At issue in Lehnert v. Ferris Faculty Association (1991) was whether the union representing faculty members at a college could compel dissenting members in an agency shop to subsidize legislative lobbying and other political activities not directly related to standard collective bargaining activities such as contract negotiation and grievance adjudication. Ultimately, in Lehnert the U.S. Supreme Court ruled that the unions of public employees may charge dissenting employees the cost of activities that are clearly germane to collective bargaining as are justified by the government’s vital policy interest in labor peace. In addition, the Court sought to avoid having “freeloaders,” those who did not pay for benefits that unions gained on their behalf, typically in the form of salary increases and benefits. At the same time, the Court did not wish to limit the First Amendment rights of dissenters by essentially compelling them to support speech with which they disagree. Further, the Court added that the government and unions cannot compel nonmember employees to support political lobbying efforts as a condition of public employment.
Lehnert v. Ferris Faculty Association stands out, because in it the Supreme Court balanced the First Amendment rights of faculty members who do not wish to join unions with the rights of unions to collect fair compensation for the services that they provide to all employees, regardless of whether they are members.
The State of Michigan’s Public Employment Relations Act provides that a duly selected union shall serve as the exclusive representative of public employees in a particular bargaining unit. The act, which applied to faculty members in all educational institutions in Michigan, permitted unions and state employers to enter into “agency shop” arrangements in which the unions acted as agent for all employees regardless of their union membership status. Employees in agency shops are not required to join unions but are compelled to pay service fees that almost equal union dues, because nonmembers benefit from union collective bargaining efforts as much as members. The primary purpose of such policies, of course, is to prevent nonmembers from freeloading on union efforts without sharing the attendant costs. However, agency shop arrangements in public sector unions raise First Amendment concerns, because they require nonmembers to contribute money to unions as a condition of government employment.
In Abood v. Detroit Board of Education, a 1977 case from K–12 education, the Supreme Court first upheld the constitutionality of the agency shop provision in Michigan’s Public Employment Relations Act that related to Lehnert, while emphasizing that unions in the public sector may not use the fees of dissenting nonmembers for political purposes. The justices also highlighted important guidelines for lower courts to consider in the adjudication of future agency shop disputes. First, the Court explained that compelling employees to pay a service fee prompts First Amendment concerns, because unions support a wide range of social, political, and ideological viewpoints, any one of which might bring disapproval from individual employees. Under the First Amendment, employees have the right to speak and associate or not to speak and associate regarding union political activities.
Second, in Abood the Supreme Court noted that compulsory financial support of a public employee union does not in and of itself violate the First Amendment rights of nonmembers, because the advantage of peaceful labor relations fostered by agency shops normally supersede constitutional infringements that may occur. Third, because the Court was of the opinion that states may not condition public employment upon professed religious allegiance or association with a political party, it concluded that public employers may not require “an employee to contribute to the support of an ideological cause he may oppose as a condition of holding a job” as a public educator.
Facts of the Case
Following the Supreme Court’s decision in Abood, the faculty association in Lehnert entered into an agency shop arrangement with Ferris State College in Michigan whereby nonmembers were required to pay a service fee equal to union dues. James P. Lehnert and other members of the Ferris State College faculty filed suit, claiming that the union’s use of their agency fees to pay for lobbying and other political activities not directly related to collective bargaining violated their First and Fourteenth Amendment rights. The plaintiffs also claimed that the procedures that the union used to establish the amount of, collect, and account for their service fees were inadequate. A federal trial court ruled that some, but not all, of the union expenditures were constitutionally chargeable to the plaintiffs. The plaintiffs appealed following a partial settlement, and, on further review, the Sixth Circuit affirmed.
The Supreme Court’s Ruling
After agreeing to hear an appeal, the Supreme Court partially affirmed the earlier judgments in clarifying the relationship between dissenting nonmembers and the unions representing educational employees. First, the Court reasoned that faculty members, including those who did not belong to the union, could be charged a pro rata share of the costs associated with activities of state and national union affiliates even if those activities did not directly benefit the bargaining unit at Ferris State College. Second, the Court pointed out that union members could be charged for expenses that the union incurred in preparing for a proposed strike even though it would have been illegal under Michigan state law.
Third, in accordance with existing agency shop jurisprudence, the Supreme Court determined that the union could not charge dissenting nonmembers for lobbying, electoral, and other political activities that did not relate to the collective bargaining agreement. In this regard, the Court found that the state may not compel its employees to subsidize lobbying or other political activities that are outside the context of contract ratification. In order to ensure proper accounting and distribution of agency shop fees in the future, then, the Court emphasized that unions in agency shops bear the burden of proving the proportion of chargeable expenses to total expenses for purposes of determining the amount the union may charge dissenters for services.
Robert C. Cloud
See also Political Activities and Speech of Faculty Members; Unions on Campus; U.S. Supreme Court Cases in Higher Education
Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986).
Davenport v. Washington Education Association, 127 S. Ct. 2372 (2007).
Russo, C. J., Gordon, W. M., & Miles, A. S. (1992). Agency shop fees and the Supreme Court: Union control and academic freedom. Education Law Reporter, 73(3), 609–615.
Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991).