The U.S. Supreme Court recently issued its opinion in Locke v. Karass. Key points to consider include:

  • U.S. Supreme Court holds that local unions can charge employees in a bargaining unit who are not members of the union for litigation that is conducted by a national union and that provides no direct benefit to the local that charges the fee.
  • Holding is only applicable in states where local unions are already permitted to charge fees to non-members (non-"right-to-work" states).
  • Charges to non-union members for "national litigation" are only permitted where the litigation is not political or ideological and where the litigation arrangement between the local and the national is reciprocal, e.g., where the local could ask the national for litigation assistance if the need arose.

In many states, local unions are permitted to charge a fee to employees in a bargaining unit who are not members of the union, as long as the money does not fund political activity. Local unions are also permitted to pay a portion of such fees to their national union organizations, as long as the national union also does not use the money for political activity. Until recently, however, the Supreme Court had not definitively answered the question of whether local unions could charge non-members for the costs of litigation that is conducted by a national union and that provides no direct benefit to the local that charges the fee. The Supreme Court has now answered this question in the affirmative, holding that local unions may charge non-members for so-called "national litigation," in states where charges to non-members are otherwise permitted. Like other charges to non-members, such charges must not be for political or ideological litigation. In addition, the litigation arrangement with the national union must be "reciprocal," so that the local could call on the national's litigation resources if needed. As a result of this new Supreme Court opinion, unions might begin requesting such fees, and employers in non-"right-to-work" states are permitted to include them in collective bargaining agreements.

Locke arose from one aspect of the state of Maine's requirement that government employees pay a service fee to the local union that acts as their exclusive bargaining representative, even if the employees are not members of the union. Specifically, a portion of the non-members' service fee represents an affiliation fee that the local union pays to its national union organization. A portion of that fee funds litigation that directly benefits other local unions or the national union itself, but does not directly benefit the local union that charges the fee.

A group of non-union-member public employees challenged this fee, arguing that requiring them to fund litigation that does not directly benefit their bargaining unit's own local violates their First Amendment rights.

Justice Breyer found that the Court's prior opinions in this area framed the issue. Specifically, the Court has clearly held, in a series of opinions, that the First Amendment permits a local union that is the exclusive collective-bargaining representative for a particular unit to charge employees a service fee as a condition of their continued employment, even where the employees choose not to be members of the union

The First Amendment does, however, place limits on the uses of such fees. The local union may require non-members to pay for expenditures that relate to the union's duties as an exclusive bargaining representative, including negotiating and administering collective bargaining agreements and adjusting grievances and disputes. But the First Amendment also prohibits requiring non-union-members to fund political or ideological activities with which they disagree. The local may charge non-members for social events and publications, for example, only to the extent that those activities are not devoted to political causes.

The Court relied primarily on its 1991 decision in Lehnert v. Ferris Faculty Association. In that case, the issue was whether a local union may charge non-member bargaining-unit employees for the local's payment to a national union organization for activities that do not directly benefit the local. The Court held that a local union may charge non-member employees for a share of the costs associated with activities undertaken by the local's state and national affiliates, even if those activities do not directly benefit the local bargaining unit, where the activities would be "otherwise chargeable" if undertaken by the local itself. The Court tempered this holding by explaining that there must, nevertheless, be some indication that the payment to the national union is for services that may ultimately benefit the members of the local by virtue of its membership in the state or national union organization.

After reaching this general holding, which was supported by five of the nine Justices, the Lehnert Court broke into three distinct factions, none of which constituted a majority, on the issue of whether local unions may charge non-members for litigation that does not directly benefit the particular charging local unit. Faced with only a plurality opinion on that issue, the Courts of Appeal subsequently split, leading the Court to take up the issue again in Locke.

In a unanimous opinion, the Locke Court applied the Lehnert standard to so-called "national litigation," finding no reason to apply a different standard to litigation than applies to other national activities like conventions or publications. Specifically, the Court held that a local union may charge a non-member for a share of the local's contribution to a national union's litigation expenses if:

  1. the subject matter of the "national litigation" bears an "appropriate" relation to collective bargaining, i.e., is not political or ideological; and
  2. the arrangement is reciprocal, i.e., the local's payment to the national is for services that might ultimately benefit the members of the local by virtue of its membership in the national organization.

Although there was no claim that the national union treated the local union "any differently from other locals," the Court's opinion seems to indicate that the requisite reciprocity could exist, not only where the funded litigation benefits the national itself, but also where it solely benefits other bargaining units, if the national's litigation resources are likewise available to the charging local should the need arise. However, in a concurrence joined by Chief Justice Roberts and Justice Scalia, Justice Alito states that the Court's opinion does not reach the question of what "reciprocity" means. The parties in Locke had agreed that reciprocity existed in that case, and so the question of what constituted "reciprocity" was not before the Court. The definition of "reciprocity" in connection with the chargeability of extra-unit litigation expenses may be subject to further development by the lower courts. Still, public sector unions are breathing a sigh of relief that that the costs of national litigation may be allowed to be charged to non-union members, provided such litigation meets the relevant standards for charging other national expenditures that the Lehnert court previously enunciated.