Petitioner Chicago Teachers Union has been the exclusive
collective bargaining representative of the Chicago Board of
Education's educational employees since 1967. Approximately 95% of
the employees are members of the Union. Until 1982, the members'
dues financed the entire cost of the Union's collective bargaining
and contract administration, and nonmembers received the benefits
of the Union's representation without making any contributions to
its cost. In an attempt to solve this "free rider" problem, the
Union and the Board entered into an agreement requiring the Board
to deduct "proportionate share payments" from nonmembers'
paychecks. The Union determined that the "proportionate share"
assessed on nonmembers was 95% of union dues, computed on the basis
of the Union's financial records. The Union also established a
procedure for considering nonmembers' objections to the deductions.
After the deduction was made, a nonmember could object by writing
to the Union President, and the objection would then meet a
three-stage procedure: (1) the Union's Executive Committee would
consider the objection and notify the objector within 30 days of
its decision; (2) if the objector disagreed with that decision and
appealed within another 30 days, the Union's Executive Board would
consider the objection; and (3) if the objector continued to
protest after the Executive Board's decision, the Union's President
would select an arbitrator. If an objection was sustained at any
stage, the remedy would be a reduction in future deductions and a
rebate for the objector. Respondent objecting nonmembers of the
Union brought suit in Federal District Court, challenging the Union
procedure on the grounds that it violated their First Amendment
rights to freedom of expression and association and their
Fourteenth Amendment due process rights and also permitted the use
of their proportionate shares for impermissible purposes. The
District Court rejected the challenges and upheld the procedure.
The Court of Appeals reversed, holding that the procedure was
constitutionally inadequate. The court rejected the Union's defense
that its subsequent adoption of an arrangement whereby it
voluntarily placed all of the objectors' agency fees in escrow
cured any constitutional defects.
Page 475 U. S. 293
Held:
1. Under an agency shop agreement, procedural safeguards are
necessary to prevent compulsory subsidization of ideological
activity by nonunion employees who object thereto while at the same
time not restricting the union's ability to require any employee to
contribute to the cost of collective bargaining activities. The
fact that nonunion employees' rights are protected by the First
Amendment requires that the procedure be carefully tailored to
minimize an agency shop's infringement on those rights. And the
nonunion employee must have a fair opportunity to identify the
impact on those rights and to assert a meritorious First Amendment
claim. Pp.
475 U. S.
301-304.
2. Here, the original Union procedure contained three
constitutional defects. First, it failed to minimize the risk that
nonunion employees' contributions might be temporarily used for
impermissible purposes. Second, it failed to provide nonmembers
with adequate information about the basis for the proportionate
share from which the advance deduction of dues was calculated. And
third, it failed to provide for a reasonably prompt decision by an
impartial decisionmaker. The nonunion employee, whose First
Amendment rights are affected by the agency shop itself and who
bears the burden of objecting, is entitled to have his objections
addressed in an expeditious, fair, and objective manner. Pp.
475 U. S.
304-309.
3. The Union's subsequent adoption of an escrow arrangement did
not cure all of these defects. Two still remain -- failure to
provide an adequate explanation for the advance reduction of dues
and to provide for a reasonably prompt decision by an impartial
decisionmaker. Pp.
475 U. S.
309-310.
743 F.2d 1187, affirmed.
STEVENS, J., delivered the opinion for a unanimous Court. WHITE,
J., filed a concurring opinion, in which BURGER, C.J., joined,
post, p.
475 U. S.
311.
Page 475 U. S. 294
JUSTICE STEVENS delivered the opinion of the Court.
In
Abood v. Detroit Board of Education, 431 U.
S. 209 (1977),
"we found no constitutional barrier to an agency shop agreement
between a municipality and a teacher's union insofar as the
agreement required every employee in the unit to pay a service fee
to defray the costs of collective bargaining, contract
administration, and grievance adjustment. The union, however, could
not, consistently with the Constitution, collect from dissenting
employees any sums for the support of ideological causes not
germane to its duties as collective bargaining agent."
Ellis v. Railway Clerks, 466 U.
S. 435,
466 U. S. 447
(1984). The
Ellis case was primarily concerned with the
need
"to define the line between union expenditures that all
employees must help defray and those that are not sufficiently
related to collective bargaining to justify their being imposed on
dissenters."
Ibid. In contrast, this case concerns the
constitutionality of the procedure adopted by the Chicago Teachers
Union, with the approval of the Chicago Board of Education, to draw
that necessary line and to respond to nonmembers' objections to the
manner in which it was drawn.
I
The Chicago Teachers Union has acted as the exclusive collective
bargaining representative of the Board's educational employees
continuously since 1967. Approximately 95% of the 27,500 employees
in the bargaining unit are members of the Union. Until December
1982, the Union members' dues financed the entire cost of the
Union's collective bargaining and contract administration.
Nonmembers received the benefits of the Union's representation
without making any financial contribution to its cost.
In an attempt to solve this "free rider" problem, the Union made
several proposals for a "fair share fee" clause in the labor
contract. Because the Illinois School Code did not expressly
authorize such a provision, the Board rejected these proposals
until the Illinois General Assembly amended the
Page 475 U. S. 295
School Code in 1981. [
Footnote
1] In the following year, the Chicago Teachers Union and the
Chicago Board of Education entered into an agreement requiring the
Board to deduct "proportionate share payments" from the paychecks
of nonmembers. The new contractual provision authorized the Union
to specify the amount of the payment; it stipulated that the amount
could not exceed the members' dues. The contractual provision also
required the Union to indemnify the Board for all action taken to
implement the new provision.
For the 1982-1983 school year, the Union determined that the
"proportionate share" assessed on nonmembers was 95% of union dues.
At that time, the union dues were $17.35 per month for teachers and
$12.15 per month for other covered employees; the corresponding
deduction from the nonmembers' checks thus amounted to $16.48 and
$11.54 for each of the 10 months that dues were payable.
Union officials computed the 95% fee on the basis of the Union's
financial records for the fiscal year ending on June 30, 1982. They
identified expenditures unrelated to collective bargaining and
contract administration (which they estimated as $188,549.82). They
divided this amount by the Union's income for the year ($4,
103,701.58) to produce a percentage of 4.6%; the figure was then
rounded off to 5% to provide a "cushion" to cover any inadvertent
errors.
Page 475 U. S. 296
The Union also established a procedure for considering
objections by nonmembers. Before the deduction was made, the
nonmember could not raise any objection. After the deduction was
made, a nonmember could object to the "proportionate share" figure
by writing to the Union President within 30 days after the first
payroll deduction. The objection then would meet a three-stage
procedure. First, the Union's Executive Committee would consider
the objection and notify the objector within 30 days of its
decision. Second, if the objector disagreed with that decision and
appealed within another 30 days, the Union's Executive Board would
consider the objection. Third, if the objector continued to protest
after the Executive Board decision, the Union President would
select an arbitrator from a list maintained by the Illinois Board
of Education. The Union would pay for the arbitration, and, if
there were multiple objections, they could be consolidated. If an
objection was sustained at any stage of the procedure, the remedy
would be an immediate reduction in the amount of future deductions
for all nonmembers and a rebate for the objector.
In October, 1982, the Union formally requested the Board to
begin making deductions, and advised it that a hearing procedure
had been established for nonmembers' objections. The Board accepted
the Union's 95% determination without questioning its method of
calculation and without asking to review any of the records
supporting it. The Board began to deduct the fee from the paychecks
of nonmembers in December, 1982. The Board did not provide the
nonmembers with any explanation of the calculation, or of the
Union's procedures. The Union did undertake certain informational
efforts. It asked its member delegates at all schools to distribute
flyers, display posters, inform nonmembers of the deductions, and
invite nonmembers to join the Union with an amnesty for past fines.
It also described the deduction and the protest procedures in the
December issue of the Union newspaper, which was distributed to
nonmembers.
Page 475 U. S. 297
Three nonmembers -- Annie Lee Hudson, K. Celeste Campbell, and
Walter Sherrill -- sent identical letters of protest to the Union
stating that they believed the Union was using part of their salary
for purposes unrelated to collective bargaining, and demanding that
the deduction be reduced. A fourth nonmember -- Beverly Underwood
-- objected to any deduction from her paycheck. The Union's
response to each of the four briefly explained how the
proportionate-share fee had been calculated, described the
objection procedure, enclosed a copy of the Union Implementation
Plan, and concluded with the advice that "any objection you may
file" would be processed in compliance with that procedure. None of
the letters was referred to the Executive Committee. Only Hudson
wrote a second letter; her request for detailed financial
information was answered with an invitation to make an appointment
for an "informational conference" at the Union's office, at which
she could review the Union's financial records. The four nonmembers
made no further effort to invoke the Union procedures; instead,
they challenged the new procedure in court.
In March, 1983, the four nonmembers, joined by three other
nonmembers who had not sent any letters, [
Footnote 2] filed suit in Federal District Court,
naming as defendants the Union, its officials, the Board, and the
Board members. They objected to the Union procedure for three
principal reasons: it violated their First Amendment rights to
freedom of expression and association; it violated their Fourteenth
Amendment due
Page 475 U. S. 298
process rights; and it permitted the use of their proportionate
shares for impermissible purposes. [
Footnote 3]
The District Court rejected the challenges.
573 F.
Supp. 1505 (ND Ill.1983). It first noted that the procedure
passed the initial threshold established by an earlier Seventh
Circuit opinion on the subject because the procedure itself was
fair; it represented a good faith effort by the Union; and it was
not unduly cumbersome. The District Court then rejected the First
Amendment objection because it found that the procedure was the
"least restrictive means" to protect the nonmembers' First
Amendment rights while also protecting the Union's legitimate
interest in promptly obtaining service fees from nonmembers. The
District Court also rejected the argument that the procedure
deprived the plaintiffs of property without due process because it
did not accept the plaintiffs' analogy to cases requiring
predeprivation hearings. Finally, the District Court refused to
reach the contention that the nonmembers' proportionate shares
were, in fact, being used for impermissible purposes. [
Footnote 4] The District Court found
that only two of the plaintiffs (Hudson and Underwood) had validly
invoked the Union procedure; that only those two were thus entitled
to rebates if their objections were sustained; and that any
assessment of the permissible use of the funds should await the
outcome of the Union procedure.
Page 475 U. S. 299
The posture of the case changed significantly in the Court of
Appeals. The plaintiffs no longer focused on the claim that
particular expenditures were inappropriate; they concentrated their
attack on the procedure used by the Union to determine the amount
of the deductions and to respond to their objections. [
Footnote 5] The Union also modified its
position. Instead of defending the procedure upheld by the District
Court, it advised the Court of Appeals that it had voluntarily
placed all of the dissenters' agency fees in escrow, and thereby
avoided any danger that respondents' constitutional rights would be
violated.
The Court of Appeals was unanimous in its judgment reversing the
District Court. 743 F.2d 1187 (CA7 1984). All three judges agreed
that the Constitution requires the Union to follow a procedure that
protects the nonmembers from being compelled to subsidize political
or ideological activities not germane to the collective bargaining
process, that the Union's objection procedure was inadequate, and
that any rebate which allowed the Union temporary use of money for
activities that violate the nonmembers' rights was
unconstitutional. In his concurring opinion, however, Judge Flaum
declined to reach certain questions discussed by the majority.
Specifically, the majority concluded that the category of
impermissible expenditures included all those that were not germane
to collective bargaining, even if they might not be characterized
as "political or ideological." Judge Flaum found it unnecessary to
reach this constitutional issue because the procedure could be
deemed inadequate without deciding it and because, in his view, the
collective bargaining agreement and the Illinois statute limited
agency shop fees to collective bargaining and representational
expenses. However,
Page 475 U. S. 300
the majority believed that its conclusion derived from the fact
that the possible infringement on the "liberty" of the nonmembers
was not limited to the forced subsidization of political or
ideological views, but also included the negative dimension of the
freedom of association.
Determining that the Union's existing procedure was
constitutionally inadequate, and that the Union "must go back to
the drawing board,"
id. at 1196, the majority suggested
that the "constitutional minimum" of any revised procedure must
include
"fair notice, a prompt administrative hearing before the Board
of Education or some other state or local agency -- the hearing to
incorporate the usual safeguards for evidentiary hearings before
administrative agencies -- and a right of judicial review of the
agency's decision. The combination of an internal union remedy and
an arbitration procedure is unlikely to satisfy constitutional
requirements, given the nature of the issues to be decided and the
union's stake in how they are decided."
Ibid. [
Footnote
6]
In response to the Union's advice that it had voluntarily placed
dissenters' agency fees in escrow, the majority noted that the
Union had made no commitment to continue the escrow in the future,
had not indicated the terms of the escrow, and, in all events,
"[t]he terms cannot be left entirely up to the Union."
Id.
at 1197.
The importance of the case, and the divergent approaches of
other courts to the issue, [
Footnote 7] led us to grant certiorari, 472
Page 475 U. S. 301
U.S. 1007 (1985). We affirm the judgment of the Court of
Appeals, but we do not find it necessary to resolve all of the
questions discussed in its opinion.
III
In
Abood v. Detroit Board of Education, 431 U.
S. 209 (1977), we recognized that requiring nonunion
employees to support their collective bargaining representative
"has an impact upon their First Amendment interests,"
id.
at
431 U. S. 222,
and may well "interfere in some way with an employee's freedom to
associate for the advancement of ideas, or to refrain from doing
so, as he sees fit,"
ibid. See also id. at
431 U. S. 255
(POWELL, J., concurring in judgment). We nevertheless rejected the
claim that it was unconstitutional for a public employer to
designate a union as the exclusive collective bargaining
representative of its employees, and to require nonunion employees,
as a condition of employment, to pay a fair share of the union's
cost of negotiating and administering a collective bargaining
agreement. [
Footnote 8] We also
held, however, that nonunion employees do have a constitutional
right to
Page 475 U. S. 302
"prevent the Union's spending a part of their required service
fees to contribute to political candidates and to express political
views unrelated to its duties as exclusive bargaining
representative."
Id. at
431 U. S. 234.
[
Footnote 9]
The question presented in this case is whether the procedure
used by the Chicago Teachers Union and approved by the Chicago
Board of Education adequately protects the basic distinction drawn
in
Abood.
"[T]he objective must be to devise a way of preventing
compulsory subsidization of ideological activity by employees who
object thereto without restricting the Union's ability to require
every employee to contribute to the cost of collective bargaining
activities."
Id. at
431 U. S.
237.
Procedural safeguards are necessary to achieve this objective
for two reasons. First, although the government interest
Page 475 U. S. 303
in labor peace is strong enough to support an "agency shop"
[
Footnote 10]
notwithstanding its limited infringement on nonunion employees'
constitutional rights, the fact that those rights are protected by
the First Amendment requires that the procedure be carefully
tailored to minimize the infringement. [
Footnote 11] Second, the nonunion employee -- the
individual whose First Amendment rights are being affected -- must
have a fair opportunity to identify the impact of the governmental
action on his interests and to assert a meritorious First Amendment
claim. [
Footnote 12]
In
Ellis v. Railway Clerks, 466 U.S. at
466 U. S. 443,
we determined that, under the Railway Labor Act, a "pure rebate
approach
Page 475 U. S. 304
is inadequate." We explained that, under such an approach, in
which the union refunds to the non-union employee any money to
which the union was not entitled, "the union obtains an involuntary
loan for purposes to which the employee objects."
Id. at
466 U. S. 444.
We noted the possibility of "readily available alternatives, such
as advance reduction of dues and/or interest-bearing escrow
accounts,"
ibid., but, for purposes of that case, it was
sufficient to strike down the rebate procedure.
In this case, we must determine whether the challenged Chicago
Teachers Union procedure survives First Amendment scrutiny, either
because the procedure upheld by the District Court was
constitutionally sufficient or because the subsequent adoption of
an escrow arrangement cured any constitutional defect. We consider
these questions in turn. [
Footnote 13]
IV
The procedure that was initially adopted by the Union and
considered by the District Court contained three fundamental
Page 475 U. S. 305
flaws. [
Footnote 14]
First, as in
Ellis, a remedy which merely offers
dissenters the possibility of a rebate does not avoid the risk that
dissenters' funds may be used temporarily for an improper
purpose.
"[T]he Union should not be permitted to exact a service fee from
nonmembers without first establishing a procedure which will avoid
the risk that their funds will be used, even temporarily, to
finance ideological activities unrelated to collective
bargaining."
Abood, 431 U.S. at
431 U. S. 244
(concurring opinion). The amount at stake for each individual
dissenter does not diminish this concern. For, whatever the amount,
the quality of respondents' interest in not being compelled to
subsidize the propagation of political or ideological views that
they oppose is clear. In
Abood, we emphasized this point
by quoting the comments of Thomas Jefferson and James Madison about
the tyrannical character of forcing an individual to contribute
even "three pence" for the "propagation of opinions which he
disbelieves." [
Footnote 15]
A forced exaction followed by a rebate equal to the amount
improperly
Page 475 U. S. 306
expended is thus not a permissible response to the nonunion
employees' objections.
Second, the "advance reduction of dues" was inadequate because
it provided nonmembers with inadequate information about the basis
for the proportionate share. In
Abood, we reiterated that
the nonunion employee has the burden of raising an objection, but
that the union retains the burden of proof:
"'since the unions possess the facts and records from which the
proportion of political to total union expenditures can reasonably
be calculated, basic considerations of fairness compel that they,
not the individual employees, bear the burden of proving such
proportion.'"
Abood, 431 U.S. at
431 U. S.
239-240, n. 40, quoting
Railway Clerks v.
Allen, 373 U. S. 113,
373 U. S. 122
(1963). [
Footnote 16] Basic
considerations of fairness, as well as concern for the First
Amendment rights at stake, also dictate that the potential
objectors be given sufficient information to gauge the propriety of
the union's fee. Leaving the nonunion employees in the dark about
the source of the figure for the agency fee -- and requiring them
to object in order to receive information -- does not adequately
protect the careful distinctions drawn in
Abood. [
Footnote 17]
In this case, the original information given to the nonunion
employees was inadequate. Instead of identifying the expenditures
for collective bargaining and contract administration
Page 475 U. S. 307
that had been provided for the benefit of nonmembers as well as
members -- and for which nonmembers as well as members can fairly
be charged a fee -- the Union identified the amount that it
admittedly had expended for purposes that did not benefit
dissenting nonmembers. An acknowledgment that nonmembers would not
be required to pay any part of 5% of the Union's total annual
expenditures was not an adequate disclosure of the reasons why they
were required to pay their share of 95%. [
Footnote 18]
Finally, the original Union procedure was also defective because
it did not provide for a reasonably prompt decision by an impartial
decisionmaker. Although we have not so specified in the past,
[
Footnote 19] we now
conclude that such a requirement is necessary. The nonunion
employee, whose First Amendment rights are affected by the agency
shop itself and who bears the burden of objecting, is entitled to
have his objections addressed in an expeditious, fair, and
objective manner. [
Footnote
20]
Page 475 U. S. 308
The Union's procedure does not meet this requirement. As the
Seventh Circuit observed, the
"most conspicuous feature of the procedure is that, from start
to finish, it is entirely controlled by the union, which is an
interested party, since it is the recipient of the agency fees paid
by the dissenting employees."
743 F.2d at 1194-1195. The initial consideration of the agency
fee is made by Union officials, and the first two steps of the
review procedure (the Union Executive Committee and Executive
Board) consist of Union officials. The third step -- review by a
Union-selected arbitrator -- is also inadequate, because the
selection represents the Union's unrestricted choice from the state
list. [
Footnote 21]
Page 475 U. S. 309
Thus, the original Union procedure was inadequate because it
failed to minimize the risk that nonunion employees' contributions
might be used for impermissible purposes, because it failed to
provide adequate justification for the advance reduction of dues,
and because it failed to offer a reasonably prompt decision by an
impartial decisionmaker.
V
The Union has not only created an escrow of 100% of the
contributions exacted from the respondents, but has also advised us
that it would not object to the entry of a judgment compelling it
to maintain an escrow system in the future. The Union does not
contend that its escrow has made the case moot. Rather, it takes
the position that, because a 100% escrow completely avoids the risk
that dissenters' contributions could be used improperly, it
eliminates any valid constitutional objection to the procedure, and
thereby provides an adequate remedy in this case. We reject this
argument.
Although the Union's self-imposed remedy eliminates the risk
that nonunion employees' contributions may be temporarily used for
impermissible purposes, the procedure remains flawed in two
respects. It does not provide an adequate explanation for the
advance reduction of dues, and it does not provide a reasonably
prompt decision by an impartial decisionmaker. We reiterate that
these characteristics are required because the agency shop itself
impinges on the nonunion employees' First Amendment interests, and
because the nonunion employee has the burden of objection. The
appropriately justified advance reduction and the prompt, impartial
decisionmaker are necessary to minimize both the impingement and
the burden. [
Footnote
22]
Page 475 U. S. 310
We need not hold, however, that a 100% escrow is
constitutionally required. Such a remedy has the serious defect of
depriving the Union of access to some escrowed funds that it is
unquestionably entitled to retain. If, for example, the original
disclosure by the Union had included a certified public
accountant's verified breakdown of expenditures, including some
categories that no dissenter could reasonably challenge, there
would be no reason to escrow the portion of the nonmember's fees
that would be represented by those categories. [
Footnote 23] On the record before us, there
is no reason to believe that anything approaching a 100% "cushion"
to cover the possibility of mathematical errors would be
constitutionally required. Nor can we decide how the proper
contribution that might be made by an independent audit, in
advance, coupled with adequate notice, might reduce the size of any
appropriate escrow.
Thus, the Union's 100% escrow does not cure all of the problems
in the original procedure. Two of the three flaws remain, and the
procedure therefore continues to provide less than the Constitution
requires in this context.
VI
We hold today that the constitutional requirements for the
Union's collection of agency fees include an adequate explanation
of the basis for the fee, a reasonably prompt opportunity to
challenge the amount of the fee before an impartial decisionmaker,
and an escrow for the amounts reasonably in dispute while such
challenges are pending.
The determination of the appropriate remedy in this case is a
matter that should be addressed in the first instance by the
District Court. The Court of Appeals correctly reversed the
Page 475 U. S. 311
District Court's original judgment and remanded the case for
further proceedings. That judgment of reversal is affirmed, and
those further proceedings should be consistent with this
opinion.
It is so ordered.
[
Footnote 1]
The statute, which became effective on August 1, 1981,
provided:
"Where a collective bargaining agreement is entered into with an
employee representative organization, the school board may include
in the agreement a provision requiring employees covered by the
agreement who are not members of the representative organization to
pay their proportionate share of the cost of the collective
bargaining process and contract administration, measured by the
amount of dues uniformly required by members. In such case,
proportionate share payments shall be deducted by the board from
the earnings of the non-member employees and paid to the
representative organization."
Ill.Rev.Stat., ch. 122, � 10-22.40a (1983).
That statute has now been superseded by the Illinois Educational
Labor Relations Act, Ill.Rev.Stat., ch. 48, � 1701
et seq.
(Supp.1984).
[
Footnote 2]
The three other nonmembers were Estherlene Holmes, Edna Rose
McCoy, and Dr. Debra Ann Petitan. For an unknown reason,
proportionate shares had not been deducted from McCoy's paycheck.
573 F.
Supp. 1505, 1509, n. 6 (ND Ill.1983). Proportionate shares had,
however, been deducted from the paychecks of the other six
plaintiffs.
Id. at 1509.
[
Footnote 3]
Respondents relied on 42 U.S.C. § 1983 as a basis for their
federal constitutional claims. They also alleged pendent state
claims. The District Court rejected the pendent claims, and
respondents have not pursued them. Similarly, respondents mounted a
facial attack on the Illinois statute as violative of the First
Amendment and the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. The District Court also rejected this facial
attack.
[
Footnote 4]
The plaintiffs had challenged, for instance, the Union's 95%
calculation because more than half of the Union's income
($2,167,000 of an income of $4,103,701.58) was passed on to
affiliated state and national labor organizations. The plaintiffs
claimed that some of this money was expended for political or
ideological activities.
[
Footnote 5]
"The unusual feature of this case is that the plaintiffs, while
objecting in passing to particular uses of the agency fee, make
almost their whole attack on the procedure for determining how much
shall be deducted."
743 F.2d 1187, 1191 (CA7 1984). Respondents do not dispute this
assessment.
[
Footnote 6]
Presumably because the First Amendment arguments were
dispositive, neither the majority nor the concurrence mentioned the
plaintiffs' objections that they were being deprived of property
without due process. The majority viewed its freedom of association
analysis in terms of the due process required for a deprivation of
liberty. Like the District Court, moreover, the Seventh Circuit
rejected the facial challenge to the constitutionality of the
Illinois statute.
[
Footnote 7]
See, e.g., Robinson v. New Jersey, 741 F.2d 598 (CA3
1984),
cert. denied, 469 U.S. 1228 (1985);
Kempner v.
Dearborn Local 2077, 126 Mich. App. 452, 337 N.W.2d 354
(1983),
appeal dism'd, 469 U.S. 926 (1984);
White
Cloud Education Assn. v. Board of Education, 101 Mich.App.
309, 300 N.W.2d 551 (1980),
appeal dism'd, 469 U.S. 875
(1984);
School Committee of Greenfield v. Greenfield Education
Assn., 385 Mass. 70,
431
N.E.2d 180 (1982);
Association of Capitol Powerhouse
Engineers v. Division of Building and Grounds, 89 Wash. 2d
177,
570 P.2d
1042 (1977).
[
Footnote 8]
Earlier cases had construed the Railway Labor Act to permit a
similar arrangement without violating the Constitution.
See
Railway Clerks v. Allen, 373 U. S. 113
(1963);
Machinists v. Street, 367 U.
S. 740 (1961);
Railway Employees v. Hanson,
351 U. S. 225
(1956). In
Abood, we emphasized that those cases reflected
the important "principle of exclusive union representation," 431
U.S. at
431 U. S. 220,
and that they accorded great weight to the congressional judgment
that
"it would promote peaceful labor relations to permit a union and
an employer to conclude an agreement requiring employees who obtain
the benefit of union representation to share its cost."
Id. at
431 U. S. 219.
See also Ellis v. Railway Clerks, 466 U.
S. 435,
466 U. S.
455-456 (1984) ("[B]y allowing the union shop at all, we
have already countenanced a significant impingement on First
Amendment rights. . . . It has long been settled that such
interference with First Amendment rights is justified by the
governmental interest in industrial peace").
[
Footnote 9]
We explained that this right is firmly grounded in the First
Amendment:
"The fact that the appellants are compelled to make, rather than
prohibited from making, contributions for political purposes works
no less an infringement of their constitutional rights. For at the
heart of the First Amendment is the notion that an individual
should be free to believe as he will, and that, in a free society,
one's beliefs should be shaped by his mind and his conscience,
rather than coerced by the State.
See Elrod v. Burns, [427
U.S.] at
427 U. S. 356-357;
Stanley v. Georgia, 394 U. S. 557,
394 U. S.
565;
Cantwell v. Connecticut, 310 U. S.
296,
310 U. S. 303-304. . .
."
"
* * * *"
"These principles prohibit a State from compelling any
individual to affirm his belief in God,
Torcaso v.
Watkins, 367 U. S. 488, or to associate
with a political party,
Elrod v. Burns, supra; see 427
U.S. at
427 U. S. 363-364, n. 17, as
a condition of retaining public employment. They are no less
applicable to the case at bar, and they thus prohibit the appellees
from requiring any of the appellants to contribute to the support
of an ideological cause he may oppose as a condition of holding a
job as a public school teacher."
431 U.S. at
431 U. S.
234-235 (footnote omitted).
We also emphasized that freedom of association, as well as
freedom of expression, supported our conclusion.
See id.
at
431 U. S. 233.
See also Roberts v. United States Jaycees, 468 U.
S. 609,
468 U. S. 623
(1984) (citing
Abood for the principle that "[f]reedom of
association . . . plainly presupposes a freedom not to
associate").
[
Footnote 10]
Under an "agency shop" arrangement, a union that acts as
exclusive bargaining representative may charge nonunion members,
who do not have to join the union or pay union dues, a fee for
acting as their bargaining representative. R. Gorman, Basic Text on
Labor Law 642 (1976).
[
Footnote 11]
See Roberts v. United States Jaycees, supra, at
468 U. S. 623
(Infringements on freedom of association "may be justified by
regulations adopted to serve compelling state interests, unrelated
to the suppression of ideas, that cannot be achieved through means
significantly less restrictive of associational freedoms");
Elrod v. Burns, 427 U. S. 347,
427 U. S. 363
(1976) (government means must be "least restrictive of freedom of
belief and association");
Kusper v. Pontikes, 414 U. S.
51,
414 U. S. 58-59
(1973) ("[E]ven when pursuing a legitimate interest, a State may
not choose means that unnecessarily restrict constitutionally
protected liberty");
NAACP v. Button, 371 U.
S. 415,
371 U. S. 438
(1963) ("Precision of regulation must be the touchstone" in the
First Amendment context).
[
Footnote 12]
"[P]rocedural safeguards often have a special bite in the First
Amendment context." G. Gunther, Cases and Materials on
Constitutional Law 1373 (10th ed.1980). Commentators have discussed
the importance of procedural safeguards in our analysis of
obscenity, Monaghan, First Amendment "Due Process," 83 Harv.L.Rev.
518, 520-524 (1970); overbreadth, L. Tribe, American Constitutional
Law 734-736 (1978); vagueness, Gunther,
supra, at 1373, n.
2, and 1185-1195; and public forum permits, Blasi, Prior Restraints
on Demonstrations, 68 Mich.L.Rev. 1481, 1534-1572 (1970). The
purpose of these safeguards is to insure that the government treads
with sensitivity in areas freighted with First Amendment concerns.
See generally Monaghan,
supra, at 551 ("The first
amendment due process cases have shown that first amendment rights
are fragile, and can be destroyed by insensitive procedures").
[
Footnote 13]
Respondents argue that this case should be considered through
the prism of the procedural due process protections necessary for
deprivations of property. As in
Abood, we analyze the
problem from the perspective of the First Amendment concerns. We
are convinced that, in this context, the procedures required by the
First Amendment also provide the protections necessary for any
deprivation of property.
Moreover, in view of the fact that the First Amendment
principles identified in
Abood require procedural
safeguards, and in view of the fact that respondents' challenge is
to the procedure, not the expenditures, we find it unnecessary to
resolve any question concerning nongermane, nonideological
expenditures. Unlike the Seventh Circuit, we are not convinced that
resolution of the constitutional nongermaneness question will lead
to appreciably different procedural requirements, and we thus find
no need to reach that constitutional question.
See Rescue Army
v. Municipal Court, 331 U. S. 549,
331 U. S.
568-572 (1947).
Cf. Ellis v. Railway Clerks,
466 U. S. 435
(1984) (analyzing specific challenged expenditures under the
Railway Labor Act and, as necessary, under the First
Amendment).
[
Footnote 14]
Like the Seventh Circuit, we consider the procedure as it was
presented to the District Court. It is clear that "voluntary
cessation of allegedly illegal conduct does not moot a case."
United States v. Concentrated Phosphate Export Assn.,
Inc., 393 U. S. 199,
393 U. S. 203
(1968).
See also City of Mesquite v. Aladdin's Castle,
Inc., 455 U. S. 283,
455 U. S. 289
(1982);
United States v. W. T. Grant Co., 345 U.
S. 629,
345 U. S. 632
(1953). The same concerns -- the fear that a defendant would be
"free to return to his old ways,"
ibid., and that he would
have "a powerful weapon against public law enforcement,"
ibid. -- dictate that we review the legality of the
practice defended before the District Court.
[
Footnote 15]
"James Madison, the First Amendment's author, wrote in defense
of religious liberty:"
"Who does not see . . . [t]hat the same authority which can
force a citizen to contribute three pence only of his property for
the support of any one establishment may force him to conform to
any other establishment in all cases whatsoever?"
"2 The Writings of James Madison 186 (G. Hunt ed.1901). Thomas
Jefferson agreed that 'to compel a man to furnish contributions of
money for the propagation of opinions which he disbelieves is
sinful and tyrannical.' I. Brant, James Madison: The Nationalist
354 (1948)."
Abood, 431 U.S. at
431 U. S.
234-235, n. 31.
[
Footnote 16]
The nonmember's "burden" is simply the obligation to make his
objection known.
See Machinists v. Street, 367 U.S. at
367 U. S. 774
("[D]issent is not to be presumed -- it must affirmatively be made
known to the union by the dissenting employee");
Railway Clerks
v. Allen, 373 U.S. at
373 U. S. 119;
Abood, 431 U.S. at
431 U. S.
238.
[
Footnote 17]
Although public sector unions are not subject to the disclosure
requirements of the Labor-Management Reporting and Disclosure Act,
see 29 U.S.C. § 402(e), the fact that private sector
unions have a duty of disclosure suggests that a limited notice
requirement does not impose an undue burden on the union. This is
not to suggest, of course, that the information required by that
Act,
see 29 U.S.C. § 431(b); 29 CFR § 403.3 (1986), is
either necessary or sufficient to satisfy the First Amendment
concerns in this context.
[
Footnote 18]
We continue to recognize that there are practical reasons why
"[a]bsolute precision" in the calculation of the charge to
nonmembers cannot be "expected or required."
Allen, 373
U.S. at
373 U. S. 122,
quoted in
Abood, 431 U.S. at
431 U. S.
239-240, n. 40. Thus, for instance, the Union cannot be
faulted for calculating its fee on the basis of its expenses during
the preceding year. The Union need not provide nonmembers with an
exhaustive and detailed list of all its expenditures, but adequate
disclosure surely would include the major categories of expenses,
as well as verification by an independent auditor. With respect to
an item such as the Union's payment of $2,167,000 to its affiliated
state and national labor organizations,
see n 4,
supra, for instance, either a
showing that none of it was used to subsidize activities for which
nonmembers may not be charged, or an explanation of the share that
was so used was surely required.
[
Footnote 19]
Our prior opinions have merely suggested the desirability of an
internal union remedy.
See Abood, supra, at
431 U. S. 240,
and n. 41;
Allen, supra, at
373 U. S.
122.
[
Footnote 20]
We reject the Union's suggestion that the availability of
ordinary judicial remedies is sufficient. This contention misses
the point. Since the agency shop itself is "a significant
impingement on First Amendment rights,"
Ellis, 466 U.S. at
466 U. S. 455,
the government and union have a responsibility to provide
procedures that minimize that impingement and that facilitate a
nonunion employee's ability to protect his rights. We are
considering here the procedural adequacy of the agency shop
arrangement itself; we presume that the courts remain available as
the ultimate protectors of Constitutional rights.
In other First Amendment contexts, of course, we have required
swift judicial review of the challenged governmental action.
See, e.g., Southeastern Promotions, Ltd. v. Conrad,
420 U. S. 546
(1976);
Blount v. Rizzi, 400 U. S. 410
(1971);
Freedman v. Maryland, 380 U. S.
51 (1965). I n this context, we do not believe that such
special judicial procedures are necessary. Clearly, however, if a
State chooses to provide extraordinarily swift judicial review for
these challenges, that review would satisfy the requirement of a
reasonably prompt decision by an impartial decisionmaker.
[
Footnote 21]
We do not agree, however, with the Seventh Circuit that a
full-dress administrative hearing, with evidentiary safeguards, is
part of the "constitutional minimum." Indeed, we think that an
expeditious arbitration might satisfy the requirement of a
reasonably prompt decision by an impartial decisionmaker, so long
as the arbitrator's selection did not represent the Union's
unrestricted choice. In contrast to the Union's procedure here,
selection of an arbitrator frequently does not represent one
party's unrestricted choice from a list of state-approved
arbitrators.
See F. Elkouri & E. Elkouri, How
Arbitration Works 135-137 (4th ed.1985); O. Fairweather, Practice
and Procedure in Labor Arbitration 79-90 (2d ed.1981).
The arbitrator's decision would not receive preclusive effect in
any subsequent § 1983 action.
See McDonald v. West Branch,
466 U. S. 284
(1984).
[
Footnote 22]
In view of the fact that plaintiffs established a constitutional
violation, moreover, the task of fashioning a proper remedy is one
that should be performed by the District Court after all interested
parties have had an opportunity to be heard. The judicial remedy
for a proven violation of law will often include commands that the
law does not impose on the community at large.
See National
Society of Professional Engineers v. United States,
435 U. S. 679,
435 U. S.
697-698 (1978);
Swann v. Charlotte-Mecklenburg Board
of Education, 402 U. S. 1,
402 U. S. 15-16
(1971).
[
Footnote 23]
If the Union chooses to escrow less than the entire amount,
however, it must carefully justify the limited escrow on the basis
of the independent audit, and the escrow figure must itself be
independently verified.
JUSTICE WHITE, with whom the THE CHIEF JUSTICE joins,
concurring.
I join the opinion and judgment of the Court with the following
observations. First, since the Court, as did Judge Flaum in the
Court of Appeals, deems it unnecessary to reach the issue of
nongermane, nonideological expenditures, the panel's remarks on the
subject are therefore obvious dicta. Under our cases, they are also
very questionable.
Second, as I understand the Court's opinion, the complaining
nonmember need only complain; he need not exhaust internal union
hearing procedures, if any, before going to arbitration. However,
if the union provides for arbitration and complies with the other
requirements specified in our opinion, it should be entitled to
insist that the arbitration procedure be exhausted before resorting
to the courts.