainly and directly resolved the First Amendment

claims brought in those cases, and did so in a manner

that has been adopted not only in public sector union

security cases, but also in cases challenging compul-

sory bar dues. And, while those cases’ state action

holdings are no longer good law, their First Amend-

ment reasoning concerning the agency shop remains

sound and fully consistent with contemporary First

4

Amendment jurisprudence. Petitioner's claims that

these two cases are no longer legitimate First Amend-

ment precedents, and that Street was not a First

Amendment precedent to begin with, do not with-

stand scrutiny.

Hanson, on First Amendment grounds, reversed a

holding of the Nebraska Supreme Court that a union

shop provision violated the First Amendment, and held

that “the requirement for financial support of the col-

lective-bargaining agency by all who receive the bene-

fits of its work . . . does not violate . . . the First

Amendment{].” 351 U.S. at 235. In so holding, it relied

in part on what it understood to be the self-evident pro-

postion that in the closely analogous context of bar

dues, no one would seriously claim that state require-

ments that an attorney be a member of the state bar

violated the First Amendment. Jbid. And, when the

Court subsequently addressed the issue of the consti-

tutionality of bar dues in in Lathrop v. Donohue, 367

U.S. 820 (1961), seven Justices treated the constitu-

tionality of such a requirement as a foregone conclu-

sion, relying on its First Amendment analysis in Han-

son. When the issue of the constitutionality of required

bar dues arose again in Keller v. State Bar of Califor-

nia, 496 U.S. 1 (1990), the Court once again rejected

the First Amendment challenge based on the reason-

ing of Hanson and Street. Hanson's First Amendment

holding concerning agency fees is sound, frequently

relied upon by the Court, and has never seriously been

questioned, until the Cour. 's dicta in Harris v. Quinn.

Harris also criticized Abood’s reliance on Street, on

the ground that Siveet was decided on statutory

grounds based on the doctrine of constitutional avoid-

5

ance, instead of directly on First Amendment grounds.

But if there was ever a case in which a statutory deci-

sion based on constitutional avoidance provides un-

ambiguous guidance on the Court's understanding of

the First Amendment, it is Street.

The statute that Street construed to avoid a consti-

tutional ruling was the agency shop provision of the

RLA, section 2, Eleventh. The difficulty the Court

avoided was that that provision, unlike the agency

shop provision in the NLRA, on its face did not except

from the reach of the compulsory agency fee monies

used to fund a union’s political expenditures (which

the Court in Hanson already had ruled could not be

assessed against the will of an objecting worker). In

particular, the RLA agency shop provision expressly

allowed the union to collect from all employees it

represented “assessments” as well as “dues.” And, in

this regard, the legislative history of the RLA made it

clear that “assessments” was intended to include

charges to fund union political activities. This point

was underscored by the previous enactment of the

National Labor Relations Act, and its legislative his-

tory, where Congress excluded “assessments” from

the reach of union security, and, as the legislative his-

tory of that Act made clear, did so precisely because

it did not intend to allow unions under the NLRA to

assess workers charges to fund political activities

over the workers’ objections. Yet when it later added

a union shop provision to the RLA, Congress made a

different decision and allowed unions to collect po-

litical “assessments.”

Given that the Court since Hanson has consistently

held that charges to fund political activities could not

6

be part of compulsory agency fees, and given that the

RLA appeared to have authorized the collection of

just such charges, the constitutional avoidance un-

dertaken in Street was, to put it gently, “not without

its difficulties,” Street, 367 U.S. at 784-786 (Black, J.,

dissenting). For present purposes, it is enough to ac-

knowledge that Street rested on the barest pretense

of statutory construction and can only be explained,

as the Court has consistently understood, as a deci-

sion describing “(t]he constitutional floor for unions’

collection and spending of agency fees.” Davenport

v. Washington Education Ass’n, 551 U.S. 177, 185

(2007). It cannot be dismissed as a case having noth-

ing to do with the First Amendment.

There is no sound basis to overrule Abood. It most

certainly cannot be given the back of the hand on the

mistaken assertion that it relied on carelessly rea-

soned or inapposite precedent.

ARGUMENT

“Consideration of the question whether an agency-

shop provision in a collective-bargaining agreement

covering governmental employees is, as such, consti-

tutionally valid” in Abood v. Detroit Board of Educa-

tion, 431 U.S. 209, 217 (1977), “beg[a]n with two cas-

.. . that on their face go far toward resolving the

issue .. . Railway Employes’ Dept. v. Hanson, [351

U.S. 225 (1956)], and Machinists v. Street, (367 U.S.

740 (1961)].” “Taken together Hanson and Street

make clear that the local union cannot charge the

nonmember for certain activities, such as political or

ideological activities (with which the nonmembers

may disagree)” but “can charge nonmembers for ac-

7

tivities more directly related to collective bargain-

ing.” Locke v. Karass, 555 U.S. 207, 213 (2009). “Han-

son, Street, and Abood” have been understood to “set

forth a general First Amendment principle: The First

Amendment permits the government to require both

public sector and private sector employees who do

not wish to join a union designated as the exclusive

collective-bargaining representative at their unit of

employment to pay that union a service fee as a con-

dition of their continued employment.” [bid. See El-

lis v. Railway Clerks, 466 U.S. 435, 455-56 (1984)

(citing Abood, Street and Hanson to establish that

“i]t has long been settled that such interference with

First Amendment rights [as caused by the union

shop] is authorized by the governmental interest in

industrial peace”).

In Harris v. Quinn, 573 U.S. ____ (2014), the ma-

jority opinion asserted that “[t]he Abood Court seri-

ously erred in treating Hanson and Street as having

all but decided the constitutionality of compulsory

payments to a public-sector union, [because] Street

was not a constitutional decision at all, and Hanson

disposed of the critical question in a single unsup-

ported sentence.” Slip op. 17.2 Taking up each of

* This criticism of Abood by the Harris majority opinion is

plainly dicta. The holding of Harris was a refusal “to approve

a very substantial expansion of Abood’s reach” to cover “per-

sonal assistants” who were not “full-fledged public employ-

ees.” Id. at 20. And this holding rested on the fact that in rep-

resenting the nonemployee personal assistants “the union’s

powers and duties are sharply circumscribed,” while “Abood’s

rationale, whatever its strengths and weaknesses, is based on

the assumption that the union possesses the full scope of pow-

ers. .. under American labor law.” Jd. at 25.

8

these points separately, we show that Abood correct-

ly looked to Hanson and Street for “guidance regard-

ing what the First Amendment will countenance”

with respect to public sector agency shop arrange-

ments, precisely because those cases considered

analogous First Amendment challenges to “a govern-

mentally authorized union-shop agreement” under

the Railway Labor Act. Lehnert v. Ferris Faculty

Ass’n, 500 U.S. 507, 515 & 516 (1991).

I. Hanson Adequately Addressed the First

Amendment Question the Court Found to be

Presented by the Railway Labor Act’s

Authorization of Union Shop Agreements.

In Hanson, this Court reviewed a decision of the

Nebraska Supreme Court that “held that the union

shop agreement violates the First Amendment in

that it deprives the employees of their freedom of

association and violates the Fifth Amendment in

that it requires the members to pay for many things

besides the cost of collective bargaining.” 351 U.S.

at 230.° The principal question addressed by this

* The Railway Labor Act, like the National Labor Relations

Act, “permits an employer and a union to enter into an agree-

ment requiring all employees to become union members as a

condition of continued employment, but the ‘membership’ that

may be so required has been ‘whittled down to its financial

core.” Communications Workers v. Beck, 487 U.S.735, 745

(1988), quoting NLRB v. General Motors Corp., 373 U.S. 734,

742 (1963). See 29 U.S.C. § 158(a)(3); 45 U.S.C. § 152, Eleventh(a).

Thus, there is no legally effective difference between a “union

shop” agreement requiring “membership” and an “agency shop”

agreement requiring payment of an amount equal to member-

ship dues. See General Motors, 373 U.S. at 743-44.

9

Court was whether the Railway Labor Act’s authori-

zation of such agreements raised “problems. . . un-

der the First Amendment” in that “the union shop

agreement forces men into ideological and political

associations which violate their right to freedom of

conscience, freedom of association, and freedom of

thought protected by the Bill of Rights.” Jd. at 236.

Addressing this question, Hanson held that so long

as “(t]he financial support required relates. . . to the

work of the union in the realm of collective bargain-

ing,” id. at 235, “there is no more an infringement or

impairment of First Amendment rights than there

would be in the case of a lawyer who by state law is

required to be a member of an integrated bar,” id. at

238. Thus, “the requirement for financial support of

the collective-bargaining agency by all who receive

the benefits of its work . . . does not violate . . . the

First... Amendment{[].” /bid.

In reaching this First Amendment question, the

Court noted that “[t]he union shop provision of the

Railway Labor Act is only permissive” and that “Con-

gress has not compelled nor required carriers and

employees to enter into union shop agreements.”

351 U.S. at 231. “[NJjevertheless,” the Court found

that “justiciable questions under the First and Fifth

Amendments were presented since Congress, by the

union shop provision of the Railway Labor Act,

sought to strike down inconsistent laws in 17 States”

so that “the federal statute is the source of the pow-

er and authority” for the “private agreement.” Jd. at

231-32. In other words, Hanson “found that the

union’s implementation of the union-shop provision

amounted to state action” on the ground that “such

clauses bore the imprimatur of federal law.” White

10

v. Communications Workers Local 13000, 370 F.3d

346, 352 (3d Cir. 2004).

In subjecting the union shop agreements autho-

rized by the Railway Labor Act to First Amendment

scrutiny on that ground, Hanson relied upon Public

Utility Comm’n v. Pollak, 343 U.S. 462-63 (1952).

See Hanson, 351 U.S. at 232. Pollak’s holding that

governmental permission is sufficient to subject pri-

vate conduct to First Amendment scrutiny is out of

line with the current state action analysis. See, e.g.,

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 53-54 (1999). To that extent, Hanson is no longer

a viable state action precedent. See Jackson v. Met-

ropolitan Edison Co., 419 U.S. 345, 362 (1974)

(Douglas, J., dissenting) (citing Hanson as contrary

to the majority opinion) & 366-67 (Marshall, J., dis-

senting) (same). Be that as it may, Abood correctly

understood that “the union shop, as authorized by

the Railway Labor Act, . . . was found to result from

governmental action in Hanson,” and “(t]he plain-

tiffs’ claims in Hanson failed, not because there was

no governmental action, but because there was no

First Amendment violation.” 431 U.S. at 226.

The majority opinion in Harris does not criticize

Abood for treating Hanson as a First Amendment

precedent, so much as it criticizes Hanson’s

“dismiss[al of] the objecting employees’ First

Amendment argument with a single sentence” find-

ing “‘no more an infringement or impairment of First

Amendment rights than there would be in the case

of a lawyer who by state law is required to be a mem-

ber of an integrated bar.’ Jd. at 238.” Slip op. 11. The

Harris majority opinion finds “[{t]his explanation. . .

1]

remarkable for two reasons,” ibid., both of which

concern Hanson's treatment in Lathrop v. Donohue,

367 U.S. 820 (1961).

The first “remarkable” point noted by the Harris

majority is that “the Court had never previously held

that compulsory membership in and the payment of

dues to an integrated bar was constitutional” and

when “that issue did... reach the Court .. . five years

later, . . . it produced a plurality opinion and four sep-

arate writings. See Lathrop v. Donohue, 367 U.S. 820

(1961) (plurality opinion).” Slip op. 11. The truly “re-

markable” thing, however, is that when this issue did

reach the Court in Lathrop, seven of the Justices

treated “the constitutionality of such a requirement

[Jas .. . a foregone conclusion,” ibid., with six of

those Justices relying solely on the analogy between

the integrated bar and the union shop drawn in Han-

son. Lathrop, 367 U.S. at 842-443 & 849-50. See Keller

v. State Bar of California, 496 U.S. 1, 7-9 (1990) (dis-

cussing Lathrop’s reliance on Hanson).

Justice Brennan's plurality opinion in Lathrop stat-

ed that “the case presents a claim of impingement

upon freedom of association no different from that

which we decided in Railway Employes’ Dept. v.

Hanson, 351 U.S. 225,” and, after quoting the sentence

from Hanson singled out for criticism by the Harris

majority, he concluded that, “[gjiven the character of

the integrated bar shown on this record, . . . we are

unable to find any impingement upon protected rights

of association.” 367 U.S. at 842 & 843. Justice Har-

lan’s concurring opinion stated, likewise, that “[t]he

Hanson case .. . surely lays at rest all doubt that a

State may Constitutionally condition the right to prac-

12

tice law upon membership in an integrated bar.” /d.

at 849.‘ Justice Black agreed that “the question posed”

by the “integrated bar” is “identical to that posed” by

the union shop but dissented on the ground that both

are unconstitutional. Jd. at 871.

The second “remarkable” point noted by the Har-

ris majority is that “in his Lathrop dissent, Justice

Douglas, the author of Hanson, came to the conclu-

sion that the First Amendment did not permit com-

pulsory membership in an integrated bar” and that

“(t]he analogy drawn in Hanson, he wrote, fails.”

Slip op 11. Justice Douglas was alone in rejecting the

analogy he had drawn in Hanson. But even so, Jus-

tice Douglas expressly reaffirmed Hanson's ruling

that “Congress has the power to permit a union-shop

agreement that exacts from each beneficiary his

share of the cost of getting increased wages and im-

proved working conditions” and then added that

“(t]he power of a State to manage its internal affairs

by requiring a union-shop agreement would seem to

be as great.” Lathrop, 367 U.S. at 879.

When the Court returned to the constitutionality

of the integrated bar in Keller, it once again relied

upon the “substantial analogy between the relation-

ship of the State Bar and its members, on the one

hand, and the relationship of employee unions and

their members, on the other” and refused to “distin-

guish the two situations on the grounds that the

compelled association in the context of labor unions

serves only a private economic interest in collective

* Justice Whittaker concurred on separate grounds. /d. at

865.

13

bargaining, while the State Bar serves more sub-

stantial public interests.” 496 U.S. at 12 & 13. As

Chief Justice Rehnquist explained, in his opinion

for a unanimous Court, “agency shop arrangements

.. . Serve substantial public interests as well,” and

“[wje are not possessed of any scales which would

enable us to determine that the one outweighs the

other sufficiently to produce a different result here.”

Id. at 13.

In sum, on both occasions when the Court directly

addressed the extent to which “compulsory member-

ship in and the payment of dues to an integrated bar

[i]s constitutional,” Harris, slip op. 11, the Court ex-

pressly endorsed and relied upon Hanson's analogy

with the RLA’s authorization of union shop agree-

ments. The assertion that the Court has not previ-

ously given serious consideration to First Amend-

ment objections to compulsory fee arrangements

does not withstand scrutiny.

Il. Abood Correctly Looked to Street for

Guidance with Respect to the Requirements

of the First Amendment.

The Harris majority criticizes Abood’s reliance on

Street in “decid[ing] the constitutionality of compul-

sory payments to a public sector union” on the

grounds that “Street was not a constitutional deci-

sion at all.” Slip op. 17. It is true that Street “con-

strued the RLA... ‘to deny the unions, over an em-

ployee’s objection, the power to use his exacted

funds to support political causes which he opposes.”

Id. at 13, quoting Street, 367 U.S. at 768-69. But, as

the Harris majority recognized, Street did so, only to

14

avoid “constitutional questions ‘of the utmost gravi-

ty.” Ibid., quoting Street, 367 U.S. at 749.

As Abood puts the same point, “Street embraced an

interpretation of the Railway Labor Act not without

its difficulties, see 367 U.S. at 784-786 (Black, J., dis-

senting); id. at 799-803 (Frankfurter, J., dissenting),

precisely to avoid facing the constitutional issues

presented by the use of union-shop dues for political

and ideological purposes unrelated to collective bar-

gaining, id. at 749-50.” Abood, 431 U.S. at 232. This is

something of an understatement, because the hold-

ing in Street rests on the barest pretense of statutory

construction and can only be explained as an attempt

to describe what the Court considered to be “[t]he

constitutional floor for unions’ collection and spend-

ing of agency fees.” Davenport v. Washington Edu-

cation Ass’n, 551 U.S. 177, 185 (2007).

Street held that Ҥ 2, Eleventh [of the Railway La-

bor Act] is to be construed to deny the unions, over

an employee's objection, the power to use his exact-

ed funds to support political causes which he oppos-

es.” 367 U.S. at 768-69. The Court had no constitu-

tional concern “as to other union expenditures

objected to by an employee and not made to meet

the costs of negotiation and administration of collec-

tive agreements, or the adjustment and settlement of

grievances and disputes.” Ibid.

The language of RLA § 2, Eleventh contains not

the slightest suggestion that employees covered by a

permitted union shop agreement can opt out of pay-

ing any portion of the union dues, fees and assess-

ments uniformly paid by union members. To the

contrary, the statute states that covered employers

15

and unions may enter into agreements requiring em-

ployees to “become members of the labor organiza-

tion representing their class or craft” by “tender[ing]

the periodic dues, initiation fees, and assessments

(not including fines and penalties) uniformly re-

quired as a condition of acquiring or retaining mem-

bership.” 45 U.S.C. § 152, Eleventh(a). By providing

that all covered employees must “tender the period-

ic dues, initiation fees, and assessments .. . uni-

formly required as a condition of acquiring or re-

taining membership” and excluding from the

required exactions only “fines and penalties,” the

terms of § 2, Eleventh make it exceedingly clear that

the amount that must be tendered is the full amount

an employee would have to pay to become and re-

main a member of the union.

At the time it amended the Railway Labor Act to

add § 2, Eleventh, “Congress was well aware of the

broad scope of traditional union activities,” because

during the 1950 hearings on the amendment, “Con-

gress was adequately informed about the broad

scope of union activities aimed at benefitting mem-

bers.” Ellis, 466 U.S. at 446. Thus, as this Court aptly

observed, “in light of the absence of express limita-

tions in § 2, Eleventh it could plausibly argued that

Congress purported to authorize the collection from

involuntary members of the same dues paid by regu-

lar members.” /bid.

Inclusion of the term “assessments” in the phrase

“periodic dues, initiation fees, and assessments” is

particularly significant in this regard, because that

term has a special meaning in the labor context that

explains its absence from the second proviso to

16

§ 8(a)(3) of the National Labor Relations Act, as

amended in 1947, on which RLA § 2, Eleventh was

modeled. See Communications Workers v. Beck,

487 U.S. at 745. “An assessment,” in labor law par-

lance, “is a charge levied on each member in the na-

ture of a tax or some other burden for a special pur-

pose, not having the character of being susceptible

of anticipation as a regularly recurring obligation as

in the case of ‘periodic dues.” NLRB v. Food Fair

Stores, Inc., 307 F.2d 3, 11 (3d Cir. 1962). See, e.g.,

Knox v. Service Employees, 567 U.S. ___ (2012), slip

op. 4 (involving an “Emergency Temporary Assess-

ment to Build a Political Fight-Back Fund.”). The

NLRA proviso limits its authorization of union secu-

rity agreements to requiring payment of “periodic

dues and the initiation fees,” 29 U.S.C. § 158(a)(3),

and the legislative history demonstrates that the

omission of “assessments” was a conscious decision

reflecting Congress’s understanding of that term.

A cause celebre during the debates over the 1947

union security amendments to the NLRA was the case

of Cecil B. DeMille, who “was forced to join a union in

order to be able to appear on the radio” and was not

allowed to “make any further broadcasts on the ra-

dio, simply because . . . he refused to pay the assess-

ment made on him” by the union “to fight a cause he

did not believe.” 2 NLRB, Leg. Hist. of the LMRA

1061-62 (1948).° Senator Taft explained that this sort

° DeMille was discharged from employment for refusing to

pay a $1 special assessment levied by the union for the pur-

pose of opposing an initiative that would have outlawed union

security agreements in California. See DeMille v. American

Federation of Radio Artists, 31 Cal.2d 139, 187 P.2d 769 (1947).

17

of problem would be addressed by the second provi-

so which “is substantially the rule now in effect in

Canada” drawn from “a decision of the justices of the

Supreme Court of Canada in an arbitration case.” Jd.

at 1422. The decision referred to by Senator Taft was

that of Justice I.C. Rand in Ford Motor Co. of Canada,

1 BNA Arb. Rep. 439 (1946). The theory of the “Rand

formula,” which allows nonmembers to be required

to pay “dues,” but not “a special assessment,” id. at

445, was that “payment of regular union dues, not in-

cluding initiation fees and assessments, would be an

approximately fair ‘service fee,’ which would not seri-

ously involve nonmembers in the payment for politi-

cal or other union purposes of which they did not ap-

prove.” Dudra, Approaches to Union Security in

Switzerland, Canada and Colombia, 86 Monthly

Lab. Rev. 136, 138 (1963).

In drafting the 1947 amendments to the union se-

curity provisions in the NLRA, Congress deliberately

tracked “the rule now in effect in Canada,” 2 Leg.

Hist. of LMRA 1422, by allowing a requirement that

nonmembers pay “regular union dues”—but not “as-

sessments”—as a means of “not seriously involv[ing]

nonmembers in the payment for political or other

union purposes of which they did not approve,” Du-

dra, 86 Monthly Lab. Rev. at 138. Yet, three years

later, in adding § 2, Eleventh to the RLA, Congress

expressly authorized requiring nonmembers to pay

not just “the periodic dues and the initiation fees uni-

formly required as a condition of acquiring or retain-

ing [union] membership,” 29 U.S.C. § 158(a)(3), but

“the periodic dues, initiation fees, and assessments

(not including fines and penalties) uniformly re-

quired as a condition of acquiring or retaining mem-

=

i8

bership,” 45 U.S.C. § 152, Eleventh(a) (emphasis

added). The inclusion of the term “assessments” in

RLA § 2, Eleventh gives the strongest possible indi-

cation that Congress meant to authorize agreements

that require nonmembers to pay all of the various

types of charges “uniformly required” of union mem-

bers, with the sole exception of “fines and penalties.”

Street’s “hold[ing] . . . that § 2, Eleventh is to be

construed to deny the unions, over an employee's ob-

jection, the power to use his exacted funds to sup-

port political causes he opposes,” 367 U.S. at 768-69,

is the culmination of a long section of the opinion

headed, “THE SAFEGUARDING OF RIGHTS OF DISSENT,” id.

at 765. See id. at 765-70. From a careful examination

of § 2, Eleventh’s legislative history, Street found that

“[a] congressional concern over possible impinge-

ment on the interests of individual dissenters from

union policies is . . . discernible.” Jd. at 766. That

background allowed the Court to conclude that

“Congress incorporated safeguards in the statute to

protect dissenters’ interests.” Jd. at 765. On that ba-

sis, the Court asserted that it was only “respect([ing]

this congressional purpose when [it] construe[d] § 2,

Eleventh as not vesting the unions with unlimited

power to spend exacted money” and as “denying the

unions the rights, over the employee's objection, to

use his money to support political causes which he

opposes.” Jd. 768.°

* The proposition that “dissent is not to be presumed—it

must affirmatively be made known to the union by the dissent-

ing employee, Street, 367 U.S. at 774, thus was an essential

aspect of Street’s “hold{ing] . . . that [RLA] § 2, Eleventh is to be

construed to deny the unions, over an employee's objection,

19

The Street majority relied entirely on the addition

of the proviso concerning “periodic dues, initiation

fees, and assessments” as the source of the RLA'’s

“safeguards . . . protect[ing] dissenters’ interests.”

367 U.S. at 765. But, as we have demonstrated, it is

this very proviso that indicates Congress's intent to

allow a requirement that all employees pay the full

amounts “uniformly required” as a condition of full

union membership. It is, therefore, quite clear that

the proviso was intended to protect “opponents of

the unions” or “dissatisfied member(|s]” from losing

their jobs as a result of expressing “criticism” of the

union. Jd. at 802 (dissenting opinion). But that pro-

tection was intended to have no effect on the union’s

ability to require that all employees pay full dues, ini-

tiation fees and assessments.

In short, Street’s construction of RLA § 2, Eleventh

can only be understood as the majority's understand-

ing of what the First Amendment required with re-

spect to the application of the authorized union secu-

rity agreements. As Justice Frankfurter’s dissenting

opinion demonstrates, 367 U.S. at 806-07, the major-

ity’s perception of a First Amendment problem in

this private conduct was most likely contrary to con-

temporary state action analysis. It is certainly con-

trary to modern state action analysis. Regardless of

the power to use his exacted funds to support political causes

which he opposes,” id., at 768-69. Accordingly, the character-

ization of this aspect of the Street opinion as “dicta” and noth-

ing more than an “offhand remark” made “in passing” in Knox

v. Service Employees, 567 U.S. ___ (2012), slip op. 12-13, is in-

correct. As Knox did not concern the interpretation of the

Railway Labor Act, its description of Street is dicta.

20

whether Street erred in discerning a need to apply

the First Amendment, Abood correctly understood

that opinion as setting “[t]he constitutional floor for

unions’ collection and spending of agency fees,”

Davenport v. Washington Education Ass’n, 551 U.S.

at 185, in those instances where the First Amend-

ment does apply.

This Court does not lightly overturn a long and

consistent series of its own decisions. It should not

do so here by giving them the back of its hand by as-

serting that they were careless enacted based on

misreadings of earlier Court decisions, because that

is simply not the case.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted,

MARK SCHNEIDER

(Counsel of Record)

9000 Machinists Place

Upper Marlboro, MD 20772

(301) 967-4510

mschneider@iamaw.org