Lehnert v. Ferris Faculty Association/Opinion of the Court

From Wikisource
Jump to: navigation, search
Lehnert v. Ferris Faculty Association by Harry Blackmun
Opinion of the Court
Court Documents
Case Syllabus
Opinion of the Court
Concurring Opinions
Marshall
Scalia
Kennedy
Wikipedia-logo-v2.svg Wikipedia article


Justice BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, concluding that:

1. Abood and other of the Court's decisions in this area set forth guidelines for determining which activities a union constitutionally may charge to dissenting employees. Specifically, chargeable activities must (1) be "germane" to collective-bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding "free riders" who benefit from union efforts without paying for union services; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop. Pp. 514-519.

2. 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. Because the essence of the affiliation relationship is the notion that the parent union will bring to bear its often considerable economic, political, and informational resources when the local is in need of them, that part of a local's affiliation fee which contributes to the pool of resources potentially available to it is assessed for the bargaining unit's protection, even if it is not actually expended on that unit in any particular membership year. Cf. Ellis v. Railway Clerks, 466 U.S. 435, 448, 104 S.Ct. 1883, 1892, 80 L.Ed.2d 428. This does not give the local union carte blanche, since there must be some indication that the payment is for services that may ultimately enure to the benefit of the local's members by virtue of their membership in the parent organization, and since the union bears the burden of proving the proportion of chargeable expenses to total expenses. Pp. 522-524.

3. Justice SCALIA's "statutory duties" test is not supported by this Court's cases and must be rejected, since state labor laws are rarely precise in defining public-sector unions' duties to their members and therefore afford courts and litigants little guidance for determining which charges violate dissenting employees' First Amendment rights; since the test fails to acknowledge that effective representation often encompasses responsibilities extending beyond those specifically delineated by statute; and since the test turns constitutional doctrine on its head, making violations of freedom of speech dependent upon the terms of state statutes. Pp. 524-527.

4. In light of the foregoing general principles, certain of the union activities at issue may constitutionally be supported through objecting employees' funds. Pp. 527, 529-532.

(a) NEA "program expenditures" destined for States other than Michigan and the expenses of an MEA publication, the Teacher's Voice, listed as "Collective Bargaining" are germane to collective-bargaining and similar support services even though the activities in question do not directly benefit persons in petitioners' bargaining unit. P. 527.

(b) Information services such as portions of the Teacher's Voice that concern teaching and education generally, professional development, unemployment, job opportunities, MEA award programs, and other miscellaneous matters are neither political nor public in nature, are for the benefit of all even though they do not directly concern the members of petitioners' bargaining unit, and entail no additional infringement of First Amendment rights. Cf. Ellis, 466 U.S., at 456, 104 S.Ct., at 1896. P. 529.

(c) Participation by FFA delegates in the MEA and NEA conventions and in the 13E Coordinating Council meeting, an event at which bargaining strategies and representational policies are developed for bargaining units including petitioners', are likely to engender important affiliation benefits, since such conventions are essential to the union's discharge of its bargaining agent duties even though they are not solely devoted to FFA activities. Cf. Ellis, 466 U.S., at 448-449, 104 S.Ct., at 1892-1893. P. 529-530.

(d) Expenses incident to preparation for a strike all concede would have been illegal under Michigan law are substantively indistinguishable from those appurtenant to collective-bargaining negotiations, aid in those negotiations and enure to the direct benefit of members of the dissenters' unit, and impose no additional burden upon First Amendment rights. Pp. 530-532.

Justice BLACKMUN, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice STEVENS, concluded in Parts III-A and IV-A, in the final paragraph of Part IV-B, and in Part IV-C, that certain other of the union activities at issue may not constitutionally be supported through objecting employees' funds. Pp. 519-522, 527, 528-529.

(a) Charging dissenters for lobbying, electoral, or other union political activities outside the limited context of contract ratification or implementation is not justified by the government's interest in promoting labor peace and avoiding "free riders," and, most important, would compel dissenters to engage in core political speech with which they disagree, thus placing a burden upon their First Amendment rights that extends far beyond acceptance of the agency shop. Pp. 519-522.

(b) A union program designed to secure funds for public education in Michigan and that portion of the Teacher's Voice which reported those efforts were not shown to be oriented toward the ratification or implementation of petitioners' collective-bargaining agreement. P. 527.

(c) Litigation that does not concern petitioners' bargaining unit and, by extension, union literature reporting on such litigation are not germane to the union's duties as exclusive bargaining representative. Cf. Ellis, 466 U.S., at 453, 104 S.Ct., at 1894. Extra-unit litigation is akin to lobbying in its political and expressive nature and may cover a diverse range of activities, from bankruptcy proceedings to employment discrimination. P. 528.

(d) Public relations efforts designed to enhance the reputation of the teaching profession and covering information picketing, media exposure, signs, posters, and buttons entail speech of a political nature in a public forum, are not sufficiently related to the union's collective-bargaining functions, and extend beyond the negotiation and grievance-resolution contexts to impose a substantially greater burden upon First Amendment rights. Ellis, 466 U.S., at 456, 104 S.Ct., at 1896, distinguished. Pp. 528-529.

Justice SCALIA, joined by Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER, although agreeing with Justice BLACKMUN's disposition of many of the challenged expenditures, concluded that the Court's three-part test is neither required nor suggested by its earlier cases and provides little if any guidance to parties or lower courts, and that a much more administrable test is implicit in the earlier decisions: a union may constitutionally compel contributions from dissenting nonmembers in an agency shop only for the costs of performing the union's statutory duties as exclusive bargaining agent. See, e.g., Machinists v. Street, 367 U.S. 740, 749, 760-764, 768, 81 S.Ct. 1784, 1789, 1795-1798, 1799, 6 L.Ed.2d 1141; id., at 787, 81 S.Ct., at 1808 (Black, J., dissenting). Applying the latter test, Justice SCALIA also concluded, inter alia, that a number of the challenged expenses, including those for public relations activities and lobbying, cannot be charged to nonmembers. Pp. 1954-1961.

BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, in which REHNQUIST, C.J., and WHITE, MARSHALL, and STEVENS, JJ., joined, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which REHNQUIST, C.J., and WHITE and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which O'CONNOR and SOUTER, JJ., joined, and in all but Part III-C of which KENNEDY, J., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part.

Raymond J. LaJeunesse, for petitioners.

Robert H. Chanin, for respondents.

Justice BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which THE CHIEF JUSTICE, Justice WHITE, and Justice STEVENS join.

This case presents issues concerning the constitutional limitations, if any, upon the payment, required as a condition of employment, of dues by a nonmember to a union in the public sector.

* Michigan's Public Employment Relations Act (Act), Mich.Comp.Laws §§ 423.201 et seq. (1978), provides that a duly selected union shall serve as the exclusive collective-bargaining representative of public employees in a particular bargaining unit. [1] The Act, which applies to faculty members of a public educational institution in Michigan, permits a union and a government employer to enter into an "agency shop" arrangement under which employees within the bargaining unit who decline to become members of the union are compelled to pay a "service fee" to the union. [2]

Respondent Ferris Faculty Association (FFA), an affiliate of the Michigan Education Association (MEA) and the National Education Association (NEA), serves, pursuant to this provision, as the exclusive bargaining representative of the faculty of Ferris State College in Big Rapids, Mich. Ferris is a public institution established under the Michigan Constitution and is funded by the State. See Mich. Const. Art. VIII, § 4. Since 1975, the FFA and Ferris have entered into successive collective-bargaining agreements containing agency-shop provisions. Those agreements were the fruit of negotiations between the FFA and respondent Board of Control, the governing body of Ferris. See Mich.Comp.Law § 390.802 (1988).

Subsequent to this Court's decision in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), in which the Court upheld the constitutionality of the Michigan agency-shop provision and outlined permissible uses of the compelled fee by public-employee unions, Ferris proposed, and the FFA agreed to, the agency-shop arrangement at issue here. That agreement required all employees in the bargaining unit who did not belong to the FFA to pay a service fee equivalent to the amount of dues required of a union member. [3] Of the $284.00 service fee for 1981-1982, the period at issue, $24.80 went to the FFA, $211.20 to the MEA, and $48.00 to the NEA.

Petitioners were members of the Ferris faculty during the period in question and objected to certain uses by the unions of their service fees. Petitioners instituted this action, pursuant to 42 U.S.C. §§ 1983, 1985, 1986, in the United States District Court for the Western District of Michigan, claiming that the use of their fees for purposes other than negotiating and administering a collective-bargaining agreement with the Board of Control violated rights secured to them by the First and Fourteenth Amendments of the United States Constitution. Petitioners also claimed that the procedures implemented by the unions to determine and collect service fees were inadequate.

After a 12-day bench trial, the District Court issued its opinion holding that certain union expenditures were chargeable to petitioners, that certain other expenditures were not chargeable as a matter of law, and that still other expenditures were not chargeable because the unions had failed to sustain their burden of proving that the expenditures were made for chargeable activities. 643 F.Supp. 1306 (1986).

Following a partial settlement, petitioners took an appeal limited to the claim that the District Court erred in holding that the costs of certain disputed union activities were constitutionally chargeable to the plaintiff faculty members. Specifically, petitioners objected to the District Court's conclusion that the union constitutionally could charge them for the costs of (1) lobbying and electoral politics; (2) bargaining, litigation, and other activities on behalf of persons not in petitioners' bargaining unit; (3) public relations efforts; (4) miscellaneous professional activities; (5) meetings and conventions of the parent unions; and (6) preparation for a strike which, had it materialized, would have violated Michigan law.

The Court of Appeals, with one judge dissenting in large part, affirmed. 881 F.2d 1388 (CA6 1989). After reviewing this Court's cases in the area, the court concluded that each of the challenged activities was sufficiently related to the unions' duties as the exclusive bargaining representative of petitioners' unit to justify compelling petitioners to assist in subsidizing it. The dissenting judge concurred with respect to convention expenses but disagreed with the majority's resolution of the other items challenged. Id., at 1394. Because of the importance of the issues, we granted certiorari. --- U.S. ----, 110 S.Ct. 2616, 110 L.Ed.2d 637 (1990).

This is not our first opportunity to consider the constitutional dimensions of union-security provisions such as the agency-shop agreement at issue here. The Court first addressed the question in Railway Employees v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), where it recognized the validity of a "union shop" agreement authorized by § 2, Eleventh, of the Railway Labor Act (RLA), as amended, 64 Stat. 1238, 45 U.S.C. § 152, Eleventh, as applied to private employees. As with the Michigan statute we consider today, the RLA provision at issue in Hanson was permissive in nature. It was more expansive than the Michigan Act, however, because the challenged RLA provision authorized an agreement that compelled union membership, rather than simply the payment of a service fee by a nonmember employee.

Finding that the concomitants of compulsory union membership authorized by the RLA extended only to financial support of the union in its collective-bargaining activities, the Court determined that the challenged arrangement did not offend First or Fifth Amendment values. It cautioned, however: "If 'assessments' are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented." 351 U.S., at 235, 76 S.Ct., at 720 (footnote omitted). It further emphasized that the Court's approval of the statutorily sanctioned agreement did not extend to cases in which compelled membership is used "as a cover for forcing ideological conformity or other action in contravention of the First Amendment." Id., at 238, 76 S.Ct., at 721.

Hanson did not directly concern the extent to which union dues collected under a governmentally authorized union-shop agreement may be utilized in support of ideological causes or political campaigns to which reluctant union members are opposed. The Court addressed that issue under the RLA in Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). Unlike Hanson, the record in Street was replete with detailed information and specific factual findings that the union dues of dissenting employees had been used for political purposes. Recognizing that, in enacting § 2, Eleventh, of the RLA, Congress sought to protect the expressive freedom of dissenting employees while promoting collective representation, the Street Court construed the RLA to deny unions the authority to expend dissenters' funds in support of political causes to which those employees objected.

Two years later in Railway Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235 (1963), another RLA case, the Court reaffirmed that holding. It emphasized the important distinction between a union's political expenditures and "those germane to collective bargaining," with only the latter being properly chargeable to dissenting employees under the statute.

Although they are cases of statutory construction, Street and Allen are instructive in delineating the bounds of the First Amendment in this area as well. Because the Court expressly has interpreted the RLA "to avoid serious doubt of [the statute's] constitutionality," Street, 367 U.S., at 749, 81 S.Ct., at 1790; see Ellis v. Railway Clerks, 466 U.S. 435, 444, 104 S.Ct. 1883, 1890, 80 L.Ed.2d 428 (1984), the RLA cases necessarily provide some guidance regarding what the First Amendment will countenance in the realm of union support of political activities through mandatory assessments. Specifically, those cases make clear that expenses that are relevant or "germane" to the collective-bargaining functions of the union generally will be constitutionally chargeable to dissenting employees. They further establish that, at least in the private sector, those functions do not include political or ideological activities.

It was not until the decision in Abood that this Court addressed the constitutionality of union-security provisions in the public-employment context. There, the Court upheld the same Michigan statute which is before us today against a facial First Amendment challenge. At the same time, it determined that the claim that a union has utilized an individual agency-shop agreement to force dissenting employees to subsidize ideological activities could establish, upon a proper showing, a First Amendment violation. In so doing, the Court set out several important propositions:

First, it recognized that "[t]o compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests." 431 U.S., at 222, 97 S.Ct., at 1793. Unions traditionally have aligned themselves with a wide range of social, political, and ideological viewpoints, any number of which might bring vigorous disapproval from individual employees. To force employees to contribute, albeit indirectly, to the promotion of such positions implicates core First Amendment concerns. See, e.g., Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977) ("[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all").

Second, the Court in Abood determined that, as in the private sector, compulsory affiliation with, or monetary support of, a public-employment union does not, without more, violate the First Amendment rights of public employees. Similarly, an employee's free speech rights are not unconstitutionally burdened because the employee opposes positions taken by a union in its capacity as collective-bargaining representative. "[T]he judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress." 431 U.S., at 222, 97 S.Ct., at 1793.

In this connection, the Court indicated that the considerations that justify the union shop in the private context the desirability of labor peace and eliminating "free riders"-are equally important in the public-sector workplace. Consequently, the use of dissenters' assessments "for the purposes of collective bargaining, contract administration, and grievance adjustment," id., at 225-226, 97 S.Ct., at 1794-1795, approved under the RLA, is equally permissible when authorized by a State vis-a-vis its own workers.

Third, the Court established that the constitutional principles that prevent a State from conditioning public employment upon association with a political party, see Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion), or upon professed religious allegiance, see Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), similarly prohibit a public employer "from requiring [an employee] to contribute to the support of an ideological cause he may oppose as a condition of holding a job" as a public educator. 431 U.S., at 235, 97 S.Ct., at 1799.

The Court in Abood did not attempt to draw a precise line between permissible assessments for public-sector collective bargaining activities and prohibited assessments for ideological activities. It did note, however, that, while a similar line must be drawn in the private sector under the RLA, the distinction in the public sector may be "somewhat hazier." Id., at 236, 97 S.Ct., at 1800. This is so because the "process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process." Ibid.

Finally, in Ellis, the Court considered, among other issues, a First Amendment challenge to the use of dissenters' funds for various union expenses including union conventions, publications, and social events. Recognizing that by allowing union-security arrangements at all, it has necessarily countenanced a significant burdening of First Amendment rights, it limited its inquiry to whether the expenses at issue "involve[d] additional interference with the First Amendment interests of objecting employees, and, if so, whether they are nonetheless adequately supported by a governmental interest." 466 U.S., at 456, 104 S.Ct., at 1896 (emphasis added).

Applying that standard to the challenged expenses, the Court found all three to be properly supportable through mandatory assessments. The dissenting employees in Ellis objected to charges relating to union social functions, not because those activities were inherently expressive or ideological in nature, but purely because they were sponsored by the union. Because employees may constitutionally be compelled to affiliate with a union, the Court found that forced contribution to union social events that were open to all imposed no additional burden on their First Amendment rights. Although the challenged expenses for union publications and conventions were clearly communicative in nature, the Court found them to entail little additional encroachment upon freedom of speech, "and none that is not justified by the governmental interests behind the union shop itself." Ibid. See also Keller v. State Bar of California, --- U.S. ---- 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990), and Communications Workers v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988).

Thus, although the Court's decisions in this area prescribe a case-by-case analysis in determining which activities a union constitutionally may charge to dissenting employees, they also set forth several guidelines to be followed in making such determinations. Hanson and Street and their progeny teach that chargeable activities must (1) be "germane" to collective-bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding "free riders"; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.

In arguing that these principles exclude the charges upheld by the Court of Appeals, petitioners propose two limitations on the use by public-sector unions of dissenters' contributions. First, they urge that they may not be charged over their objection for lobbying activities that do not concern legislative ratification of, or fiscal appropriations for, their collective-bargaining agreement. Second, as to nonpolitical expenses, petitioners assert that the local union may not utilize dissenters' fees for activities that, though closely related to collective bargaining generally, are not undertaken directly on behalf of the bargaining unit to which the objecting employees belong. We accept the former proposition but find the latter to be foreclosed by our prior decisions.

The Court of Appeals determined that unions constitutionally may subsidize lobbying and other political activities with dissenters' fees so long as those activities are " 'pertinent to the duties of the union as a bargaining representative.' " 881 F.2d at 1392, quoting Robinson v. New Jersey, 741 F.2d 598, 609 (CA3 1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1228, 84 L.Ed.2d 366 (1985). In reaching this conclusion, the court relied upon the inherently political nature of salary and other workplace decisions in public employment. "To represent their members effectively," the court concluded, "public sector unions must necessarily concern themselves not only with negotiations at the bargaining table but also with advancing their members' interests in legislative and other 'political' arenas." 881 F.2d, at 1392.

This observation is clearly correct. Public-sector unions often expend considerable resources in securing ratification of negotiated agreements by the proper state or local legislative body. See Note, Union Security in the Public Sector: Defining Political Expenditures Related to Collective Bargaining, 1980 Wis.L.Rev. 134, 150-152. Similarly, union efforts to acquire appropriations for approved collective-bargaining agreements often serve as an indispensable prerequisite to their implementation. See Developments in the Law: Public Employment, 97 Harv.L.Rev. 1611, 1732-1733 (1984). It was in reference to these characteristics of public employment that the Court in Abood discussed the "somewhat hazier" line between bargaining-related and purely ideological activities in the public sector. 431 U.S., at 236, 97 S.Ct., at 1800. The dual roles of government as employer and policymaker in such cases make the analogy between lobbying and collective bargaining in the public sector a close one.

This, however, is not such a case. Where, as here, the challenged lobbying activities relate not to the ratification or implementation of a dissenter's collective-bargaining agreement, but to financial support of the employee's profession or of public employees generally, the connection to the union's function as bargaining representative is too attenuated to justify compelled support by objecting employees.

We arrive at this result by looking to the governmental interests underlying our acceptance of union security arrangements. We have found such arrangements to be justified by the government's interest in promoting labor peace and avoiding the "free-rider" problem that would otherwise accompany union recognition. Chicago Teachers v. Hudson, 475 U.S. 292, 302-303, 106 S.Ct. 1066, 1073-1074, 89 L.Ed.2d 232 (1986); Abood, 431 U.S. at 224, 97 S.Ct., at 1793. Neither goal is served by charging objecting employees for lobbying, electoral, and other political activities that do not relate to their collective-bargaining agreement.

Labor peace is not especially served by allowing such charges because, unlike collective-bargaining negotiations between union and management, our national and state legislatures, the media, and the platform of public discourse are public fora open to all. Individual employees are free to petition their neighbors and government in opposition to the union which represents them in the workplace. Because worker and union cannot be said to speak with one voice, it would not further the cause of harmonious industrial relations to compel objecting employees to finance union political activities as well as their own.

Similarly, while we have endorsed the notion that nonunion workers ought not be allowed to benefit from the terms of employment secured by union efforts without paying for those services, the so-called "free-rider" concern is inapplicable where lobbying extends beyond the effectuation of a collective-bargaining agreement. The balancing of monetary and other policy choices performed by legislatures is not limited to the workplace but typically has ramifications that extend into diverse aspects of an employee's life.

Perhaps most important, allowing the use of dissenters' assessments for political activities outside the scope of the collective-bargaining context would present "additional interference with the First Amendment interests of objecting employees." Ellis, 466 U.S., at 456, 104 S.Ct., at 1896. There is no question as to the expressive and ideological content of these activities. Further, unlike discussion by negotiators regarding the terms and conditions of employment, lobbying and electoral speech is likely to concern topics about which individuals hold strong personal views. Although First Amendment protection is in no way limited to controversial topics or emotionally charged issues, see Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948); Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976); Abood, 431 U.S., at 231, and n. 28, 97 S.Ct., at 1797, and n. 28, the extent of one's disagreement with the subject of compulsory speech is relevant to the degree of impingement upon free expression that compulsion will effect.

The burden upon freedom of expression is particularly great where, as here, the compelled speech is in a public context. By utilizing petitioners' funds for political lobbying and to garner the support of the public in its endeavors, the union would use each dissenter as "an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Maynard, 430 U.S., at 715, 97 S.Ct., at 1435. The First Amendment protects the individual's right of participation in these spheres from precisely this type of invasion. Where the subject of compelled speech is the discussion of governmental affairs, which is at the core of our First Amendment freedoms, Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957); Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966); Buckley v. Valeo, 424 U.S., at 14, 96 S.Ct., at 632, the burden upon dissenters' rights extends far beyond the acceptance of the agency shop and is constitutionally impermissible.

Accordingly, we hold that the State constitutionally may not compel its employees to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation.

Petitioners' contention that they may be charged only for those collective-bargaining activities undertaken directly on behalf of their unit presents a closer question. While we consistently have looked to whether nonideological expenses are "germane to collective bargaining," Hanson, 351 U.S., at 235, 76 S.Ct., at 720, we have never interpreted that test to require a direct relationship between the expense at issue and some tangible benefit to the dissenters' bargaining unit.

We think that to require so close a connection would be to ignore the unified-membership structure under which many unions, including those here, operate. Under such arrangements, membership in the local union constitutes membership in the state and national parent organizations. See 643 F.Supp., at 1308. See also Cumero v. Public Employment Relations Board, 49 Cal.3d 575, 603-604, 262 Cal.Rptr. 46, 64, 778 P.2d 174, 192 (1989) (noting the inherent "close organizational relationship").

The essence of the affiliation relationship is the notion that the parent will bring to bear its often considerable economic, political, and informational resources when the local is in need of them. Consequently, that part of a local's affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit's protection, even if it is not actually expended on that unit in any particular membership year.

The Court recognized as much in Ellis. There it construed the RLA to allow the use of dissenters' funds to help defray the costs of the respondent union's national conventions. It reasoned that "if a union is to perform its statutory functions, it must maintain its corporate or associational existence, must elect officers to manage and carry on its affairs, and may consult its members about overall bargaining goals and policy." 466 U.S., at 448, 104 S.Ct., at 1892. We see no reason why analogous public-sector union activities should be treated differently. [4]

We therefore conclude 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. This conclusion, however, does not serve to grant a local union carte blanche to expend dissenters' dollars for bargaining activities wholly unrelated to the employees in their unit. The union surely may not, for example, charge objecting employees for a direct donation or interest-free loan to an unrelated bargaining unit for the purpose of promoting employee rights or unionism generally. Further, a contribution by a local union to its parent that is not part of the local's responsibilities as an affiliate but is in the nature of a charitable donation would not be chargeable to dissenters. There must be some indication that the payment is for services that may ultimately enure to the benefit of the members of the local union by virtue of their membership in the parent organization. And, as always, the union bears the burden of proving the proportion of chargeable expenses to total expenses. Chicago Teachers v. Hudson, 475 U.S., at 306, 106 S.Ct., at 1075; Abood, 431 U.S., at 239-240, n. 40, 97 S.Ct., at 1801-1802, n. 40; Railway Clerks v. Allen, 373 U.S., at 122, 83 S.Ct., at 1163. We conclude merely that the union need not demonstrate a direct and tangible impact upon the dissenting employee's unit.

Justice SCALIA would find "implicit in our cases since Street," the rule that "to be constitutional, a charge must at least be incurred in performance of the union's statutory duties." Post, at 558. As the preceding discussion indicates, we reject this reading of our cases. This Court never has held that the First Amendment compels such a requirement and our prior decisions cannot reasonably be construed to support his stated proposition. See, e.g., Ellis, 466 U.S., at 456, 104 S.Ct., at 1896 ("Petitioners may feel that their money is not being well-spent, but that does not mean they have a First Amendment complaint"); see also Keller, supra (distinguishing between statutory and constitutional duties in the context of integrated state bar membership).

Even if viewed merely as a prophylactic rule for enforcing the First Amendment in the union-security context, Justice SCALIA's approach ultimately must be rejected. As the relevant provisions of the Michigan Act illustrate, [5] state labor laws are rarely precise in defining the duties of public-sector unions to their members. Indeed, it is reasonable to assume that the Michigan provisions relating to collective-bargaining duties were purposefully drafted in broad terms so as to provide unions the flexibility and discretion necessary to accommodate the needs of their constituents. Here, as in the RLA context, "[t]he furtherance of the common cause leaves some leeway for the leadership of the group." Street, 367 U.S., at 778, 81 S.Ct., at 1805 (Douglas, J., concurring), quoted in Abood, 431 U.S., at 222-223, 97 S.Ct., at 1792-1793.

Consequently, the terms of the Act provide a poor criterion for determining which charges violate the First Amendment rights of dissenting employees. The broad language of the Act does not begin to explain which of the specific activities at issue here fall within the union's collective-bargaining function as contemplated by our cases. Far from providing a bright-line standard, Justice SCALIA's "statutory duties" test fails to afford courts and litigants the guidance necessary to make these particularized distinctions.

More important, Justice SCALIA's rigid approach fails to acknowledge the practicalities of the complex interrelationship between public employers, employees, unions, and the public. The role of an effective representative in this context often encompasses responsibilities that extend beyond those specifically delineated in skeletal state labor law statutes. See Abood, 431 U.S., at 236, 97 S.Ct., at 1800. That an exclusive bargaining representative has gone beyond the bare requirements of the law in representing its constituents through employee contributions does not automatically mean that the Constitution has been violated, at least where the funded activities have not transgressed state provisions. "The very nature of the free-rider problem and the governmental interest in overcoming it require that the union have a certain flexibility in its use of compelled funds." Ellis, 466 U.S., at 456, 104 S.Ct., at 1896.

We therefore disagree with Justice SCALIA that any charge that does not relate to an activity expressly authorized by statute is constitutionally invalid, irrespective of its impact, or lack thereof, on free expression. In our view, his analysis turns our constitutional doctrine on its head. Instead of interpreting statutes in light of First Amendment principles, he would interpret the First Amendment in light of state statutory law. It seems to us that this proposal bears little relation to the values that the First Amendment was designed to protect. A rule making violations of freedom of speech dependent upon the terms of state employment statutes would sacrifice sound constitutional analysis for the appearance of administrability.

We turn to the union activities at issue in this case.

The Court of Appeals found that the union could constitutionally charge petitioners for the costs of a Preserve Public Education (PPE) program designed to secure funds for public education in Michigan, and that portion of the MEA publication, the Teacher's Voice, which reported these activities. Petitioners argue that, contrary to the findings of the courts below, the PPE program went beyond lobbying activity and sought to affect the outcome of ballot issues and "millages" or local taxes for the support of public schools. Given our conclusion as to lobbying and electoral politics generally, this factual dispute is of little consequence. None of these activities was shown to be oriented toward the ratification or implementation of petitioner's collective-bargaining agreement. We hold that none may be supported through the funds of objecting employees.

Petitioners next challenge the Court of Appeals' allowance of several activities that the union did not undertake directly on behalf of persons within petitioners' bargaining unit. This objection principally concerns NEA "program expenditures" destined for States other than Michigan, and the expenses of the Teacher's Voice listed as "Collective Bargaining" and "Litigation." Our conclusion that unions may bill dissenting employees for their share of general collective-bargaining costs of the state or national parent union is dispositive as to the bulk of the NEA expenditures. The District Court found these costs to be germane to collective bargaining and similar support services and we decline to disturb that finding. No greater relationship is necessary in the collective-bargaining context.

This rationale does not extend, however, to the expenses of litigation that does not concern the dissenting employees' bargaining unit or, by extension, to union literature reporting on such activities. While respondents are clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit, we find extra-unit litigation to be more akin to lobbying in both kind and effect. We long have recognized the important political and expressive nature of litigation. See, e.g., NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963) (recognizing that for certain groups, "association for litigation may be the most effective form of political association"). Moreover, union litigation may cover a diverse range of areas from bankruptcy proceedings to employment discrimination. See Ellis, 466 U.S., at 453, 104 S.Ct., at 1894. When unrelated to an objecting employee's unit, such activities are not germane to the union's duties as exclusive bargaining representative. Just as the Court in Ellis determined that the RLA, as informed by the First Amendment, prohibits the use of dissenters' fees for extra-unit litigation, ibid., we hold that the Amendment proscribes such assessments in the public sector.

The Court of Appeals determined that the union constitutionally could charge petitioners for certain public-relations expenditures. In this connection, the court said: "Public relations expenditures designed to enhance the reputation of the teaching profession . . . are, in our opinion, sufficiently related to the unions' duty to represent bargaining unit employees effectively so as to be chargeable to dissenters." 881 F.2d, at 1394. We disagree. Like the challenged lobbying conduct, the public-relations activities at issue here entailed speech of a political nature in a public forum. More important, public speech in support of the teaching profession generally is not sufficiently related to the union's collective-bargaining functions to justify compelling dissenting employees to support it. Expression of this kind extends beyond the negotiation and grievance-resolution contexts and imposes a substantially greater burden upon First Amendment rights than do the latter activities.

Nor do we accept the Court of Appeals' comparison of these public-relations expenses to the costs of union social activities held in Ellis to be chargeable to dissenters. In Ellis, the Court found the communicative content of union social activities, if any, to derive solely from the union's involvement in them. 466 U.S., at 456, 104 S.Ct., at 1896. "Therefore," we reasoned, "the fact that the employee is forced to contribute does not increase the infringement of his First Amendment rights already resulting from the compelled contribution to the union." Ibid. The same cannot be said of the public-relations charges upheld by the Court of Appeals which covered "informational picketing, media exposure, signs, posters and buttons." 643 F.Supp., at 1313.

The District Court and the Court of Appeals allowed charges for those portions of the Teachers' Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs of the MEA, and other miscellaneous matters. Informational support services such as these are neither political nor public in nature. Although they do not directly concern the members of petitioners' bargaining unit, these expenditures are for the benefit of all and we discern no additional infringement of First Amendment rights that they might occasion. In short, we agree with the Court of Appeals that these expenses are comparable to the de minimis social activity charges approved in Ellis. See 466 U.S., at 456, 104 S.Ct., at 1896.

The Court of Appeals ruled that the union could use the fees of objecting employees to send FFA delegates to the MEA and the NEA conventions and to participate in the 13E Coordinating Council, another union structure. Petitioners challenge that determination and argue that, unlike the national convention expenses found to be chargeable to dissenters in Ellis, the meetings at issue here were those of affiliated parent unions rather than the local, and therefore do not relate exclusively to petitioners' unit.

We need not determine whether petitioners could be commanded to support all the expenses of these conventions. The question before the Court is simply whether the unions may constitutionally require petitioners to subsidize the participation in these events of delegates from the local. We hold that they may. That the conventions were not solely devoted to the activities of the FFA does not prevent the unions from requiring petitioners' support. We conclude above that the First Amendment does not require so close a connection. Moreover, participation by members of the local in the formal activities of the parent is likely to be an important benefit of affiliation. This conclusion is supported by the District Court's description of the 13E Coordinating Council meeting as an event at which "bargaining strategies and representational policies are developed for the UniServ unit composed of the Ferris State College and Central Michigan University bargaining units." 643 F.Supp., at 1326. As was held in Ellis, "[c]onventions such as those at issue here are normal events . . . and seem to us to be essential to the union's discharge of its duties as bargaining agent." 466 U.S., at 448-449, 104 S.Ct., at 1892-1893.

The chargeability of expenses incident to preparation for a strike which all concede would have been illegal under Michigan law, Mich.Comp.Laws § 423.202 (1979), is a provocative question. At the beginning of the 1981-1982 fiscal year, the FFA and Ferris were engaged in negotiating a new collective-bargaining agreement. The union perceived these efforts to be ineffective, and began to prepare a "job action" or, in more familiar terms, to go out on strike. These preparations entailed the creation by the FFA and the MEA of a "crisis center" or "strike headquarters." The District Court found that, "whatever label is attached to this facility, prior to a strike it serves as a meeting place for the local's membership, a base from which tactical activities such as informational picketing can be conducted, and serves to apply additional pressure on the employer by suggesting, whether true or not, that the local is prepared to strike if necessary." 643 F.Supp., at 1313.

Had the FFA actually engaged in an illegal strike, the union clearly could not have charged the expenses incident to that strike to petitioners. We can imagine no legitimate governmental interest that would be served by compelling objecting employees to subsidize activity that the State has chosen to disallow. See Male v. Grand Rapids Education Association, 98 Mich.App. 742, 295 N.W.2d 918 (1980), appeal denied, 412 Mich. 851 (1981) (holding that, under Michigan law, compulsory-service fees cannot include money allocated to the support of public-sector strikes). Similarly, one might expect the State to prohibit unions from using dissenters' funds to threaten or prepare for such conduct. The Michigan Legislature, however, has chosen not to impose such a restriction, and we do not find the First Amendment to require that limitation.

Petitioners can identify no determination by the State of Michigan that mere preparation for an illegal strike is itself illegal or against public policy, and we are aware of none. Further, we accept the rationale provided by the Court of Appeals in upholding these charges that such expenditures fall "within the range of reasonable bargaining tools available to a public sector union during contract negotiations." 881 F.2d, at 1394. The District Court expressly credited trial testimony by an MEA representative that outward preparations for a potential strike serve as an effective bargaining tool and that only one out of every seven or eight "job action investigations" actually culminates in a strike. 643 F.Supp., at 1312. The Court of Appeals properly reviewed this finding for clear error. See Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).

In sum, these expenses are substantively indistinguishable from those appurtenant to collective-bargaining negotiations. The District Court and the Court of Appeals concluded, and we agree, that they aid in those negotiations and enure to the direct benefit of members of the dissenters' unit. Further, they impose no additional burden upon First Amendment rights. [6] The union may properly charge petitioners for those costs.

The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Notes[edit]

^1  The statute provides:

"Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representative of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer. . . ." Mich.Comp.Laws § 423.211 (1978).

^2  The statute reads:

"[N]othing in this act or any in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative as defined in section 11 [§ 423.211] to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative. . . ." § 423.210.

^3  The agency-shop provision of the collective-bargaining agreement for 1981-1984 provided in pertinent part:

"A. Each employee covered by the negotiated Agreement between the Board of Control of Ferris State College and the Ferris Faculty Association (Dated November 19, 1981) shall, as a condition of employment, on or before thirty-one (31) days from the date of commencement of professional duties or July 1, 1981, whichever is later, join the Ferris Faculty Association or pay a service fee to the Association equivalent to the amount of dues uniformly required of members of the Ferris Faculty Association, less any amounts not permitted by law; provided, however, that the bargaining unit member may authorize payroll deduction for such fee. In the event that a bargaining unit member shall not pay such service fee directly to the Association or authorize payment through payroll deduction, the College shall, at the request of the Association, deduct the service fee from the bargaining unit member's salary and remit the same to the Association under the procedure provided below.

. . . . .

"D. Bargaining unit members paying the service fee provided for herein or whose service fees have been deducted by the College from their salaries may object to the use of their service fee for matters not permitted by law. The procedure for making such objections is that officially adopted by the Association. A copy of the Association policy will be provided by the Association upon a request of a bargaining unit member." Union defendants' Exh. I, § 2.6; see Lehnert v. Ferris Faculty Association-'MEA-NEA, 643 F.Supp. 1306, 1308, n. 3 (WD Mich.1986).

^4  The Michigan Employment Relations Commission-the state agency responsible for administering the Act-has reached the same conclusion in applying the statute to local affiliates of the MEA and the NEA. In determining that the involvement of the NEA and the MEA in local contract administration and grievance adjustment was a legitimate aspect of the local's service fee, the agency explained that "to restrict chargeability to only those activities directly relating to the local bargaining unit is to totally ignore the fact of affiliation." Bridgeport-Spaulding Community Schools, 1986 MERC Op. 1024, 1057. See also Garden City School District, 1978 MERC Op. 1145, 1155-1156. While the agency's conclusions of law are without effect upon this Court, we find persuasive its factual findings regarding the structure and operation of labor organizations within its jurisdiction.

^5  As relevant here, § 11 of the Act provides:

"Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer. . . ." Mich.Comp.Laws § 423.211 (1978).

Section 15 provides in pertinent part:

"[T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession." § 423.215.

^6  That Justice SCALIA's "statutory duties" test is unworkable is evidenced by the fact that he apparently is unwilling to apply it fully to the charges at issue in this case. He agrees with our determination that dissenting employees may be charged for the local's contribution to the collective-bargaining activities of state and national parent associations. Yet the parent organizations are not bound by statute or by contract to provide collective-bargaining support to the local. Nor is the local statutorily required to affiliate with or contribute to its larger parent associations. The Justice concludes, as do we, that there is "no reason to insist that, in order to be chargeable, on-call services for use in the bargaining process be committed by contract rather than by practice and usage." Post, at 561. But this conclusion appears to be out of line with his view that dissenters may be charged only for services that the State has required the union to provide. Under his analysis, that the benefits of affiliation as a practical matter may aid the local union in performing its "statutory duties" should be irrelevant. Thus, he would prohibit charges for strike preparations despite his admission that "visible preparations for a strike [may] strengthen the union's position in negotiations." Post, at 562. In our view, this inconsistency highlights the unfeasibility of Justice SCALIA's approach.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).