The Use of Labor Union Dues For Political Purposes: A Legal Analysis

Congressional research reportAug 2, 2000

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Prepared for Members and Committees of Congress

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Under union shop agreements, labor unions must establish strict safeguards and procedures for

ensuring that non-members’ dues are not used to support certain political and ideological

activities that are outside the scope of normal collective bargaining activities. The “union shop”

or “agency shop” agreement essentially provides that employees do not have to join the union,

but must support the union in order to retain employment by paying dues to defray the costs of

collective bargaining, contract administration, and grievance matters.

In a line of decisions, the Supreme Court has addressed this issue and has concluded that

compulsory union dues of non-members may not be used for political and ideological activities

that are outside the scope of the unions’ collective bargaining and labor-management duties when

non-members object to such use. Seven Supreme Court decisions have held that union dues

exacted from dissenting non-members may not to be used for political and ideological purposes

and must be expeditiously refunded to dissenting non-members according to proper procedural

safeguards: (1) International Association of Machinists v. Street, 367 U.S. 740 (1961); (2)

Railway Clerks v. Allen, 373 U.S. 113 (1963); (3) Abood v. District Board of Education, 431 U.S.

209 (1977); (4) Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435 (1984); (5) Chicago

Teachers Union v. Hudson, 475 U.S. 292 (1986); (6) Communications Workers of America v.

Beck, 487 U.S. 735 (1988); and Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991).

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Introduction ..................................................................................................................................... 1

Labor Union Political Activity Under the Federal Election Campaign Act of 1971, as

Amended ...................................................................................................................................... 2

Background of Union Security Agreements.................................................................................... 4

Supreme Court Decisions Concerning The Use of Compulsory Union Dues for Political

Purposes ....................................................................................................................................... 6

Author Contact Information ...........................................................................................................11

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In 1988, the Supreme Court, in Communications Workers of America v. Beck (hereinafter referred

to as Beck), ruled against organized labor and held that non-union employees could not be

required to pay full union dues if some of those funds were to be used for activities unrelated to

collective bargaining.1 Under § 8(a)(3) of the National Labor Relations Act (NLRA),2 a labor

union and an employer can enter into a contractual agreement requiring all employees in the

bargaining unit to pay union dues as a condition of employment no matter whether such

employees became union members or not. The Supreme Court in Beck concluded that § 8(a)(3) of

the NLRA (1) does not permit a labor union to expend funds on non-related union activities, such

as lobbying and political activities, when dues-paying non-member employees object and (2)

authorizes only those dues and fees necessary to the duties relating to labor-management

relations.3 In 1991 the Supreme Court in Lehnert v. Ferris Faculty Association, expanded the

scope of the Beck holdings to include public sector employees so that such employees may not be

compelled to subsidize political or ideological activities of public employee unions.4

During the 1992 presidential election year, on April 13, 1992, President George Bush issued

Executive Order 12800 requiring federal contractors to post notices informing employees of their

rights under the Beck decision. It required notification to federal contractor non-union employees

that their union dues may not be used to support political activities that they oppose. It also

required the Secretary of Labor to issue rules providing for financial disclosure and reporting

requirements for labor unions in order to provide enforcement of the Beck holdings.5 However,

when President Bill Clinton took office, he repealed former President Bush’s Executive Order by

issuing Executive Order 12836 on February 1, 1993, which revoked certain executive orders

concerning federal contracting.6

Prior to the Beck and Lehnert decisions, the Supreme Court regularly revisited this issue in a line

of decisions which held that labor unions cannot use dissenting non-union employees’ dues for

political and ideological activities outside the scope of the activities related to collective

bargaining. Such cases include: (1) International Association of Machinists v. Street, 367 U.S. 740

(1961); (2) Railway Clerks v. Allen, 373 U.S. 113 (1963); (3) Abood v. District Board of

Education, 431 U.S. 209 (1977); (4) Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435 (1984);

and (5) Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). These cases will be discussed

in more detail in part four of this report. Although this report will not discuss the case in more

detail since it does not concern labor unions, note that in Keller v. State Bar of California, 496

U.S. 1 (1990), the Supreme Court held that an integrated state Bar, which by statute is the

regulatory body for the legal profession in a state and requires the payment of mandatory dues by

its members, is analogous to a union. Therefore, according to the Court, using mandatory dues to

fund political and ideological activities, where such expenditures are not necessarily and

487 U.S. 735 (1988).

Codified at 29 U.S.C. § 158(a)(3).

Beck, supra, at 751-54, 762-63.

500 U.S. 507, 522 (1991).

Exec. Order No. 12800, April 13, 1992, Notification of Employee Rights Concerning Payment of Union Dues or

Fees, 1992 U.S.C.C.A.N. B 22.

Exec. Order No. 12836, Feb. 1, 1993, Revocation of Certain Executive Orders Concerning Federal Contracting,

1993 U.S.C.C.A.N. B 24.

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reasonably incurred for the purpose of regulating the legal profession or improving the quality of

the legal services available to the people of the State, the Bar violated the integrated Bar

members’ First Amendment rights.

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Generally, political activities by labor unions in federal elections are prohibited.7 First, the Labor

Management Relations Act of 1947 prohibited labor union contributions to federal election

campaigns.8 Later, the Federal Election Campaign Act of 1971, as amended, (FECA), generally

continued this broad prohibition of labor union activities and funds in federal elections. However,

the FECA provided for three broad exemptions to this general prohibition of labor union political

activities in federal elections: (1) communications by a labor organization directed at its members

or their families on any subject: (2) non-partisan voter registration and get-out-the-vote activities

by a labor organization which are directed to its members or their families: and (3) the

establishment and administration of a political action committee or separate segregated fund

(commonly known as a PAC) for the purpose of the solicitation of contributions to such fund for

political purposes.9 Generally, any other type of political activity by labor unions in federal

elections is prohibited under the FECA, and labor union contributions and expenditures

concerning federal elections outside these exceptions are prohibited.

Various advisory opinions of the Federal Election Commission (FEC) have further clarified the

proper roles of labor unions in federal elections. For example, according to the FEC: a teacher’s

union could pay for the expenses of interns working in a Member of Congress’ mobile office as

long as their activities were non-political and exclusively related to the performance of the

Member’s official duties;10 a labor union could circumvent political contribution requirements if

it bought voter poll results from a candidate’s campaign committee;11 a labor organization could

not pay for travel and living expenses of its members who were serving as delegates to a national

nominating convention;12 funds received by a labor PAC for the sale of membership lists would

be treated as a contribution to the PAC;13 a labor union’s PAC funds could be used to pay the

expenses of lobbying activities conducted by labor union officials;14 a labor union’s contributions

to state and local candidates should specify that such funds cannot be used for federal

candidates;15 and a labor union PAC can solicit employees of subsidiary corporations for

contributions when the corporate PAC solicits such employees even though the employees are not

union members and the subsidiary corporation is not subject to a union contract.16

2 U.S.C. § 441b(a) (prohibiting contributions and expenditures by labor organizations).

Ch. 120, Tit. III, § 304, 61 Stat. 136, 159 (1947) (Now codified at 2 U.S.C. § 441b(a)).

2 U.S.C. § 441b(b)(2).

FEC Advisory Opinion No. 1979-25, June 19, 1979.

FEC Advisory Opinion No. 1980-19, March 14, 1980.

FEC Advisory Opinion No. 1980-64, July 9, 1980.

FEC Advisory Opinion No. 1981-7, March 9, 1981.

FEC Advisory Opinion No. 1983-4, Feb. 18, 1983.

FEC Advisory Opinion No. 1988-18, May 20, 1988.

FEC Advisory Opinion No. 1990-25, Dec. 14, 1990.

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FEC regulations also address the scope of a labor organization’s participation in federal elections.

Most notably, the regulations restrict those labor union communications directed to the general

public and to union participation in voter registration and get-out-the vote-drives from containing

express advocacy17 and prohibit coordination with any candidate or political party. The revised

regulations permit a labor organization to make registration and get-out-the-vote (GOTV)

communications to the general public if such communications: (1) do not expressly advocate the

election or defeat of a clearly identified candidate or candidates of a clearly identified political

party or (2) are not prepared or distributed with the coordination of a candidate or political party

(will subsequently be referred to as “coordinated” or “coordination”).18 A labor union may also

distribute to the general public, official registration and voting information and forms and

absentee ballots (if permitted by applicable State law) provided that such distributions do not

contain express advocacy and are not coordinated.19 A labor organization may donate funds to

State or local government agencies to help defray the costs of printing and distributing these

materials.20 Moreover, a labor organization may also prepare and distribute to the general public

the voting records of Members of Congress and voter guides, provided that the these materials do

not contain express advocacy and that there was no coordination involved.21

FEC regulations also permit a labor organization to support or conduct voter registration or

GOTV drives aimed both at employees outside its restricted class22 and the general public,

provided that: (1) the labor organization does not expressly advocate the election or defeat of a

clearly identified candidate, or candidates of a clearly identified political party; (2) the labor

organization does not coordinate with any candidate or political party; (3) the services are not

primarily directed at individuals favored by the labor organization; (4) the services are made

without regard to the voter’s political preference; (5) the workers conducting such services are not

paid only to register or transport voters supporting one or more particular candidates or political

party; and (6) at the time these services are provided, the labor organization notifies, in writing,

those receiving information or assistance regarding registration or voting of the availability of

these services without regard to a potential voter’s political preference.23 Finally, a labor

organization may donate funds to qualified nonprofit organizations to stage candidate debates.24

Various federal court decisions have determined the legality of certain types of labor union

activities involving federal elections. For example, in the 1957 decision United States v. United

Automobile Workers, the Supreme Court held that labor union expenditures, in connection with a

federal election, would be prohibited to the extent that such activity amounted to electioneering

Expressly advocating is defined as any communication: (1) which uses specific phrases, such as “vote for” or “vote

against,” in order to urge the election or defeat of a clearly identified candidate; or (2) which a reasonable person would

interpret as advocating the election or defeat of a clearly identified candidate. 11 C.F.R. §100.22. Courts are currently

at odds over the second factor of this definition. See FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), cert. denied, 484

U.S. 850 (1987), Maine Right to Life Committee v. FEC, 914 F.Supp. 8 (D. Maine 1996), aff’d 98 F.3d 1 (1st. Cir.

1996).

11 C.F.R. § 114.4(c)(2).

11 C.F.R. § 114.4(c)(3).

Id.

11 C.F.R. § 114.4(4), (5).

A labor organization’s restricted class is its members and executive or administrative personnel, and their families.

11 C.F.R. § 114.1(j).

11 C.F.R. § 114.4(d).

11 C.F.R. § 114.4(f)(3).

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for a particular candidate or political party.25 The Court asserted that the legislative history of a

provision of the Federal Corrupt Practices Act, prohibiting labor union contributions and

expenditures in federal elections, would disallow the expenditure of union dues to pay for

commercial broadcasts that are designed to urge the public to elect a certain candidate or political

party.26

In United States v. Boyle, in 1973, the United States Court of Appeals for the District of Columbia

Circuit, in affirming the conviction of a labor union president for consenting to unlawful

contributions to federal candidates, held that there are compelling governmental reasons for

justifying the federal prohibition against labor union contributions and expenditures in federal

elections despite First Amendment free speech and association rights of the labor union.27 The

Court of Appeals in Boyle concluded that for a labor union disbursement to be illegal under

federal law, it must be shown that the labor organization: (1) made a contribution or an

expenditure, (2) in connection with a federal election, and (3) for the purpose of active

electioneering.28

In a 1972 Supreme Court decision in Pipefitters v. United States, reversing certain convictions of

labor union officers concerning the use of a political fund, the Court concluded that a legitimate

labor union political fund must be separate from the labor union in that there must be a strict

segregation of the political fund’s monies from the union’s dues and assessments.29 The Court

noted that, while former 18 U.S.C. § 610, which prohibited labor organizations from making

contributions or expenditures connected with a federal election, might be interpreted to prohibit

the use of union funds to establish and maintain a union political fund for the purposes of

soliciting and making political contributions in federal campaigns, the provision of the Federal

Election Campaign Act of 1971 allowing labor unions to establish separate segregated funds or

political action committees may have impliedly repealed Section 610.30

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The question frequently arises as to whether compulsory labor union dues may be used by a union

for political purposes and, if so, under what restrictions or conditions may such dues be used. In

order to understand that issue properly, it is necessary to understand the various types of union

security agreements between employers and labor unions that require employees to provide some

form of financial support to the unions as a condition of employment. One type of security

agreement is the so-called “closed shop” whereby the employer agrees to employ only members

in good standing with the union. This type of agreement was recognized by the National Labor

Relations Act of 1935 (NLRA), popularly known as the Wagner Act,31 but was later prohibited by

the Labor Management Relations Act of 1947.32

352 U.S. 567, 592 (1957).

352 U.S. at 585-87.

482 F.2d 755, 758 (D.C. Cir. 1973), cert. den. 414 U.S. 1076 (1973).

Id., 760.

407 U.S. 385, 414 (1972).

Id., 432.

See ch. 372, § 8(3), 49 Stat. 452 (1935). See Radio Officers Union v. NLRB, 347 U.S. 17, 41 (1954) holding that the

legislative history of the NLRA indicated that Congress intended the utilization of union security agreements to compel

(continued...)

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Another type of a union security agreement is the agency shop agreement whereby the employees

do not have to join the union or have full union membership in good standing within thirty days,

but must support the union by paying a sum of money equivalent to union dues in order to retain

employment.33 Most agency shop agreements provide for a service fee, which includes an

initiation fee as well as certain dues that are paid by full union members.

Another form of a union security agreement is the union shop, which does not condition

employment on union membership, but requires that employees join the union after a certain

grace period on the job and remain members during the term of the labor-management

agreement.34

A “maintenance of membership” clause in a union contract is another form of union security

which imposes no obligation to join the union, but requires that one remain a member once

voluntarily becoming one until the expiration of the collective bargaining agreement.35

Other less formal union security agreements are: (1) a dues-checkoff provision, (2) a fair-share

agreement, or (3) a hiring-hall provision. The dues-checkoff provision does not require anyone to

join a union or retain union membership, but simply requires that the employer shall deduct from

the salary of the union members their union dues and credit that amount to the union. A fair-share

agreement would require all employees to pay the prorated share of the union’s collective

bargaining and representational expenses, but not irrelevant expenses. The hiring-hall provision is

a device for job security in certain industries such as in the maritime and construction industries

whereby the union and the employer agree that the union-hall is to be the exclusive mode for job

referrals.36

In 1956, the Supreme Court in a unanimous opinion in Railway Employees’ Dept., A.F.L. v.

Hanson upheld the union shop provision of § 2, Eleventh of the Railway Labor Act, as

amended,37 which provided that notwithstanding the law of any state, a carrier and a labor

organization may make an agreement requiring all employees within a stated period of time to

become members of the labor organization provided that there is no discrimination against any

employee and provided further that membership is not denied or terminated for any reason other

than the non-payment of periodic union dues, fees, and assessments.38 The Court found that the

(...continued)

the payment of union dues and fees.

The Labor Management Relations Act of 1947 is popularly titled the Taft-Hartley Amendments of 1947. See ch.

120, § 101, 61 Stat. 140-141 (1947), amending § 8(3) of the NLRA and renumbering it § 8(a)(3). This section is

codified at 29 U.S.C. § 158(a)(3).

See generally, Joseph Jenkins, LABOR LAW, v. 2, § 4.9 (Cincinnati: W.H. Anderson Co., 1969).

Under the National Labor Relations Act, as amended, union shop agreements are permitted whereby employees

must obtain membership in the union within 30 days of being employed, or within 30 days after the effective date of

the agreement, whichever is later. See 29 U.S.C. § 158(a)(3). However, under the Railway Labor Act (RLA), the union

security requirements are substantially the same as in NLRA except that the period whereby employees are required to

join a union is 60 days rather than 30 days. See 45 U.S.C. §§ 151-158.

Robert Gorman, Labor Law, Unionization and Collective Bargaining, 641-42 (St. Paul: West Publishing Co., 1976).

Id., 642-43.

64 Stat. 1238, codified at 45 U.S.C. § 152, Eleventh.

351 U.S. 225, 228, 238 (1956).

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union shop provision of § 2, Eleventh was within the power of the Congress under the Commerce

Clause and did not violate either the First or the Fourteenth Amendments.39

The Hanson Court noted that it is argued that the union shop agreement forces employees into

ideological and political associations that violate their freedom of conscience, freedom of

association, and freedom of thought. However, the Court intimated that if the union shop

arrangement were used to impose membership conditions, other than the payment of periodic

dues, initiation fees, and assessments, involving ideological or political associations to which

members may be opposed, it might present First Amendment problems.40

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Several years after the Supreme Court upheld the validity of union security agreements, it was

faced with the issue of whether a union may use funds, raised pursuant to a union-shop

agreement,41 to support candidates for public office against the wishes of dissenting employees.

The Court, in International Association of Machinists v. Street,42 found that such expenditures fall

outside of the scope of the reasons that justified union shop agreements.43 The Court asserted,

however, that any dissent by employees to the use of labor union funds for political causes is not

to be presumed, but must be made known by them to the labor union. Moreover, only those

employees who had identified themselves as being opposed to the political uses of their funds

would be entitled to relief.44

The Court was quick to note that this holding would not curtail the traditional political activities

of labor unions, but required only that labor unions must not support those activities against the

expressed wishes of dissenting employees.45 The Court also suggested the following two possible

remedies: (1) an injunction against expenditures for political causes opposed by complaining

employees, in the amount of union dues exacted from them in proportion to the union’s total

expenditures for political purposes to the union’s total budget, or (2) restitution to each dissenting

employee of the portion of his or her dues which was spent by the union for political purposes.46

In 1963, the Supreme Court in Railway Clerks v. Allen reaffirmed that, under § 2, Eleventh of the

Railway Labor Act, labor unions cannot, over an employee’s objection, use exacted funds to

support political activities which such employees oppose.47 The Allen Court extended Street,

finding that “it would be impractical to require a dissenting employee to allege and prove each

Id., 238.

Id., 236.

The union shop authorization in the Street case was pursuant to § 2, Eleventh of the Railway Labor Act (64 Stat.

1238, 45 U.S.C. § 152, Eleventh).

367 U.S. 740 (1961).

Id. at 767.

Id., 774.

Id., 770.

Id., 775.

373 U.S. 113, 118-19 (1963).

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distinct union political expenditure to which he objects,”48 but retained its requirement that such

opposition be made known to the union by each dissenting employee.

The Allen Court reaffirmed the remedies suggested by the Street Court, but offered suggestions of

its own. It suggested a practical decree which would order: (1) a refund to the dissenting

employee of a portion of the exacted dues in the same proportion that the political expenditures

bore to the total union expenditures, and (2) a future reduction of dues from the dissenting

employee by the same proportion.49 The Court placed the burden of determining the appropriate

proportions on the unions since they were in possession of the relevant materials.

In 1977, the Supreme Court, in Abood v. Detroit Board of Education, extended Street and Allen to

encompass dissenting non-union public employees,50 basing its decision, however, on

constitutional grounds that were not at issue in the prior cases. While a labor organization can

constitutionally expend funds for the expression of political and ideological views which are not

germane to its collective-bargaining activities, it can only finance such expenditures from the

dues of non-dissenting employees.51 Dissenting, non-union employees have a constitutional First

Amendment right to prevent a labor union from using a proportionate share of their service fees

for certain political and ideological activities unrelated to the union’s collective-bargaining

activities.52

The Abood Court noted that in determining a remedy, the objective of the Court would be to

devise a method to prevent the compulsory subsidization of political and ideological activities by

dissenting, non-union employees without restricting the union’s ability to require all employees to

pay for the union’s collective-bargaining activities. As it had previously in Street and Allen, the

Abood Court, in remanding the case for further proceedings, suggested remedies which included:

(1) a refund of that portion of the exacted dues in the proportion that union political expenditures

bore to the total union expenditures and (2) a reduction of future union dues to dissenting nonunion employees by the same proportion.

In Ellis v. Brotherhood of Railway Clerks, the Court was asked to determine the validity of a

rebate scheme, in which a labor union collected dues from employees and used them for certain

political and ideological activities, later paying a rebate to employees who dissented from the

political and ideological use of such dues.53 The Court noted that under the rebate scheme the

union obtains an involuntary loan for those political and ideological activities to which the

dissenting employees object.54 Since there were readily available acceptable alternatives to such

union borrowing, such as advance reduction of dues and/or interest-bearing accounts, the Court

found that a union cannot be allowed to use the dissenting employees’ funds even temporarily.

Thus, the Court found that although the rebate scheme reduces the statutory violation, it does not

eliminate the violation.55

Allen, supra, at 118.

Id., 122.

431 U.S. 209 (1977).

Id., 235-36.

Id., 234. Cf., Buckley v. Valeo, 424 U.S. 1, 22-23 (1976) in which the Supreme Court held that contributions to

organizations for the purpose of spreading a political message were protected by the First Amendment.

466 U.S. 435 (1984).

Id., 443.

Id., 444.

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In reaching its decision, the Court developed the following test for determining whether certain

activities must be paid for by dissenting employees subject to a labor-management agreement: “...

the test must be whether the challenged expenditures are necessarily or reasonably 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 such a standard dissenting employees

could be required to pay their fair share of: (1) the direct costs of negotiating a collective

bargaining contract; (2) the direct costs of administering such a contract; (3) the costs of settling

grievances and disputes; and (4) certain costs of activities or undertakings by a labor union to

implement or effectuate the duties of the labor union as the exclusive representative of the

employee.56 The Court found that dissenting employees could be charged for such union activities

as: (1) conventions which are essential to the labor union’s discharge of its duties as a collectivebargaining agent; (2) labor union social activities which are reasonably related to the union’s

collective bargaining activities; (3) labor union publications which report on labor-management

relations and collective bargaining activities; (4) organizing expenses for the purpose of making

the labor union stronger; and (5) litigation expenses incurred in negotiating and administering a

labor contract or in settling grievances and disputes.57

Two years later, in Chicago Teachers Union v. Hudson,58 the Court was presented with an issue

involving the procedural safeguards related to the collection of agency fees by a union. Under the

agency shop agreement between the union and the Chicago Board of Education, “proportionate

share payments” which approximated 95 percent of the regular union dues were deducted from

non-members’ paychecks.

The union established a three-stage procedure with the union’s administration to consider nonmembers’ objections to such deductions. The Court found that the union’s procedure failed to

minimize the risk that the exacted fees of non-union employees might be used for impermissible

ideological and political purposes.59 The Court concluded that this procedure was inadequate even

though the exacted funds of the non-members were placed in an escrow account. The procedure

contained three fundamental flaws: (1) failure to minimize the risk that non-union employees’

contributions might be temporarily used for political and ideological purposes; (2) failure to

provide sufficient information to non-members about the basis of their proportionate shares and

the method of determining their “advance reduction of dues;” (3) failure to provide a reasonably

prompt decision by an impartial arbitrator in determining whether or not a non-member’s dues

should be further reduced.60

Accordingly, the Supreme Court held that the constitutional requirements for the union’s

collection of agency fees from non-members would include: (1) an adequate explanation for the

basis of the fee; (2) a reasonably prompt opportunity to challenge the amount of the fee before an

impartial arbitrator; and (3) the establishment of an escrow fund for the amounts reasonably in

dispute while any challenges are pending. The Supreme Court remanded the case to the district

court for further proceedings consistent with such holdings.61

Id., 448.

Id., 448-53.

475 U.S. 292 (1986).

Id., 309.

Id., 304-07.

Id., 310.

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Like the prior decisions, the 1988 Supreme Court decision in Communications Workers of

America v. Beck held that § 8(a)(3) of the National Labor Relations Act does not permit a labor

union to spend funds exacted from dues-paying non-union employees on certain activities

unrelated to collective bargaining when those employees object to such expenditures.62 The Court

found that § 8(a)(3) of the National Labor Relations Act was like § 2, Eleventh of the Railway

Labor Act in that it authorized the exaction of only those dues which would be necessary to

“performing the duties of an exclusive [bargaining] representative of the employees in dealing

with the employer on labor-management issues.”63

In examining the legislative history of § 8(a)(3), the Court found that Congress wished to afford

non-members adequate protection by allowing the collection of only those fees which would be

necessary to finance collective bargaining activities. Even though Congress under § 8(a)(3) did

not in any way limit the uses for which the unions could expend such fees exacted from nonmembers, such silence was not to be interpreted to mean that there was congressional

acquiescence in the use of funds for activities that were unrelated to collective bargaining

activities.64 Congress’ purpose in providing for compulsory unionism was to force employees to

bear their fair share of the costs related to negotiations, administration of collective bargaining

agreements, and the settlement of disputes, but not to support union political activities which they

oppose. Under § 8(a)(3), Congress’ justification for the union shop would limit the union’s

expenditures which can be passed on to non-members only to those relating to labor-management

relations.

The Court concluded that it was not the intent of Congress under § 8(a)(3) of the National Labor

Relations Act to allow unions in agency shop agreements to have free rein to exact dues from

non-members in any amounts they please and then to spend them on activities which are

unrelated to collective bargaining activities. Beck, however, does not extend to union members.

The only way that such an employee may fall under the ruling in Beck is to first resign his union

membership and then object to the use of his exacted dues for political or other purposes

unrelated to collective bargaining.

The last case concerning the use of agency fees decided by the Supreme Court was Lehnert v.

Ferris Faculty Association.65 In Lehnert, the Court upheld the constitutionality of the Michigan

statute providing for agency-shop agreements in the public sector, and set forth a three-part test

for determining permissible non-political and non-ideological uses for the service fee that nonmembers are required to pay the unions for their services as sole collective bargaining agent for

all employees. The Michigan statute applied to faculty members of Ferris State College, a public

educational institution, who are represented by the Ferris Faculty Association (FFA), a local

bargaining unit affiliated with the Michigan Education Association (MEA) and the National

Education Association (NEA). The non-union faculty brought suit to challenge certain uses of the

service fees which they were compelled to pay the FFA and which were equivalent to the amount

of dues required of a union member. They claimed that the use of fees for purposes other than the

negotiation and administration of the collective bargaining agreement was in violation of their

rights under the First and Fourteenth Amendments of the Constitution.

487 U.S. 735 (1988).

Id., 752, quoting Ellis v. Railway Clerks, 466 U.S. at 447-48.

Id., 751-54.

500 U.S. 507 (1991).

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The Supreme Court established a test, derived from the preceding line of cases, for determining

whether a particular expenditure of union funds could be charged to non-member employees.

Chargeable uses must: (1) be germane to collective bargaining activities; (2) be justified by the

governmental interest in the maintenance of labor peace and the prevention of “free riders” who

benefit from the union’s collective bargaining activities without contributing to the costs of such

activities; and (3) not add significantly to the burdening of free speech inherent in the existence of

an agency or union shop.66 The Court also rejected the petitioners’ contentions that they could

only be charged for collective bargaining activities undertaken directly for their local unit and that

there must be a direct link between an activity and a tangible benefit to the local unit.67

Four activities were found by the Supreme Court to be chargeable to the non-members. First,

non-members should subsidize NEA program expenditures for collective-bargaining services

provided in states other than Michigan and reportage of such activities in the MEA publication,

the Teacher’s Voice. Second, non-members may be charged for the reportage of general

information in the Teacher’s Voice, such as news about teaching and education generally,

professional development, unemployment, job opportunities, MEA award programs, and other

matters that are neither public nor political, benefit all, and do not additionally burden First

Amendment rights.68 Third, non-members may be charged for the cost of participation by localunit delegates in the NEA and MEA conventions and the Coordinating Council meeting. And

finally, strike preparations are chargeable to non-members, even where the contemplated strike

would be illegal under state law if it actually occurred, because the strike preparations constitute

part of collective bargaining strategy and do not additionally burden First Amendment rights.69

The Supreme Court also ruled that four other uses may not be charged constitutionally to the nonmembers.70 First, lobbying other than for ratification and implementation of the collective

bargaining agreement is not chargeable to non-members.71 Second, a union program aimed at

securing funds for public education in Michigan and reportage on this program in the Teacher’s

Voice were not chargeable to non-members72 because they were public-relations and lobbyingtype activities unrelated to ratification and implementation of the collective-bargaining

agreement. Third, litigation that does not concern the local bargaining unit and reportage of such

litigation in union publications may not be supported by funds from non-members.73 Finally,

public relations activities of the local unit which are designed to improve the image of the

teaching profession may not be charged to non-members.74

500 U.S. at 519.

500 U.S. at 522-24.

500 U.S. at 529.

500 U.S. at 530-32.

Although a majority of the Court agreed on the judgments enumerated in the opinion with regard to whether a use

could be charged to non-members, several opinions used different analyses to arrive at the same conclusion. The

rationale given in the text above is that of Justice Blackmun, joined by Chief Justice Rehnquist and Justices White and

Stevens.

500 U.S. 519-22, 559-60.

500 U.S. at 527, 559-60.

500 U.S. at 528, 555 & 560.

500 U.S. at 528-9, 559.

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(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

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