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II
Prior decisions of this Court frame the question before us. In Hanson, Street, and Abood, the Court set forth a general First Amendment principle: The First Amendment permits the government to require both public sector and private sector employees who do not wish to join a union designated as the exclusive collective-bargaining representative at their unit of employment to pay that union a service fee as a condition of their continued employment. Taken together, Hanson and Street make clear that the local union cannot charge the nonmember for certain activities, such as political or ideological activities (with which the nonmembers may disagree). But under that precedent, the local can charge nonmembers for activities more directly related to collective bargaining. In such instances, the Court has determined that the First Amendment burdens accompanying the payment requirement are justified by the government’s interest in preventing freeriding by nonmembers who benefit from the union’s collective-bargaining activities and in maintaining peaceful labor relations. Street, 367 U. S., at 768–772; Hanson, 351 U. S., at 233–238.
In Abood, the Court explained the basis for a First Amendment challenge to service fees as follows: “To be required to help finance the union as a collective-bargaining agent might well be thought . . . to 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.” 431 U. S., at 222. But the Abood Court rejected such a challenge. It found that, “the 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.” Ibid. The Courtadded that, “ ‘furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his support merely because he disagrees with the group’s strategy.’ ” Id., at 223 (quoting Street, supra, at 778 (Douglas, J., concurring)).
In Ellis and Lehnert,the Court refined the general First Amendment principle. In particular, it refined the boundariesof Abood’sconstitutional “leeway” by describing the nature of the cost elements that the local, constitutionally speaking, could include, or which the local could not constitutionally include, in the service fee. In 1984, the Court wrote in Ellis that service fees are constitutionally permissible when they relate to the union’s duties of “negotiating and administering a collective agreement and in adjusting grievances and disputes.” 466 U. S., at 446–447 (citing Railway Clerks v. Allen, 373 U. S. 113, 121 (1963) ). Accordingly, the Court explained, the local union could charge the nonmember for union “expenditures [that] are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” 446 U. S., at 448. In doing so, the union could charge nonmembers for “the direct costs of negotiating and administering a collective-bargaining contract” and for “the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.” Ibid.
Applying this standard, the Ellis Court examined the particular service fee charges challenged in that case. The Court held that the local union could charge nonmembers for the costs of a national convention, id., at 448–449; for the costs of social activities, id., at 449–450; and for the costs of those portions of publications not devoted to political causes, id., at 450–451. Convention expenses are chargeable, the Court explained, because, if a local union is to function effectively, “it must maintain its corporate or associational existence.” Id., at 448.
The Court also held that the local union could charge nonmembers for litigation expenses incidental to the local union’s negotiation or administration of a collective-bargaining agreement, fair representation litigation, jurisdictional disputes, or other litigation normally conducted by an exclusive representative. Id., at 453. But the Court then said (in language that the petitioners here emphasize) that “expenses of litigation not having such connection with the bargaining unit are not to be charged to objecting employees.” Ibid. (emphasis added).
In 1991, the Court in Lehnert again described when an expense is chargeable. The Court said that a chargeable expenditure must bear an appropriate relation to collective-bargaining activity. 500 U. S., at 519. (Its specific description of that relation is not at issue here. Compare ibid., with id., at 557–558 (Scalia, J., concurring in judgment in part and dissenting in part)). The Court then considered one aspect of the matter here before us, the chargeability of a local union’s payment to a national organization, say, an affiliation fee. The Court assumed that, in any given year, such a payment would primarily benefit other local units or the national organization itself, but it would not necessarily provide a direct benefit to the contributing local. The petitioners in the case (nonmembers of a teacher’s union) argued that the Constitution forbids a local union tocharge nonmembers for these activities, i.e., 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.” Id., at 519.
The Court divided five to four on the general affiliation fee matter. The majority of the Court rejected the nonmembers’ claim. The Court noted that it had “never interpreted” the chargeability test “to require a direct relationship between the expense at issue and some tangible benefit to the dissenters’ bargaining unit.” Id., at 522. Indeed, “to require so close a connection would be to ignore the unified-membership structure under which many unions, including those here, operate.” Id., at 523. Rather, the affiliation relationship is premised on 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.” Ibid. And 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.” Ibid.
The Court then held 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.” Id., at 524 (emphasis added). Of particular relevance here, the Court added that the local unit need not “demonstrate a direct and tangible impact upon the dissenting employee’s unit.” Nonetheless, it said, there must be “some indication that the payment [say, to the national affiliate] is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” Ibid.
Finally, the Lehnert Court turned to the subject now before us, that of payment for national litigation. On this point, the Court split into three irreconcilable factions. A plurality of four wrote that, even though the union was “clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit,” it nonetheless found “extraunit litigation to be more akin to lobbying in both kind and effect.” Id., at 528. The plurality added that litigation is often “expressive.” It concluded that “[w]hen unrelated to an objecting employee’s unit, such activities are not germane to the union’s duties as exclusive bargaining representative.” Ibid.
The Member of the Court who provided the fifth vote for the other portions of the Court’s opinion dissented from the part of the opinion on national litigation. Justice Marshall noted that the plurality’s discussion of national litigation costs was dicta because no such costs were at issue in the case. Id., at 544 (opinion concurring in part and dissenting in part). Nevertheless, Justice Marshall characterized any rule that found national litigation costs per se nonchargeable as “surely incorrect” and indicated such costs should be assessed under the plurality’s own test, i.e., whether the litigation bears an appropriate relation to collective bargaining. Id., at 546–547. At the same time, four Members of the Court agreed with the nonmembers that including national costs in the service fee violates the First Amendment except when those costs pay for specific services “actually provided” to the local. Id., at 561 (Scalia, J., concurring in judgment in part and dissenting in part). They thought that a local union cannot charge nonmembers for national activities unless there is a direct relationship between the expenses and “some tangible benefit to the dissenters’ bargaining unit.” Id., at 562 (internal quotation marks omitted). In other words, the dissent expressly rejected the majority’s chargeability test for national expenses. But the dissent did not separately discuss national litigation activities, perhaps because, as Justice Marshall pointed out, they were not directly at issue in that case.
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