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High Court Hears Arguments in Case Challenging Non-Union Employee Fees

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WASHINGTON--Teachers' unions L violate non-members rights to free dom of speech and association when they use the fees that non-members are compelled to pay for activities unrelated to local collective barL gaining, a lawyer for six Michigan college instructors told the U.S. Su preme Court last week.

But the chief lawyer for the Na tional Education Association counH tered that such compulsory "agency fees" are the financial lifeblood of or ganized labor.

The lawyers offered those oppos ing views as the High Court took up Lehnert v. Ferris Faculty Association (Case No. 89-1217), a case being L watched closely by educators and L teachers' unions. The Michigan col lege-faculty members brought the L suit against their collective-barL gaining unit and its parent organi zations, the Michigan Education As sociation and the NEA

"When you get outside that nar row special process of collective bar gaining, you're infringing on a core First Amendment right" by spend ing non-members' fees on political and other activities, Raymond J. LaH Jeunesse Jr., the attorney for the dissident, non-union faculty mem bers, told the Court.

"If you don't draw the line, ... L what are the limits?" asked Mr. LaH Jeunesse, a lawyer with the Nation al Right to Work Legal Defense L Foundation Inc.

But Robert H. Chanin, the gener al counsel of the national teachers' union, argued that James P. LehH nert and his colleagues at Ferris L State College simply "are L wrong" in their objections and that their reading of the situation "total ly misses the point of affiliation."

"The vast bulk of the affiliation fee" charged to members of the barH gaining unit who do not belong to the union, he said, supports the abil ity of the state and national organi zations to be ready when the unit re quires assistance.

Comparing the system to that of insurance, Mr. Chanin maintained that "when I affiliate with these L larger organizations, I get someL thing. In order to be there when I need them, those parent organiza tions must maintain themselves."

In a brief filed with the Court, Mr. LaJeunesse noted that through aLtive-bargaining agreement, L the plaintiffs' employer deducted L from the paychecks of the non-union employees a fee comparable to the union dues paid by members. Non- members were included in the bar gaining unit, but objected to use of their fees for purposes not directly related to working conditions at the Michigan college.

Activities challenged included use of non-members' fees for lobbying, L electoral politics, public relations, L and preparations for illegal strikes, according to Mr. LaJeunesse.

Thus, his brief stated, the basis of the non-union faculty members' suit is "that the freedoms of speech, L thought, conscience, assembly, peti tion, and association secured to L them by the First and 14th Amend ments are violated to the extent that the fee includes the costs of such oth er activities."

Furthermore, he wrote, "coerced L subsidies for lobbying clearly consti tute substantial interference with L First Amendment rights beyond that inherent in support of a bargaining agent's dealing with the employer on labor-management issues."

During oral arguments, Mr. LaH Jeunesse questioned union "politi cal and ideological activitities that are not part of the bargaining pro cess, anywhere." His examples in cluded union lobbying on a local tax issue and an NEA study of school finance in Arizona.

"I would not think that's political or ideological," Chief Justice WilL liam H. Rehnquist said of the Arizo na study.

Mr. LaJeunesse answered that a "bright line" test exists, and that "if an activity is either outside the bar gaining process or does not concern the bargaining unit," then no com pelling governmental interest is L found sufficient to warrant intrud ing on employee rights.

Moreover, he told the Court, legal precedents have noted that "requir ing financial contributions ... is L tantamount to coercion" against L free speech.

Under further questioning from the bench, Mr. LaJeunesse agreed that his position supported "piece by piece" payments for allowable union needs.

Mr. Chanin of the NEA argued that the parent unions "constitute a pool of resources" to be tapped when the local unit needs help. Fees "are used to assemble and maintain" the parent organizations so ''we can do our day-to-do services."

"The issue is not whether the pay- as-you-go delivery system is consti tutional," he said, but whether the Constitution demands it.

The non-union faculty members "contend that this multi-unit, cost- sharing system" that unions use L "violates their First Amendment L rights," Mr. Chanin said. "We are aware of no First Amendment prin ciple which would require the state of Michigan to adopt a pay-as-you- go, unit-by-unit system."

The Lehnert dispute stretches L back several years. In early, pretrial proceedings, the two sides agreed to focus the debate on expenses for the 1981-82 fiscal year.

A federal district court held that while certain of the agency-fee ex penditures were proper, others were not. The court ordered restitution of substantial fees to the non-union L faculty members, but said the state and national unions also were enti tled to certain amounts.

After further legal maneuvers, the non-union employees filed a chalL lenge to the district court's conclusion that the costs of certain union activi ties could be charged to non-union faculty members. The U.S. Court of Appeals for the Sixth Circuit affirmed the lower court's views.

In his appeal to the Supreme L Court, Mr. LaJeunesse asked for re versal of the lower court's judgment "to the extent that it entitles the unH ions to service fees ... for the disputH ed activities."

The Court is expected to reach its decision in the case by late June.

In other High Court business last week, the Justices declined to accept another faculty-union fee dispute, L Lowary v. Lexington Teachers Asso ciation (No. 90-259).

The case involves a group of non- union teachers in Lexington, Ohio. Is sues included refunding to the teach ers a part of the fees they were forced to pay to the union, given certain de fects in the fee-collection process.

The non-members' lawyers, who L included Mr. LaJeunesse, contended that the lower courts had abdicated their judicial duties in the case and acted contrary to legal precedent.

The lawyers for the teachers' asso ciation, including Mr. Chanin, L maintained that the Sixth Circuit Court did not err in denying a total refund to the non-union teachers.

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