Supreme Court Hears Challenge From 'Right To Work' Group.

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Nonunion employees should not have to go through arbitration to challenge a union's service fees in federal court, a lawyer for a "right to work" organization urged the U.S. Supreme Court last week.

Unions "have no legal authority" to force nonmembers to use arbitration proceedings, said Raymond J. LaJeunesse Jr. of the National Right to Work Legal Defense Foundation.

The case before the high court involves a pilots' union, but it was evident that the teachers' unions, particularly the National Education Association, also have an enormous interest in the outcome.

"The union with the most experience in these ['agency fee' cases] is the National Education Association," Jerry D. Anker, the lawyer for the Air Line Pilots Association, told the high court.

Service Fees at Issue

The NEA and the Springfield, Va.-based National Right to Work foundation have battled each other for years over what are known as agency fees. Under federal and state laws and Supreme Court precedents, the teachers' union in a so-called agency-shop situation may charge workers who do not wish to join the union a service fee to cover collective bargaining costs.

But the union may not include certain costs in the service fees, such as those for political lobbying. In the 1986 case of Chicago Teachers Union v. Hudson, the high court said that unions must provide a hearing before an impartial decisionmaker for workers who object to the amount of their service fees.

The issue in Air Line Pilots Association v. Miller (Case No. 97-428) is whether the nonunion employees must exhaust this arbitration process before filing any lawsuits in federal court challenging the fees.

In the case of a group of nonunion Delta Air Line pilots, a federal appeals court ruled that they did not have to exhaust the arbitration proceeding.

The National Right to Work foundation opposes what it views as "forced unionism," and it argues that the arbitration proceedings are stacked in the unions' favor.

The NEA, in a friend-of-the-court brief filed on the side of the pilots' union, argues that it is "expensive and burdensome" to deal with some dissidents' objections in arbitration while responding separately to those who take their cases to court.

"It is to be expected--and NEA's experience confirms--that objectors will often find that the arbitrator's decision satisfactorily resolves their objections," the teachers' union says in its brief.

Officials of the 2.3 million-member NEA say that some 13,000 out of 44,000 nonmember service-fee payers objected to the amount of their service fees in a recent year.

The National Right to Work foundation counters that when objectors take their cases to court, the unions have a harder time justifying that all of their service fees are related to collective bargaining. In court, the objectors have a greater ability to gather evidence from the union to bolster their cases.

The foundation calls the arbitration proceedings "kangaroo courts." It says objectors have no role in choosing the impartial decisionmaker, who typically comes from a pool of people selected by the American Arbitration Association.

Stefan Gleason, the director of legal information for the right-to-work group, said the typical amount at issue in a teacher's agency-fee case is about $200 to $500.

"But it is not just the money," he said. "A teacher may not want it on his conscience that he is contributing to the political agenda of the NEA."

Promoting Peace

During oral arguments on March 23, several justices appeared sympathetic to the union's argument that allowing objectors to skip the arbitration process would be inefficient.

Justice David H. Souter expressed reservations about "the impracticality of litigating every [objector's case] in the federal courts."

The justices appeared to be looking for a balance between important competing interests. The whole scheme of designating one union as the exclusive bargaining agent for a group of workers, with its related rules, is designed to promote labor peace. But citizens also have the right to take their grievances to federal court.

"If we think this is good for national labor policy," Justice Anthony M. Kennedy asked, "does this court have the power" to require objectors to exhaust the arbitration proceeding?

A ruling in the case is expected by July.

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