Lead Opinion
delivered the opinion of the Court.
The
In this case, a local union charges nonmembers a service fee that (among other things) reflects an affiliation fee that the local union pays to its national union organization. We focus upon one portion of that fee, a portion that the national union
I
Maine has designated the Maine State Employees Association (the local union) as the exclusive bargaining agent for certain executive branch employees. A collective-bargaining agreement between Maine and the local requires nonmember employees whom the union represents to pay the local union a “service fee.” And that service fee equals that portion of ordinary union dues that is related to ordinary representational activities, e. g., collective-bargaining or contract administration activities. In calculating the fee, the union starts with ordinary union dues and subtracts a sum representing the pro rata cost of nonchargeable union activities such as politicаl, public relations, or lobbying activities.
The service fee includes a charge that represents the affiliation fee the local pays to its national union, the Service Employees International Union. The included charge takes account of the affiliation fee, however, only insofar as the fee helps to pay for the national’s activities that are of a chargeable kind, such as collective-bargaining or contract administration activities. The loсal does not charge nonmembers for the portion of the affiliation fee that helps pay for the national’s activities of a kind that would not normally be chargeable, such as political, public relations, or lobbying activities.
The local includes in the chargeable portion of the affiliation fee an amount that helps the national pay for litigation activities, some of which do not directly benefit Maine’s state employees’ local but rather directly benefit othеr locals or the national organization itself. (For purposes of simplicity, we shall call all this extraunit litigation “national litigation.”) As is true of all other parts of the affiliation fee, the local’s charge to nonmembers reflects these national litigation costs only insofar as the national litigation concerns activities that are of a chargeable kind. The local does not charge nonmembers for the portion of national litigation costs that concerns aсtivities of a kind that would not normally be chargeable, such as political, public relations, or lobbying activities.
Numbers may help illustrate the scope of the issue. In 2005, the full service fee the local charged nonmembers amounted to about 49% of a member's ordinary union dues. (The petitioners here, beneficiaries of grandfathering rules, paid a half fee, amounting to about 24.5% of a member’s fee.) The full fee for employees like the petitioners would have amounted to abоut $9.70 per month. About $1.34 per month' of that $9.70 reflected a pro rata share of the portion of the national affiliation fee that the local believed was chargeable. The portion of the $1.34 per month affiliation fee charge that represented national litigation costs — the cost here at issue — amounted to considerably less.
Although the amount at issue per nonmember may be small, nonmembers believed
II
Prior decisions of this Court frame the question before us. In Hanson, Street, and Abood, the Court 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 condition of their continued employment. 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 under that precedent, the local can charge nonmembers for activities more directly related to collective bargaining. In such instances, the Court has determined that the First Amendment burdens accompanying the payment requirement are justified by the government’s interest in preventing freeriding by nonmembers who benefit from the union’s collective-bargaining activities and in maintaining peaceful labor relations. Street,
In Abood, the Court explained the basis for a First Amendment challenge to service fees as follows: “To be required to help finance the union as a collective-bargaining agent might well be thought ... to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.”
In Ellis and Lehnert, the Court refined the general First Amendment principle. In particular, it refined the boundaries of
Applying this standard, the Ellis Court examined the particular service fee charges challenged in that case. The Court held that the local union could charge nonmembers for the costs of a national convention, id., at 448-449; for the costs of social activities, id., at 449-450; and for the costs of those portions of publications nоt devoted to political causes, id., at 450-451. Convention expenses are chargeable, the Court explained, because, if a local union is to function effectively, “it must maintain its corporate or associational existence.” Id., at 448.
The Court also held that the local union could charge nonmembers for litigation expenses incidental to the local union’s negotiation or administration of a collective-bargaining agreement, fair representation litigation, jurisdictional disputes, or other litigation normally conducted by an exclusive representative. Id., at 453. But the Court then said (in language that the petitioners here emphasize) that “expenses of litigation not having such a connection with the bargaining unit are not to be charged to objecting employees.” Ibid, (emphasis added).
In 1991, the Court in Lehnert again described when an expense is chargeable. The Court said that a chargeable expenditure must bear an appropriate relation to collective-bаrgaining activity.
The Court divided five to four on the general affiliation fee matter. The majority of the Court rejеcted the nonmembers’
The Court then held that “a local bargaining representative 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.” Id., at 524 (emphasis added). Of particular relevance here, the Court added that the local unit need not “demonstrate a direct and tangible impact upon the dissenting employee’s unit.” Nonetheless, it said, there must be “some indiсation that the payment [say, to the national affiliate] 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.” Ibid.
Finally, the Lehnert Court turned to the subject now before us, that of payment for national litigation. On this point, the Court split into three irreconcilable factions. A plurality of four wrote that, even though the union was “clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit,” it nonetheless found “extraunit litigation to be more akin to lobbying in both kind and effect.” Id., at 528. The plurality added that litigation is often “expressive.” It concluded that “[w]hen unrelated to an objecting employee’s unit, such activities are not germane to the union’s duties as exclusive bargaining representative.” Ibid.
The Member of the Court who provided the fifth vote for the other portions of the Court’s opinion dissented from the part of the opinion on national litigation. Justice Marshall noted that the plurality’s discussion of national litigation costs was dicta because no such costs were at issue in the case. Id., at 544 (opinion concurring in part and dissenting in part). Nevertheless, Justice Marshall characterized any rule that found national litigation costs per se nonchargeable as “surely incorrect” and indicated such costs should be assessed under the plurality’s own test, i. e., whether the litigation bears an appropriate relation to collective bargaining. Id., at 546-547.
At the same time, four Members of the Court agreed with the nonmembers that including national costs in the service fee violates the First Amendment except when those costs pay for specific services “actually provided” to the local. Id., at 561 (Scalia, J., concurring in judgment in part and dissenting in part) (emphasis deleted). They thought that a local union cannot charge nonmembers for national activities unless there is a direct relationship between the expenses and “some tangible benefit to the dissenters’ bargaining unit.” Id., at 562 (internal quotation marks omitted). In other words, the dissent expressly rejected
Ill
As a result of the Lehnert Court’s failure to find a majority as to the chargeability of national litigation expenses, the lower courts have been uncertain abоut the matter. Compare Otto,
We reach this conclusion in part because logic suggests that the same standard should apply to national litigation expenses as to other national expenses. We can find no significant difference between litigation activities and other national activities the cost of which this Court has found chargeable. We can find no sound basis for holding that national social activities, national convention activities, and activities involved in producing the nonpolitical portions of national union publications all are chargeable but national litigation activities are not. See Ellis,
The petitioners’ arguments to the contrary rest primarily upon thеir understanding of Ellis and Lehnert Ellis, we must concede, sets forth certain kinds of national litigation— for the most part directly related to a local union’s particular interests — as chargeable; but it then goes on to say, as we have earlier pointed out, supra, at 215, that “expenses of litigation not having such a connection with the bargaining unit are not to be charged to objecting employees.”
We must also concede that a plurality in Lehnert wrote that national litigation expenses were not chargeable “[wjhen unrelated to an objecting employee’s unit.”
Nor can one simply add together the four Lehnert dissenters and the four Members of the plurality in an effort to find a majority of Justices who hold the petitioners’ view. That is because the Lehnert majority, speaking for the Court, adopted a more liberal standard of chargeability than the standard embraced by the dissent. And the question here is whether that standard permits charging nonmembers for national litigation expenses. There was no majority agreement in Lehnert about the answer to this last mentioned question. The best we can do for the petitioners is to find Lehnert ambiguous on the point at issue.
IV
Applying Lehnert’s standard to the national litigation expenses here at issue, we find them chargeable. First, the kind of national litigation activity for which the local charges nonmembers concerns only those aspects of collective bargaining, contract administration, or other matters that the courts have held chargeable. Ellis, supra, at 446-447. The lower courts found (and the petitioners here do not dispute) that the local charges nonmembers only for those national litigation activities that, in respect to subject matter, “were comparable to those undertaken” by the local and which the local “deemed chargeable” in its calculation of the “service fee.”
Second, the location of the litigation activity is at the national (or extraunit), not the local, level. But, as we have just said (under Lehnert), activity at the national level is chargeable as long as the charges in question are “for services that may ultimately inure to the benefit of the members of the local union by virtue of their membеrship in the parent organization.” Ibid.
The Court of Appeals treated the litigation charge at issue as reciprocal in nature, and concluded the District Court must have done so as well. See
The record then leads us to find that the national litigation expenses before us are both appropriately related to collective bargaining and reciprocal. Consequently, consistent with our precedent, those expenses
It is so ordered.
Concurrence Opinion
with whom The Chief Justice and Justice Scalia join, concurring.
I join the opinion of the Court but write separately to note that our decision, as I understand it, does not reach the question of what “reciprocity” means. Petitioners have taken an all-or-nothing position, contending that nonmembers of a local may never be assessed for any portion of the national’s extraunit litigation expenses. See ante, at 212 (noting that petitioners “claimed that the First Amendment prohibits charging them for any portion of the service fee that represents what we have called ‘national litigation,’ i. e., litigation that does not directly benefit the local” (emphasis added)). The opinion correctly concludes, “as did the lower courts, that the existence of reciprocity is assumed by the parties and not here in dispute.” Ante this page.
Thus, this case does not require us to address what is meant by a charge being “reciprocal in nature,” or what showing is required to establish that services “‘may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.’ ” Ante, at 220 (quoting Lehnert v. Ferris Faculty Assn.,
In its brief as amicus curiae, the United States argues that a national union must bear the burden of proving that any expenditures charged to nonmembers of a local are made pursuant to a bona fide pooling arrangement. See Brief for United States 28-29. Once nonmembers object to a chаrge, the Government submits, the union must prove that the challenged expenditure was made pursuant to an arrangement that is akin to an insurance policy. See id., at 7. This is necessary, the Government contends, to ensure that a charge is in fact “reciprocal in nature.”
Because important First Amendment rights are at stake, the Government’s argument regarding the burden of establishing true reciprocity has considerable force. Nonetheless, since petitioners in this case did not raise the question whether the Maine State Employees Association’s pooling arrangement was bona fide, we need not reach that question today.