Wednesday, January 21, 2009

A Union Win in the Locke Case

Supreme_court The Supreme Court has just issued its decision in Locke v. Karass (see here for our description of the case and here for our take on the oral argument).  Although I suspected that the union may win this one, I didn't anticipate a unanimous win, with an added concurrence by three justices.  I haven't had time to read the full decision--the price of delivering breaking news--but here are some of the relevant portions of the Court's syllabus:

Under this Court’s precedent, the First Amendment permits a local union to charge nonmembers for national litigation expenses as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities, and (2) the charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place.

(a) Prior decisions frame the question at issue.  The Court has long held that the First Amendment permits local unions designated as the exclusive bargaining representatives for certain employees to charge nonmember employees a service fee as a condition of their continued employment. With respect to litigation expenses, the Court also held that a local could charge nonmembers for expenses of litigation normally conducted by an exclusive representative, including litigation incidental to collective bargaining, but said (in language that the petitioners here emphasize) that litigation expenses “not having such connection with the bargaining unit are not to be charged to objecting employees.” Ellis v. Railway Clerks. Later, the Court held, with respect to the chargeability of a local’s payment of an affiliation fee to a national, that the local “may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit.” Lehnert v. Ferris Faculty Assn. The Court added that the local unit need not “demonstrate a direct and tangible impact upon the dissenting employee’s unit,” although there must be “some indication that the payment [say, to the national] is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” However, the Lehnert Court split into three irreconcilable factions on the subject here at issue, payment for national litigation.

(b) Because Lehnert failed to find a majority as to the chargeability of national litigation expenses, the lower courts have been uncertain about the matter. Having examined the question further, however, the Court now believes that, consistent with its precedent, costs of such litigation are chargeable provided the litigation meets the relevant standards for charging other national expenditures that the Lehnert majority enunciated [which are stated in the first paragraph of this syllabus]. . . . 

(c) Applying Lehnert’sstandard to the national litigation expenses at issue demonstrates that they are both appropriately related to collective bargaining activities and reciprocal, and are therefore chargeable. . . .   

Justice Alito, joined by Chief Justice Roberts and Justice Scalia, had a brief concurrence that stressed that the meaning of "reciprocal in nature" is still an open question.  Although unions don't have a free pass under Locke, I imagined that they're thrilled not have lost all extra-unit expenses.  The next step, of course, is to see how this plays out in future cases.

Hat Tip:  Paul Secunda


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Not a surprising result, I don't think. I continue to be surprised, though, by the number of agency-fee cases that the Supreme Court decides. While I haven't actually computed the number, I would guess that in the last 20 years (since _Beck_), the percentage of Supreme Court labor law cases that have involved agency fees has been remarkably high.

Posted by: Joseph Slater | Jan 22, 2009 6:53:40 AM

While not pleased with this outcome, I suppose I should say "Thank you," JS.

And it's only not surprising if you ignore the categorical rule stated in Ellis.

Posted by: James Yougn | Jan 22, 2009 11:26:56 AM

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