Locke v. Karass

territory not in Indian puted sites is af-

firmed; disputed as to the two Indian- sites,

owned the order is vacated and that

aspect of the case remanded so that the

order can be amended in accordance with decision; and as to the EPA’s asser- of authority respect to review of permits, premature

state the matter is parties

we decline to decide it. All will

bear their own costs on these consolidated

petitions for review.

It is so ordered. LOCKE, al., Plaintiffs,

Daniel B. et

Appellants, KARASS, Controller; A.

Edward State Employees Association,

Maine State al., Defendants,

SEIU Local et

Appellees.

No. 06-1747. Appeals,

United States Court of

First Circuit.

Heard Nov. 2006.

Decided Aug. Stephen C. Young, with whom

W. James Firm Whiting Law Whiting and brief, appellants. on Alexander, whom Jere- Robert W. Kaiser, Bredhoff & miah Collins and brief, appellees. PLLC were on LYNCH, Judge, Before Circuit CAMPBELL, Judge, and Senior Circuit LIPEZ, Judge. Circuit LIPEZ, Judge. Circuit question significant This case raises union, may First Amendment: under the functioning as the exclusive employees, agent charge for certain state litigation expenses in- nonmembers for affiliate, if that liti- curred its national substantively related bar- gation funded process and is gaining Two other circuits pooling arrangement? affirmative; one responded in has have reading of negative. in the Our answered most recent decision Court’s subject reply us to on this leads that “extra-unit affirmative and hold to nonmembers tion” of, by, entity a union litigation” refers behalf term 1. The "extra-unit “germaneness it agreement, where satisfies test” provide must certain admin- generally applies to other istrative services for all employ- of these ees, regardless Faculty sources.2 See Lehnert v. Ferris of whether elect to join result, the union. As a MSEA is (1991). (also entitled to receive a L.Ed.2d 572 We therefore affirm “service fee” fee”) known as an “agency entry summary judg- the district court’s from those employees nonmember state whom it against rep- ment for the union the non- and resents.3 The state negotiated and MSEA employees. member

a new collective bargaining agreement I. 2005, which included a provision requiring all employees nonmember begin to paying Background A. Factual this service fee as of July 2005. The parties summary judg- Both moved for service fee is equal intended to be below; ment none of the material facts are amount of union dues minus those ex- in dispute. penses not related to provision of col- Employees Maine State Association bargaining lective and contract administra- (“MSEA”) representing words, is union state tion services.4 In other MSEA is workers, designated by and has been permitted to charge employ- nonmember state as the bargaining agent exclusive ees their expenditures share of all related employees certain of its executive branch. to its services as the bargaining exclusive Under bargaining agent;5 MSEA’s collective those MSEA expenditures that represents agreement other than the local which the non- requiring employees that all be- employees. may encompass litiga- member It come members of the union. Id. by undertaken other local units or 4. The term state or "contract administration national affiliate. services” refers to all services undertaken the union Although carry obligations the Lehnert Court did not define to out its under the collec- “pooled bargaining agreement. resources’’ nor the related terms tive These services in- "pooling arrangement” settling or disputes, processing grievances, “affiliation rela- clude tionship,” we use all of administering agreement, negotiating those terms to refer to agreement agreement, an between a local and a union other activities that are union, by required by state or national closely which the local or related to the union’s money representative contributes to the state or national bargaining role as under the union, understanding agreement. with the Throughout opinion, that the latter when services, provide personnel, will we refer to related to collective bar- gaining, sources to the local unit when that local needs we include contract administration them. concept bargaining. within the of collective "agency shop” arrange- 3. This is "chargeable” called 5. We use the term to refer to 'agency shop' agreement general- ment. "An may those union be in- ly provides employees that while pro are not re- cluded within the nonmembers’ rata union, quired join required to are bargaining share of the costs of collective pay equal the union an amount to union contract administration. The costs of activi- Against Illegal Pilots dues.” Dues v. Air Line ties to which nonmembers cannot be com- (10th contribute, pelled Pilots political 938 F.2d 1126 n. 1 such as or ideo- Cir.1991). Although actions, undisputed logical expressions it is that the are termed (and appellant-employees in "nonchargeable.” this case are not Both terms refer to wheth- be) required pay cannot full amount of er a cost be included in the dues, membership arrangement percentage union's calculation of the “agency shop.” nonetheless referred membership to as an dues that correlates to collective and, therefore, arrangement bargaining A related activity, is referred to as the that can shop”: shop "union a union describes an to nonmembers. in its calculation included MSEA and contract not related are of liti- those chargeable expenditures costs campaign administration, political such as SEIU) that was (by itself gation both only to provided or benefits donations This bargaining. to collective germane the non- members, “charged” to cannot be contributed, meant members.6 fees, through their service some to all non- initially notices sent MSEA specifically undertaken was not tion that April and June member unit, rather own but for their fee service description providing by or on behalf of was conducted July it was calculated. and how affiliate, national sometimes units or the notice, accom- a superseding sent MSEA general Included within this other states. (and finan- updated) by additional panied were the salaries category expenditures of July calculat- The notice cial information. pro- lawyers, and other costs of SEIU’s fee based on MSEA’s ed the service bargaining units to viding legal services year for which most recent year, the fiscal country. Costs throughout July no- In the was available. such data to bar- that was not related collective tion April and tice, to the earlier compared however, in the not included were gaining, classify all of notices, opted to MSEA June nonmem- to MSEA’s service assessed fees noncharge- organizing expenditures as its bers. able; public such as relations activities 49.13% July notice stated that MSEA’s noncharge- lobbying also classified as were budget in its expenditures of the able. nonmembers; there- chargeable to were fore, charged to nonmem- the service fee the affilia- include expenditures MSEA’s the dues that members 49.13% of fee, pays to bers was note that supra see to an- In addition pay. required Un- were International Employees the Service fee, the of the service nouncing the amount (“SEIU”) re- maintain its ion affiliation extensive additional July notice contained MSEA’s organization. lationship with information, from such as: affidavit included informa- July also financial notice explaining Finance Director of chargeable MSEA’s classified as tion for SEIU and fee, of all a statement the calculation of the fee that of its affiliation proportion categories into expenses classified on MSEA expenditures represented SEIU’s an audi- words, nonchargeable, chargeable all of In activities. other chargeable chargeable on the statement comparable report tor’s that were of SEIU’s an inde- non-chargeable expenses, and MSEA, and which and undertaken those most report auditor’s on SEIU’s pendent calcula- chargeable in the deemed MSEA (2003) on financial statement fee, in the recent tion of the service included expenses. nonchargeable chargeable proportion of MSEA’s calculation July provided notice also charged to The fee that could be affiliation chal- they could on how with information nonmembers. date, had "grandfathered” nonmembers agreement these collective 6. MSEA's all non- pay service fee as same provides that the state those with 2, 2003, Although provision affected this July members. prior to who were hired MSEA, paid by plaintiffs of the fee join size would be actual elected not to who (who grandfathering covered fee all ''grandfathered” service are into current Therefore, clause), provision this into we do not factor non- arrangement. group the full fee now only decision because service pay half of the our required to members applies employees. all After that fee June 2006. service if lenge disagreed ing the service fee nonmember service fees an escrow expenditure pending allocations de- account the ruling from the im- arbitrator,” partial scribed within it. The notice informed there is “no constitu- if any nonmembers that nonmembers chal- tional violation.” As the court explained: calculations, lenged the fee amount or all “the impartial use of an arbitrator and paid by nonmembers placed escrowing objectors’ fees would be pending fees in an interest-bearing escrow account until resolution of complaint is sufficient to complete. safeguard arbitration was the nonmembers’ constitutional rights” under precedent.7 challenge Some nonmembers did service fee and an arbitration appeal, was sched- On the nonmember employees objections. First, uled for all only arbitration raise two issues.8 they claim place took December and the arbi- SEIU’s in May up- trator issued a decision lated to or on behalf of other bargaining (also holding MSEA’s service fee calculation. litigation” units known as “extra-unit notice, paid by expenses) accord with the all fees chargeable are not to nonmem- nonmembers were held in until af- escrow bers under the First Amendment because ter the arbitrator’s decision an- “the State of Maine has no ‘compelling nounced. state interest’ in far-flung litiga- SEIU’s Second, tion activities nationwide.” ap- Background B. Procedural pellants claim that the “district court erred when it held that imposes the constitution process Before the arbitration was com- obligation no adequate to calculate an ad- plete, twenty appellant-plaintiffs vance reduction of the fee.” this case filed suit the District of 1983, § 42 seeking Maine under U.S.C. II. status, injunctive class action and declara- relief, tory damages, and restitution. The changea- The first issue this case—the for a employees preliminary bility then moved of extra-unit that is related injunction, as bargaining subject well as class certification. to collective and that is hearing injunc- After a on the preliminary pooling arrangement requires to a tous — motion, Supreme the district court denied it. examine a series of Court deci- Following discovery, the close of uncertainty. both sions and to resolve an area of parties summary judgment. Although moved for Supreme none of the Court’s granted The district summary judg- opinions squarely court has addressed the issue defendants, ease, holding presented explain ment that “the in this we below inclusion of the cost of constitutionality our view that of extra-[unit] tion does not violate charging Plaintiffs’ constitu- costs to non- that, rights.” tional The court employees also held member turns on the same placed object- “germaneness” because “the MSEA has all all applies test oth- court, 7. employees Appellants’ putative Before the district brief lists third issue: arguments, raised additional not at issue in holding whether the district court erred in appeal. points, this On these the district that the class certification issue was moot. court held that MSEA's notice to nonmem- agree Because we with the district court’s constitutionally adequate, bers was that non- entry summary judgment, we need not given adequate object members were time to reach this issue. fee, to the service and that the indemnifica- bargaining tion clause in MSEA's collective agreement was lawful. 54 non- whom [the and state offices Ferris federal Lehnert v. services under

er pro- opposed, and employees] member 507, 111 S.Ct. Faculty 500 U.S. and eco- political propagation mote the (1991). 1950, 114 L.Ed.2d doctrines, concepts ideologies nomic 744, disagreed.” Id. at [they] with which Doctrine Origins A. principles, these em- Given 81 S.Ct. 1784. thirty years, past the course of the Over union particular designate ployers who ad repeatedly Supreme Court has their agent for as the exclusive implications Amendment the First dressed require employees those cannot where shops” “agency shops,” or of “union financially support po- to subsidize payment, membership, or service fee the union. ideological litical or of continued as a condition required early note 3. The supra See employment. Education v. Detroit Board of B. Abood railroads and field dealt with cases 1977, in v. Detroit Board Abood Congress passed after employees, their Education, 431 U.S. Act that Railway Labor provision of (1977), considered a the Court L.Ed.2d working for a every employee required allowing govern Michigan statute support financial provide unit to shops.” The Su “agency create ments to representative exclusive question faced the thus preme Court See, e.g., Railway Employ for that unit. whether, the constitu degree, and to what Hanson, 225, 76 351 U.S. Dep’t. ees’ v. agency shop ar implications of the tional (1956); Machin L.Ed. 1112 by the nonmem were altered rangement Street, ists employees. The government role as bers’ (1961). upheld Those cases L.Ed.2d 1141 legislative that the same concluded Court provi constitutionality of the relevant underlay the state’s and Con purposes Railway Labor Act and con sions of the shop, agency of an gress’ endorsement Congress impinge could cluded that inter government that the same meaning free rights speech to free and employees’ in the two situations. were at stake ests by requiring payment their association 224-26, 1782. The Court Id. at 97 S.Ct. union, promote peace to a in order to dues explained: rep ful relations and efficient labor labor help finance the required To be 235-38, Hanson, at 351 U.S. resentation. might collective-bargaining agent aas Street, 714; at 76 S.Ct. therefore, to interfere thought, well be S.Ct. 1784. way employee’s freedom in some Street, Congress’s held that the Court the advancement of to associate for the statute permissible passing reasons for so, ideas, doing from as he or to refrain required or dues could be meant fees judgment clearly made sees fit. But the only insofar as those from nonmembers is that such inter- Hanson Street as justi- related to the union’s role constitutionally fees were ference as exists is of the collec- negotiator and administrator by legislative assessment fied Street, 367 bargaining agreement. shop tive of the union important contribution Thus, 768-69, estab- system at 81 S.Ct. 1784. of labor relations Amend- ‘The furtherance of by Congress. would be a violation of the First lished (or leeway some Congress permitted if railroads the common cause leaves ment long As forcibly leadership group. private employers) sector for the promote the cause which employees in order to act to collect funds from group together, justified bringing of candidates for campaigns “finance the the individual cannot withdraw his finan- cal ideological (i.e., or noncharge- merely cial support because he dis- expenses). 439-40, able Id. at agrees group’s strategy. with the If 1883. The Court held that “pure allowed, that were we would be revers- approach bate is inadequate.” Id. at case, ing the Hanson sub silentio.’ It explained that collection amount, of the full 222-23, dues and rebate of (quoting Id. 97 S.Ct. 1782 Street, funds, improperly collected 367 U.S. at was S.Ct. 1784 tanta- (footnote J., mount (Douglas, concurring) to an “involuntary omit- loan” ted)). nonmembers, also found that the same impermissible be- First Amendment in speech interests other, cause the union had less intrusive stake, regardless association were at of ways to collect the service fee. Id. whether the employees nonmember were Although S.Ct. 1883. Ellis did not employed by a government state or a pri- prescribe a particular method for collection 231-32, entity. vate Id. at 97 S.Ct. 1782. of service fees from employ- nonmember Therefore, majority the Abood endorsed ees, (without it suggested requiring) that the same basic constitutional framework advance reduction of fees and interest- government employees previ- as had bearing escrow might accounts be used to ously adopted been in Hanson and Street. problem. resolve the 225-26, 235-36, 97 S.Ct. 1782. Having procedure declared invalid the Railway C. Ellis Brotherhood funds, which this union collected its Clerks the Court then addressed the challenged by After Court held in Street In evaluating nonmembers. expen- these employees’ Abood nonmember ditures, the Court recognized that service fees could not be used to support agency-shop arrangement inherently en- political ideological expression, the focus tailed some “significant impingement on implementation shifted to First rights” Amendment because the general principles articulated those were, nonmember for the sake cases. A subsequent series of cases re- peaceful relations, of being labor required quired the key Court to determine two “support to financially organization an questions: what sorts of union activities (and principles with whose [they] and demands qualify political ideological or may 455, disagree.” Id. at 104 chargeable therefore are not to S.Ct. 1883. nonmem- bers), The recognized Court nonetheless procedures and what a must union infringement this adopt to ensure that of constitutional rights nonmembers’ P permitted, by had been prior its decisions In Ellis v. Railway Brotherhood of Street, Hanson because of the Clerks, 435, 1883, 466 U.S. 104 S.Ct. strong governmental interests at stake. (1984), L.Ed.2d 428 employees nonmember preliminary With those considerations in union, sued a claiming that its method of mind, it per- articulated the standard for fee collection was unconstitutional. The missible charges to nonmembers as union collected the same amount from all employees, whether the including dues-paying challenged expenditures mem- are necessarily bers and fee-paying reasonably At or nonmembers. the incurred for year, end of a purpose fiscal it would the of performing then rebate a the duties of portion nonmembers, of the fee to the an representative exclusive of the em- returning the amount of ployees dealing the fee that corre- employer with the on expenditures lated to the union’s politi- on labor-management issues. Under this unit. Extra-unit be standard, employees objecting definition, satisfy this tion, could not of not their fair share pay to compelled supra note 1. See standard. negotiating of only the costs direct collective-bargaining administering v. Hudson Chicago Union Teachers D. settling grievances of contract and Hudson, Teachers Union Chicago expenses of activi- also the disputes, but 89 L.Ed.2d normally reason- undertakings or ties or un- (1986), one the Court addressed effectu- implement to ably employed the Ellis deci- implement attempt to ion’s the union as exclusive of ate duties nonmember charged all The union sion. in the employees of the representative equal fee to 95% a service employees unit. bargaining members; the pro- required dues 1883. Pursuant at Id. union’s on the calculated portion was based standard, expenditures only those dur- chargeable expenditures un- related to arising from activities at year. Id. fiscal ing prior all duty representation ion’s informed all non- The union 1066. S.Ct. unit could be in the they required would members employees. to all they object could and that this amount pay at specific (i.e., the six One of fee “proportionate share” The calculation) in Ellis was costs. issue if did so within writing, held: first Id. thirty days payment. objection Once litigation incident expenses of raised, process would be- three-step the con- was administering negotiating and First, commit- the union’s executive gin. grievances and dis- settling tract or to If the objection. consider the tee would bargaining unit are in the putes arising objec- agree with the did not committee as a petitioners clearly chargeable tion, the issue to objector could appeal the ex- of the duties of normal incident if Finally, executive board. the union’s The same is representative. clusive unresolved, objection remained litigation aris- representation true of fair arbitrator, to be would select an president unit, jurisdictional dis- ing within the union, resolve the who paid by the would unions, any oth- and of putes objector prevailed who An issue. in the agencies or er before a rebate for these levels would receive unit em- that concerns courts amount, and future service all contested normally conducted and is ployees accordingly. reduced fees would be The ex- representative. the exclusive Hudson, therefore, The issue such having penses of union had taken sufficient the whether unit are the connection with “ ‘compulsory subsi- prevent precautions objecting employ- charged to not to be ” 302, Id. at ideological activity.’ dization of ees. Abood, at (quoting S.Ct. 453, 104 with 1883. Consistent Id. at 1782). 237, 97 S.Ct. (or of general definition relevance Ellis’ by observing Supreme began later The Court the would as Court “germaneness,” inter- government’s the it), again once focuses on describe peaceful labor rela- bar ests in efficient to a union’s collective that are related tions, permit enforce- sufficient duties, expenses charge while gaining shop policy, were agency ment an to be would also have able to nonmembers First Amend- render the great so as to process to the related employees by impartial ment interests of nonmember an decisionmaker” a after Therefore, it stated that un- employee irrelevant. nonmember objection. files an 307, must devise a means to collect the ions Id. at Summarizing S.Ct. 1883. conclusions, “carefully service fee which would be tai- its the Court held that infringement,” lored to minimize the requirements “constitutional for the Un- nonmember must given ion’s agency collection of fees include an enough adequate proce- information and adequate explanation of the basis for the fee, dural mechanisms to allow them to “iden- a reasonably prompt opportunity to tify impact of the governmental challenge action the amount of the fee an before decisionmaker, interests and to assert a impartial [their] merito- and an escrow rious First Amendment claim.” Id. at reasonably the amounts in dispute while 303, 97 S.Ct. 1782. challenges such are pending.” Id. at 104 S.Ct. 1883.9

The first held that the Court union’s fee collection was unconstitutional because it Faculty E. Lehnert v. Ferris Associa- functionally comparable pure was system rejected rebate that had been Faculty Lehnert v. Ferris Next, Ellis. Id. 97 S.Ct. 1782. 114 L.Ed.2d 572 held that Court the union’s method of (1991), addressed, the Court for the first (the making an advance reduction of dues time, chargeability “pooled ex- amount) 5% reduction from the full dues penses.” The defendant union Lehnert inadequate provide because it failed to was a local affiliate of both a state union nonmembers with sufficient information to (the Association, Michigan Education or them to they allow determine whether “MEA”) (the larger, and a national union object. 306-07, wished to Id. at Association, National Education emphasized The Court the un- “NEA”). paid It affiliation fees to the duty provide explanation ion had a NEA; fees, MEA along and the these how the advance reduction was calculated affiliates, paid by the fees all other local expenditure and some information. by were used the state and national unions 306-07, 104 n. S.Ct. 1883 & 18. The Court to support various activities at the state placing also held that the entire paid fee and national level. The affiliation fees also by nonmembers into an escrow account ensured the local unit’s access to the could not cure proce- otherwise defective (such MEA’s and NEA’s resources when the inadequate explanation dures (and unit needed them a correlative dispute pro- the fee or biased resolution cedure), availability of those resources to other lo- but that a must union escrow the need). cal units when were in reasonably dispute” pending “amounts any objections passed portion of its affiliation resolution of raised fees nonmembers, obligation nonmembers. on to counting 104 S.Ct. 1883. Finally, percentage the Court held that the union must affiliation fees within “provide reasonably prompt chargeable category for a expenditures. decision recently imposing requirement 9. The decided Daven state statute on un — port Washington Education U.S. operating agency shop agreements ions under -, 2372, (2007), 127 S.Ct. 168 L.Ed.2d 71 they that obtain affirmative consent from non procedural it which elaborated on the re spending members before those nonmembers' quirements previously articulated in Hudson. agency fees on election-related activities. Id. however, Davenport, is not relevant here be at 2379. There is no such issue in this case. permissibility it cause focused on the of a for the is assessed able to the local was calculated chargeable category That if it is even protection, unit’s bargaining total and NEA’s dividing the MEA’s by that expended on unit actually not expenditures expenditures those membership year. any particular The non- activities. “chargeable” made challenged plaintiffs Lehnert member non- 1950. Thus the Id. at S.Ct. fee, on the based amount of the service the “their could include service fees members’ in the expenditures of certain inclusion costs associated with rata pro share expenses. “chargeable” category activities of chargeable [the otherwise by reviewing began affiliates, if Lehnert Court even The and national state unit’s] deriving and from precedents for the performed the relevant not activities were those determining three-part employees’ test objecting them a benefit of the direct expenditure union Id. at bargaining whether unit.” “chargeable words, chargeable to nonmembers: the Court conclud- 1950. In other (1) to collec- ‘germane’ must be pooling activities or affiliation that the use of ed (2) justified by activity; be tive-bargaining that a requirement its arrangement, with interest policy vital government’s the affiliation fee to the pay an local union riders’; avoiding ‘free and peace union, and render labor would not or national state (3) burdening significantly charge- add were otherwise expenditures that (that in the allow- speech is, that is inherent col- substantively of free relevant to able agency shop.” ance of an the lo- non-germane to bargaining) lective 519, 111 1950.10 S.Ct. bargaining cal unit. nonmem- analyzed then

The cautioned, however, that The Court may claim “that be bers’ arrangements pooling permissibility activi- collective-bargaining those only for a local union grant “does not serve directly on behalf ties undertaken dollars expend dissenters’ carte blanche 522, 111 1950. unit.” Id. at S.Ct. their wholly bargaining unrelated activities from Hanson language It on the focused in their unit.” Id. charged to requiring therefore, Court, adopted differ Lehnert to collective “germane” germaneness than ent standard of ex- that such concluded While Ellis de by the Court. used Ellis “a direct rela- need not have penditures directly germane as those fined tionship” to the nonmembers’ bargaining pro to the local unit’s related satisfy germaneness in order to cess, Leh 466 U.S. at chargeability test. prong of having recognized germaneness nert 522-23, ex- 1950. The Court S.Ct. charged expen components: distinct two plained: (1) substantively related ditures must be (2) ser bargaining, to collective “for affiliation relation-

The essence ultimately ben inure to the parent will vices that ship is the notion that the of the local union eco- efit of members bring to bear its considerable often parent membership their nomic, virtue of political, informational organization,” is in need of when the local sources Thus, defined a lo- Consequently, part 1950. Lehnert them. broadly account of the nature to more to take fee contributes affiliation

cal’s relationships the pooling affiliation potentially avail- of pool of resources “Lehnert "chargeability or the test.” three-part as either the test” We refer to this test unit, through reciprocal pooling the such rela- on the characteristic of of resources rejected arrangement), specifically the tionships. litigation might ger- be notion that such majority a of the Justices Although “ultimately be of mane where would for evalu- general this standard agreed on use to” the unit. Id. some expenses, pooled ating chargeability per- agreement on the not reach did Marshall, in part who concurred Justice for ex- missibility charging part, separately wrote and dissented pooling litigation funded tra-unit litigation expressly about issue and majori- Blackmun’s arrangement. Justice paragraph noted that Justice Blackmun’s by four joined parts in some ty opinion, 544, 111 topic was dicta. Id. at Justices, five votes garner did not (“The [principal] opinion’s dis S.Ct. 1950 lit- discussing extra-unit paragraph for the costs is no litigation cussion of extra-unit controlling on that sub- and is not igation ... no such costs more than dicta since 510, 528, 111 S.Ct. 1950. ject. case.”) (Marshall, J., are at issue There, Blackmun said Justice dissenting part). concurring part and “that not concern litigation does costs Marshall also stated he would Justice unit” bargaining dissenting employees’ reject any against charging se rule per union’s “germane to the would not be litigation expenses, suggesting bargaining representa- as exclusive duties subject expenditures would be that such 528, 111 1950.11 Justice tive.” Id. at S.Ct. pooled test as other the same litiga- concluded that extra-unit Blackmun (and potentially resources thus would tion, nonmem- does not involve the 546-47, chargeable). Id. at 111 S.Ct. 1950.12 definition, categori- own unit was bers’ Scalia, joined by Finally, Justice Justices it does not cally germane not because (in O’Connor, Souter, Kennedy part), the union’s role as “concern” only charge- argued dissented and that the Id. He de- agent specific for that unit. arising perform- from able costs are those two-part germaneness apply clined to “statutory duties as ance of the union’s prescribed that he for other test agent.” Id. at exclusive relation- expenses (requiring substantive (Scalia, J., concurring in bargaining and a benefit conferred ship to proscribes the Amendment such assess- approach to extra-unit 11. Justice Blackmun’s public based on his view that such in the sector. ments omitted). political (internal analytically litigation was similar to citations ideological expressive activities. lobbying or it is Marshall observed that Justice that extra-unit is "more He stated effect,” entirely Justice Blackmun in- clear whether lobbying in both kind akin against per rule (plu- tended to endorse a se 111 S.Ct. 1950 expressive chargeability litigation or wheth- rality), “political and of extra-unit because of its nature,” possibility that id. He then concluded: er he intended to allow for the to non- could be some such Moreover, cover a di- 546-57, 111 S.Ct. 500 U.S. at members. bankruptcy pro- range verse of areas from J., (Marshall, part concurring employment ceedings to discrimination. indicated, part). we read dissenting in As objecting employee’s When unrelated to opinion adopting per Justice Blackmun’s unit, germane are not such activities against chargeability of extra-unit se rule bargaining rep- union’s duties as exclusive flexi- he intended a more costs. If the Court in Ellis deter- resentative. Just as RLA, articulation approach, Justice Blackmun's by the ble as informed mined that the Amendment, charging permit for extra-unit would prohibits the use of dis- First only circumstances. litigation, we hold in rare for extraunit senters’ fees by a national litigation conducted lated to part). in Justice Sca- dissenting part substantively affiliate, litigation is if the rejected “germaneness” the test lia process and is interest the argued governmental that the related to was problem through pooling arrangement. “free rider” preventing the funded statutory framework, union’s duties how- limited to the the provide Lehnert did words, riders. In other potential such free ever, analyzing question. the for only fees union could collect service the that it in those activities its involvement III. Id. at pursue. law to required Lehnert test to the applying Before 556-57, did 1950. Justice Scalia case, review some of the facts of this we however, that majority, agree with have other circuits which decisions from charged for the could be to nonmem- chargeability addressed statutorily required ser- providing costs of litigation in the costs of extra-unit bers of arrangement. Id. pooling vices that decisions light (“It ... would be at 111 S.Ct. 1950 have discussed. we charge [national- the cost appropriate actually provid- provided] services

affiliate Decisions A. Other Circuits’ itself, they since [the unit] ed to un- directly performance relate v. Air Against Illegal In Dues Pilots (10th duty. It would collective-bargaining ion’s 938 F.2d 1123 Line Pilots to nonunion appropriate charge Cir.1991) (“PAID ”), shortly also a case decided charged by NEA members an annual fee neverthe after the Tenth Circuit exchange contractually promised heavily analysis. in its relied on Ellis less NEA on availability (“ALPA”) of such services from The Air Line Pilots Association (ex- demand.”); at 111 S.Ct. 1950 id. nonmember United charge- resources are plaining associated Airlines for some of its costs they provide tangible benefit able where surrounding Continental with the bargaining unit and its bankruptcy proceedings. Airlines’ representative, because duties as exclusive costs 1127. ALPA claimed these “tangible having] ... [in there is a benefit suc properly chargeable were because its call, even expert consulting services litigation, which cess in the Continental used”). Jus- years when are not employees’ col related to Continental did not mention extra-unit liti- tice Scalia bargaining rights, generally would lective likely no gation specifically, most because union, thereby benefit strengthen the in Lehnert. charges such issue bargaining unit. Id. at 1129. the United (Marshall, J., con- 111 S.Ct. 1950 rejected argument Circuit The Tenth curring). applied “ger- the definition of because articulated in Ellis and con maneness” opinion, fractured Leh light of this that the Continental did cluded specific question did not resolve the nert not “concern” or “relate to” the United a union before us this case: whether bargaining unit. Id. at 1129-30.13 may charge expenses nonmembers for tion, particular litigation at upheld chargeability issue 13. The PAID court satisfy pooled expenses that case could not for contract administration bargaining. it did not benefit the local unit. 938 F.2d at 1128-29. test because Therefore, frankly whether the Id. at 1129. It is unclear the Tenth Circuit did not find litigation charges part arrangement problematic, at issue in PAID were pooling itself but concluded, arrangement, simply pooling or were in the context of of a in length adopted approach, Ellis. This con- quoted from Ellis PAID court PAID, only expenditures concluded that trast to that taken means that “benefitted” “directly concerned” or litigation through pool- extra-unit funded could be the ing arrangements chargeable will be when- (“In order for germane. substantively ever it involves collective bargain- to a expenses charged to be bargaining because the affiliation relation- unit, the litigation must concern ing ship provides required itself connection unit.”). There- members expenditure between the and the local unit. fore, court held that the “ALPA The Reese court examined the fractured objecting pilots United for ex- charge closely Lehnert decision found that the litigation incurred in on behalf of penses pooled general approach expenses en- bargaining unit” because the Continental by majority dorsed from that unit did not benefit United (i.e., that costs incurred approach ef- litigation. Id. at 1129. This pooling arrangements charged could be charging fectively prevents unions from germane if were to col- nonmembers litigation extra-unit bargaining) applied lective to extra-unit because, definition, litigation extra-unit litigation, as it did to other concern the directly will not involve or sources. Id. unit.14 nonmembers’ recently, Most the Third ad- Circuit later, the Circuit came years Four Sixth chargeability dressed the of extra-unit liti- applied to a different conclusion because gation Pennsylvania v. Edu- Otto State In legal a different standard. Reese (3d Cir.2003), cation 330 F.3d 125 (6th Columbus, 71 F.3d City of aligned itself with the Sixth Circuit. Cir.1995), that court held that the Lehnert Otto, employee-plain- In the nonmember liti- changeability applies test to extra-unit tiffs worked for a local school district and expenses gation expenses and that such required pay agency shop fees to are, therefore, chargeable to nonmembers the local and state education associations. they are shown to be related to where claimed, plaintiffs among things, other ultimately bargaining and “inure collective pooling ar- expense that the local unit’s (as pooling of the local unit to the benefit” rangement with the state association re- do). inevitably In other arrangements unconstitutional payment sulted their words, adopted the Reese court the defini- charges litigation. for extra-unit tion of articulated Third framed the rather than the narrower definition 128-29. The Circuit E.g., 938 F.2d at expenses that nonmembers were asked to de- to nonmembers. (without fray any specific (stating reassurance the extra-unit litigation directly relating future to their unit chargeable because the union costs were not units, creating funded would be involving “failed to show that necessary reciprocity the Lehnert that was plaintiffs’ Continental was related to the bar- pooling arrangements). approval Court's unit,” gaining thereby suggesting possibil- assume, however, given descrip- We the brief litigation might ity that other extra-unit calculating charge- ALPA’smethod of tion of chargeable relationship were if such a expenses, that the was funded able shown). suggestion an unre- This creates through pooling arrangement. “directly in PAID with the con- solved tension opin- language in the cerned” “benefitted” language 14. PAID does include some per approach to the ion which reflects a se permitting possibility some hints at extra-unit issues. litigation expenditures to be extra-unit Litigation way: a B. question before it this MSEA’s Extra-Unit “[WJhether Charges may charge non-members for their pro expenses rata share of that relate to summary granting judgment litigation and that were incurred on behalf MSEA, the district court held “as matter pursuant a cost- of an affiliate union of law that the inclusion of the cost of does not violate Plain sharing agreement.” Id. at 135. The rights.” tiffs’ constitutional Locke v. Ka court noted that the Lehnert decision had (D.Me.2006). s, 137, F.Supp.2d ras 425 agreed on how such extra-unit It cited the and decisions Sixth tion costs would fare under its definition of Circuits, Third that “[t]hose stated germaneness, meaning that there no circuit courts that have ruled on the issue guidance.” “definitive Id. constitutionally per have found that it is at 136-38. missible for unions to include extra-unit applied ger The the Lehnert litigation Otto court in expenses the service fees charged to nonmembers.” Id. at 146-47. particular maneness test to the extra-unit litigation costs that the local union had appellants that argue The the district charged to the nonmembers. It concluded give weight court failed to due to the expenditures provided that those a sort of Ellis, Supreme Court’s earlier decision in by ensuring insurance to the local unit “the expenses litiga that “[t]he stated having tion not a connection with the availability [] of resources for [future] [the bargaining unit are not collective-bargaining-related unit’s own] 453, objecting employees.” 466 at U.S. and, in litigation,” way, inuring that to the They 104 S.Ct. 1883. claim that this lan benefit of the local unit. Id. at 139. The guage dispositive is and bars the union expenditures ger court thus deemed charging from nonmembers for extra- mane to the local unit’s role as collective addition, unit litigation they costs. In cite bargaining agent. Id. Under the second Lehnert, opinion to Justice Blackmun’s in test, prong chargeability of the Lehnert Justices, representing four and its en the court said that “the free-rider concerns per prohibition dorsement of the Ellis se applicable pooled-expense to other ar charging litigation, for extra-unit rangements apply equal force to ex support U.S. at in tra-unit litigation expenditures.” Id. Fi argument. They their also contend that nally, test, prong under the third Colegio our decision Romero v. De Abo pooled court concluded that where the re Rico, gados De Puerto 204 F.3d being litigation sources are used for (1st Cir.2000), because, controlling here bargaining, relates to collective there they say, it charging holds that nonmem “ would be infringement ‘little additional for litigation, bers other than that conduct rights beyond First Amendment that al unit, ed or for the ” Ellis, ready accepted.’ Id. (quoting 466 is unconstitutional. 1883). Therefore, U.S. at response, argues MSEA that Ellis is the Third Circuit concluded that pooling not relevant to this case because it did not arrangements chargeability address the should be pooling treated like other ar sources, and its discussion of extra-unit rangements, chargeable with costs to non inapplicable is therefore long members so satisfied the challenges facts here. The union also ap- test, three-part including Lehnert the Leh Romero, pellants’ arguing reliance on nert germaneness. definition of its chargeability discussion of for extra- litigation expenses given without us tions to urges dicta.15 MSEA litigation was reciprocal contributions at a expectation of the Third reasoning adopt the three-part Circuits, that the finding later time.16 See also Sixth J., to extra-unit apply (Kennedy, concur- test should 111 S.Ct. 1950 Lehnert way applies in the same and dissent- ring judgment part in the arrangements. pooling no part) (noting all that Ellis “contains ing permis- of whether it would be discussion” that both with MSEA agree We charge unit to nonmem- sible for definition Lehnert’s bargaining-related bers applicable test are chargeability three-part un- “through sharing arrangement a cost Circuit, we believe Third Like the here. affiliate”). auspices of the More- der the of extra-unit chargeability over, litigation that was deemed non- of the Ellis intersection “lies defined chargeable specifically Ellis was F.3d holdings,” 330 Lehnert involving negotiation not “litigation can holds that Ellis decision griev- agreements or settlement that does not litigation charged not be 440, at 104 ances.” 466 U.S. S.Ct. 466 bargaining unit. their own “concern” Therefore, in import of the decision 453, 104 1883. While at S.Ct. U.S. Ellis, relying on a narrow definition of blush, suggests, at first in Ellis language by limited its factual back- germaneness, is for the only litigation by or that (i.e., arrange- funding a direct ground to can be unit involved bargaining ment). nonmembers, reading opin a closer holding. As more limited

ion reveals a Lehnert addressed different not con noted, Ellis court was Otto pooling arrangement— factual context—a arrangement, 330 pooling with a fronted ex pooled the reasons that explored only 136; to pertained at its decision F.3d litigation fall outside penditures for union mo of local the direct contribution (or in 500 U.S. at 523- rule articulated Ellis. by other units to efforts nies 24, way to recon- 111 S.Ct. 1950. The best affiliate) meaning contribu- a national by — pooling of a 15. Romero outside challenge certain ex tó extra-unit involved a to association, First, encompasses penditures by arrangement. the Puerto Rico bar the term lawyers are re sup all in Puerto Rico to which unit to to another local direct donations charge- quired pay We held that the to dues. by unit. Sec port litigation efforts that other Lehnert, test, at ability in 500 U.S. articulated ond, by a local covers donations the term also 1950, applied expenditures to affiliate, above and be to the national non-ideological activities ideological and fee, to be yond of the affiliation the amount at In the course alike. 204 F.3d 300-02. support litigation efforts. In other used discussion, panel "[Su that the stated its words, describes “direct contribution” that the union could preme] Court also said litigation that is to extra-unit contribution litigation expenses compel payment not affiliation fee or of the normal made outside normally arising the contract or not out of arrange participation resources agent, bargaining by an exclusive conducted Lehnert, ment. Cf. be some despite there could the fact pooled re (distinguishing between 1950 members.” benefit to union indirect or interest- donation[s] and "direct sources Ellis, (citing U.S. at 104 466 unit,” to an unrelated loan[s] free 1883). dicta. Extra-unit sentence was This by union to its a local "contribution[s] litigation expenses were not at issue in Rome responsi parent part of the local’s that is not ro. of a is in the nature as an affiliate but bilities describe two "direct” contributions donation”). 16. Such charitable by unit could contribute means which a local recognize cile Ellis and Lehnert is to filiation or pooling relationship. As this good distinction. Ellis continues to case involves extra-unit funded law, literally says, and to what it pooling agreement, mean we conclude involving a unit’s direct cases the Lehnert definition of support litigation by apply. should But spent units. where monies are in a Although Justice Blackmun’s treatment pooling arrangement, as described Leh of extra-unit litigation costs Lehnert did nert, changeability Ellis not bar the does majority not command a of the Court and litigation expenses, of extra-unit and Leh hence is not controlling, appellants rely germaneness, applicable nert’s definition of it, heavily on and its grounding Ellis. generally pooling arrangements, applies However, like some of Justice Blackmun’s sensibly litigation expenses funded colleagues, persuaded by we are not his pooling arrangement. such a analysis. Justice Blackmun stated that “extraunit more akin to lob- [is] activity ger Under is bying bargaining] collective [than both substantively if it mane related to bar kind and effect.” 500 U.S. at gaining “ultimately and will inure to the S.Ct. 1950. He noted union,” benefit of the members of the local “may range cover a diverse of areas from S.Ct. 1950. Where a bankruptcy proceedings employment unit enters a pooling arrangement, the discrimination,” and concluded that it was pool provides itself a benefit the to essentially “political expressive” and in na- Otto, unit. As noted in the ar pooling Court, ture. Id. The Lehnert consistent insurance, rangement whereby is akin to Hanson, with the earlier decisions in the local unit contributes certain amounts 238, 714, Abood, U.S. at 76 S.Ct. and larger to a fund in order to ensure that the U.S. at recognized that (in larger provide fund will resources the purely political ideological or expenditures return, money) form of services or when constitutionally could not charged be to the local unit needs them. See id. at 522- Therefore, nonmembers. once Justice 24; Otto, (“Even 330 F.3d at if a local Blackmun characterized extra-unit litiga- party arrangement union to such an does tion expressive political, as 500 U.S. at litigate any given year, not it still de he had no need to tangible rives a benefit from participating apply general changeability the test set in an expense-pooling agreement: the forth in Lehnert to the costs of litiga- such availability greater of on-call resources tion. than those it individually.”). could muster therefore, arrangement, think, however, This differs in litigation We that not unilateral, non-reciprocal kind from susceptible single contri to a label. Some (of butions to extra-unit litigation may the sort purely expressive, tion and there- Ellis), at issue in a bargaining clearly fore scope outside the of charge- unit would have no expectation However, reasonable able activities. return funding benefit. The mecha be central to the negotiation and ad-

nism used is critical ato determination of ministration of a collective which definition of ought agreement. case, In this appellants the assumes, apply. The Ellis definition and have not challenged MSEA’s characteriza- thereby requires, a direct source of fund tion of the litigation for which the non- ing, whereas the Lehnert ger- definition of charged members were as “related” to col- maneness assumes the existence of an af- lective bargaining. There is no contention language might be read that parties, purely expres- issue is litigation at the that all extra-unit per se rule endorse a political. or sive to nonmembers. can be Therefore, the Lehnert three- apply we noted, However, parties the did have as we whether MSEA’s to determine prong test charges dispute whether litigation efforts to SEIU’s contributions that term was defined “germane,” as were If the SEIU chargeable. properly were Therefore, court the district in Lehnert. to MSEA’s collec- “germane” was assumed, consistent with must have duties, term was tive it, made to that the extra- representations Lehnert, justified if it defined “ger- it were litigation charges before peace in labor interests government’s Lehnert. On meaning mane” within riders, if it did of free prevention agree understanding, we the basis of burdening significantly add “not disposition of the the district court’s in the allow- inherent that is speech free litigation issue. extra-unit shop,” agency ance of an costs of 519, 111 MSEA’s IV. charge- were to that contribution appellants. able to the district Appellants also claim that pro- in the finding no flaw court erred not, have before appellants the non- by MSEA assess cess used that the argued appeal, court or on district argue that Hudson They fee. member they for which expenditures imposed a re- explicitly, if not implicitly, test. satisfy charged failed an advance that unions make quirement Ellis, Justice Instead, relying fee based on of the service reduction litiga of extra-unit treatment Blackmun’s classi- that are percentage argued have costs ar- They further nonchargeable. fied as law, that, as a matter only in done calculation must be gue that the “germane,” could not be deemed litigation “good faith.” it associated and hence costs charged to nonmembers. not be could noted, did make already MSEA As are argument, we rejected that Having reduction, assessing approximate advance at issue that the costs to conclude bound as a service members’ dues ly 49% of its test, as satisfy ehargeability do here fact, we Given fee on nonmembers. regarding the dispute no has been there such a reduc consider whether decline to the test. prongs third second and mandatory under Hudson.17 tion is therefore, us, only remaining issue before addressing this extra-unit is service fee by which the is the issue, “as a matter method district held court However, challenge appellants’ cost of calculated. law[,] that the inclusion simply a calculation is method does not violate extra-[unit] chal of their in different terms reiteration rights.” 425 Plaintiffs’ constitutional constitutionality of extra-unit isolation, lenge to the at 147. Viewed F.Supp.2d is, appellants charges. That by the framed arguments from the apart impartial that an object, Hudson holds er to denying a prelim- order 17. The district court's objectors’ fees escrowing of and the an advance reduc- arbitrator inary injunction held Karass, complaint is suffi- pending resolution of required. not Locke tion was constitu- (D.Me.2005) safeguard the nonmembers’ ("Assuming cient to F.Supp.2d on this rights.”). Appellants focused enough pro- tional adequate notice the union’s is brief, despite its mootness. ruling their ability determine wheth- tect nonmembers’ LYNCH, claim that “chargeable” definition of Judge, joining Circuit concurring. excessively broad because included expenditures. They Right Legal The National to Work De have not identified procedural defects Foundation, fense representing non-union explanation the notice and that MSEA ized Maine employees, brought state provided They to nonmembers. hopes also have case in the of persuading the Su preme Court to resolve an disputed any issue charges discrete based on Court left unanswered in Lehnert v. Ferris the facts or expendi- circumstances of the Faculty ture. There is no second issue to decide.

1950, 114 (1991), L.Ed.2d 572 and on which the circuit courts differ. V. Unions that take on the role of exclusive bargaining representative according to the In the aftermath Court’s agreement terms of a collective bargaining decisions Ellis and we under- duty bargain owe a on behalf of all uncertainty stand the about the constitu- Indeed, employees. once the union has tionality of charging nonmembers of a un- been certified as the exclusive ion for the costs of extra-unit litigation. representative, employees may not ne- However, above, for the reasons described gotiate independently with management. we find that Lehnert and Ellis can be goods Unions secure collective for those by identifying reconciled the mechanism employees, benefits, such higher wages, as which local unit contributes to extra- job Leslie, security. generally See D. litigation. Where extra-unit Units, Labor Bargaining 70 Va. L.Rev. contributions, funded direct (1984). 353, 354-60 All employees enjoy at Ellis, not be efforts, least some of the fruits of a union’s expenditures. those Where the only but pay members union dues. tion is funded through pooling arrange- security Union mechanisms such as ment, the broader Lehnert definition of agency shop agreements combat this free germaneness applies and the affiliation re- problem by rider ensuring that nonmem- lationship between the state or national bers who benefit from the union’s collec- union and the local unit will be sufficient to tive bargaining pay their fair demonstrate that will “in- support 379; share to the union. unit; thus, ure to the benefit” of the local Beck, see also Commc’ns Workers v. 487 situations, in these charges ger- will be 735, 747-54, U.S. 108 S.Ct. 101 long mane so as the at issue (1988) L.Ed.2d 634 (discussing role of free bargaining relates to the process. problem legislative rider history of the National Labor Relations Act and the The facts this case are disputed. not Act). Railway Labor An agency shop The extra-unit costs were funded agreement requires “that employees, as a pooling arrangement and were condition of employment, continued must substantively related to bargaining union, either become members of the process. Those chargeable costs are to obligation, attendant dues pay the nonmember appellants without offend- union a service fee.” 2J. Higgins, The De- ing the First Amendment of the Constitu- (5th ed.2006). veloping Labor Law 2143-44 tion. fee, case, That as is true in typically this is Affirmed. less than pay the fee union members and

67 assessed nonmembers “grandfathered” common benefits those the cost of covers fees, or agency $4.47 the usual only derived. 50% of have employees that non-union biweekly, June 2006. until employees government Compelling issues. of the Local’s equal constitutional A to 13.86% portion fees raises pay em- public extra-unit forbids attributable to agency First Amendment fees was The (i.e. payment requiring paid affiliation fees union from ployees’ expenditures SEIU). ideo- support used to of fees union accounted for national nonmembers The its “germane to duties fees logical “professional activities not that sum as 12.08% of representative.” represents as collective That line item expenses.” and Educ., 431 Bd. v. Detroit to em- agency Abood fees 1.67% of the 261 52 L.Ed.2d 1989. For join Local that did ployees (1977). “germaneness,” The limits “full charged their nonmember ex- of union poles lie between share,” charge amounts to a fair activities ideological purely penditures all per month —for biweekly $.30 $.15 —or bar- for core collective na- charged by the services professional activities, to much lead gaining An undefined to Local 1989. tional union employ- nonmember unions and between professional of the extra-unit proportion Finkin, See, M.& e.g., R. Gorman ees. litigation. attributable expenses are (2d 921-27 Law Text on Labor Basic monetary amount at Thus, maximum ed.2004). cents less than fifteen case is issue this plaintiffs when to each of each month shop agree agency law

Maine allows less than grandfathered, Relations ments, Labor as the National paying nonmembers thirty cents to other do. to choose to the state permits Act agency fees. Justices, 135,147- 401 A.2d Opinion 152(2) § (Me.1979); see also U.S.C. raised very narrow issue from employers government (exempting shop agency Local 1989’s case is whether Educ. NLRA); v. Wash. Davenport exclude SEIU’s extra-unit fees must — 2372, 2376, U.S. -, cal- rule for from the usual expenses (2007). The Maine State L.Ed.2d expenses. culating chargeable Association, 1989, Ser Local Employees of extra- chargeability ruled that Lehnert Union, International Employees vice case-by-case subject to is “a expenses (“Local 1989”), includes AFL-CIO-CLC S.Ct. 1950. analysis.” chargeable expenses calculation its “(1) ‘ger- must be Chargeable of the affiliation portion some (2) activity; mane’ to collective SEIU, its national pays fees the poli- vital government’s justified by the may in fees agency parent union. The avoiding peace in labor cy interest of these so-called only portion clude (3) add riders’; not significantly ‘free “ger for activities expenses” “extra-unit speech free burdening of unit. local mane” to the [agency the allowance of inherent dispute is no There help shop].” set here involved The actual sums “ger- by SEIU July extra-unit As of dispute. the context of this ques- pertinent in that sense. biweekly mane” paid Local 1989 members of categorical a present plaintiffs employ- Nonmember union fees of $18.20. expenses so extra agency one—are “full fair share” subject to ees expenses extra-unit from other biweekly pay different each fee were $8.94 differ- per se treated should themselves Plaintiffs period. ently agency purposes? for fee brought As de- is better with an plain- extra-unit Judge Lipez’s scribed well in opinion, Leh- tiff.18 In return for these considerable directly nert did not question. benefits, answer the pay a local union need an affilia- is, I think clearly, the answer “No.” tion fee to the national. There is no rea- think, presented son to and no evidence by by The First Amendment is not violated the plaintiffs prove, that the free rider allowing extra-unit litigation expenses to problem simply is eliminated because the be charged according to the same criteria common extra-unit benefit is obtained germaneness as other extra-unit ex fact, through litigation. position such a penses. Extra-unit litigation expenses are “overlooks interdependence the economic analytically not different from other Int'l, bargaining units.” Int’l Ass’n Ma- expenses. extra-unit See Ass’n chinists, 133 F.3d at 1016. Machinists & Aerospace Workers v. NLRB, (7th Cir.1998) 133 F.3d Further, particular if a extra-unit law- C.J.) (Posner, (noting challenge that in suit is too remote and indirect in benefit to fees, litigation extra-unit expenses were unit, a local bargaining or if a national separately by “treated parties but a brings purposes totally suit for identical, analytically [are] as far as we can unrelated to its collective see”). The National Labor Relations duties, problem may be addressed Board, an body partic administrative particularized a germaneness inquiry. expertise ularized in administering labor The existence of this mechanism to deter- NLRA, disputes under the has so held for mine argues itself against over a decade. Saw & California Knife any per se exclusion of extra-unit litigation Works, (1995). 320 N.L.R.B. expenses. If brought a case is to advance problem, The free rider justifies political position, then the Lehnert rule fees, both agency local and extra-unit ex- itself will that litigation exclude from the equally ists costs as for other agency fee. extra-unit costs. Extra-unit litigation can contrary A rule would in signifi result create common benefits or avoid common practical cant detriment for both local and Litigation detriments. conducted na- national Adopting plaintiffs’ unions. pro tional frequently unions prece- establishes posed rule would lead to reducing unions’ dent that redounds to the benefit of a ability to draw on funds for relat union local and the employees repre- ed to bargaining. collective There would sents, even when the local is not named be a concomitant capacity reduced to bar party. example, For terms within a collec- gain effectively on employees. behalf of all bargaining agreement may tive yet Ultimately, chipping away at the scope of have been having established as particu- properly chargeable expenses jeop could lar meaning, and could ardize the income stream of unions. R.Cf. establish a union-friendly definition. Or a Posner, Law, Some Economics Labor may believe that a practice (1984). 988, 1004 U. Chi. L.Rev. segment common to its industry of an is an practice actionable unfair labor and con- Under marginal burden on violation, tractual but the national rights First Amendment of non-union decide strategic reasons that a lawsuit imposed by adding germane ex- 18. Another contributing benefit to a local of bargaining disputes. resolve the local's own fees to the national's fund is that See v. Otto Penn. State Educ. 330 F.3d day (3d one Cir.2003). that fund help be mobilized to 138-39 fee is the agency to fees tra-unit LOCKHART-BEMBERY, Yvette here,19 financial facts On the minimal. Plaintiff, Appellant/Cross- is costs for extra-unit burden Appellee, added burden The very small. rights associative expressive

plaintiffs’ dimi- significant amount could not Defendant, SAURO, Daniel First infringement alone nution —let —of Appellee/Cross- rights. Amendment Appellant, could be rule categorical proposed Department; Wayland Police Town All of the dimension. in another viewed capacity Irving, in as Chief his Robert set of rules need a clear parties affected Department, Wayland Police argued that It could be operate. Defendants. all extra-unit prohibiting flat rule non-union being chargeable from 06-1720, 06-2228. Nos. easily administrable would of Appeals, States Court United But economically efficient. and therefore Circuit. First ex- extra-unit of SEIU’s that some given nonmembers, it can be penses 4, 2007. June Heard compo- of one why the deletion is unclear Aug. 2007. Decided make the would charge-back nent of to administer. materially easier system this record

Indeed, no evidence there is costs administrative any additional germane charging back imposed

are This track- expenses. expenses allocation

ing and matter. accounting

a routine spent been resources have many

A great elsewhere. here and far on issue

thus by the issue of this

Decision clarity. needed provide would concern Our violation. Amendment First the facts those costs on Hypothetically, but burdensome, extreme case here is not with and the given be so case could categorical adopt a rule. attenuated, whether could be that there benefits so

Case Details

Case Name: Locke v. Karass

Court Name: Court of Appeals for the First Circuit

Date Published: Aug 8, 2007

Citation: 498 F.3d 49

Docket Number: 06-1747

Court Abbreviation: 1st Cir.