UNITED STATES OF AMERICA USA 3

in International Labour Law Reports Online
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UNITED STATES OF AMERICA USA 3

in International Labour Law Reports Online

References

* (Some footnotes are omitted, those included are not renumbered - Ed.) ' Each class member sent the following letter to the union: 'As an employee of Western Airlines, feel that the Brotherhood of Railway, Airline and Steamship Clerks does not properly represent my interests and protest the compulsory "agency fee" must pay the Brotherhood of Railway, Airline and Steamship Clerks, in order to retain my job. In addition, I hereby protest the use of these fees for any purpose other than the cost of collecive bargaining and specifically protest the support of Legislative goals, candidates for political office, political efforts of any kind or nature, ideological causes, and any other activity which is not a direct cost of collective bargaining on my behalf. demand an accounting and refund from the Brotherood of Railway, Airline and Steamship Clerks of all fees exacted from me by the so-called "agency fee".'...

7 Then courts that have considered this question are divided....

8 Senator Hill, one of the bill's sponsors, explained on the Senate floor that "assessments" is not to include "fines and penalties". Thus if an individual member is fined for some infraction of the union bylaws or constitution, the union cannot obtain his discharge under a union-shop agreement in the event that the member refuses or fails to pay the fine imposed.' 96 Cong.Rec. 15736 (1950).

"Given our holding that objecting employees cannot be charged for union organizing or litigation, they cannot be charged for the expense of reporting those activities to the membership. " The District Court found that the organizing expenses here were spent in part to recruit new union members within the bargaining unit. This is because the collective-bargaining agreement involved in this case is administered as an agency shop rather than a union shop provision. By its terms, § 2, Eleventh authorizes negotiation of a union shop; it may be read to authorize negotiation of an agency shop. See NLRB v. General Motors Corp., 373 U.S. 734... (1963) (interpreting the equivalent provision in the National Labor Relations Act). But it would be perverse to read it as allowing the union to charge to objecting nonmembers part of the costs of attempting to convince them to become members.

" On remand, damages will have to recalculated. Petitioners argue that a new trial is required because the District Court applied a preponderance of the evidence, rather than a clear and convincing, standard of proof. It is plain from the discussion of this issue in Allen, in which we held that the union bears the burden of proving what proportion of expenditures went to activities that could be charged to dissenters that no heightened standard is appropriate in this situation. We noted there that '[a]bsolute precision in the calculation of such proportion is not, of course, to be expected or required; we are mindful of the difficult accounting problems that may arise.'... The fact that petitioners invoke the First Amendment is insufficient reason to impose the heightened standard on their opponents, and we perceive no need to abandon the preponderance standard normally applicable in civil suits for damages....

' Respondents' brief emphasizes the purposes and activities of these quadrennial conventions that do relate - even though sometimes tangentially - to collective bargaining. Respondents' brief deals only lightly with political speeches and activities. It does say that the 'appearances of the Mayor of Washington and the other public officials created no additional costs to BRAC,' and 'if there had been such costs [such as paying honoraria] they would have been deducted from the dues of objecting employees.' Brief for respondents 29, n. 16. This brief explanation leaves a number of unanswered questions. For example, the record does not appear to reveal who defrayed the travel, hotel and other expenses of speakers and their staff who made political speeches or whose purpose in attending was to further political causes. Nor does the record show who paid for the considerable entertaining that likely was provided for speakers as distinguished as those mentioned above. This may or may not fairly be considered an appropriate expense under the Court's standard. In short, at least for me, it does not seem appropriate for this Court - on the record before us - to assume that all union activities were disassociated from political causes. The case should be remanded for a full development of these facts.

3 With respect to 'social activities,' I concur only in the result reached by the Court's First Amendment analysis. As the Court points out, the expenditures on such activities are 'de minimis,' and petitioners do not contend that the social activities here 'implicate serious First Amendment interests.'... Within reasonable limits, I think it fairly may be argued that social occasions are related to the duties of the union as the exclusive representative of all of the employees in the bargaining unit. The fraternal aspect of a union may be relevant to its bargaining capability, and this Court has held that the First Amendment permits the union to 'expend uniform exactions under the union-shop agreement in support of activities germane to collective bargaining.' Railway Clerks v. Allen ....

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