# Amicus Curiae Brief — Janus v. Am. Fed'n, 138 S. Ct. 54 (2017) (No. 16-1466) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0755%3A59 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2017 ## Text 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 “§ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0755%3A59. Public record. Not legal advice.