1. society
2. work
3. unions

THE AMERICAN UNIVERSITY
LAW REVIEW
VOLUME
27
FALL
1977
NUMBER
1
AFTER ABOOD: PUBLIC SECTOR
UNION SECURITY AND THE
PROTECTION OF INDIVIDUAL
PUBLIC EMPLOYEE RIGHTS
DANIEL
R. LEvINSON*
I. INTRODUCTION
The extent to which private sector principles of federal labor law
should be applied to the public sector is a source of increasing interest to
both courts and commentators.' Some of the most heated discussion
within this general inquiry concerns the merits of applying various forms
of union security schemes to the public sector.2 More specifically, con*A.B., 1971, University of Southern California; J.D., 1974, Georgetown University; LL.M.,
1977, The George Washington University; Associate, McGuiness & Williams, Washington, D. C.;
Member, California, New York and District of Columbia Bars.
1. See, e.g. Smigel v. Southgate School Dist., 388 Mich. 531, 202 N.W.2d 305 (1972); Lullo
v. Fire Fighters Local 1066, 55 N.J. 409, 262 A.2d 681 (1970); Pennsylvania Labor Rel. Bd. v.
State College Area School Dist., 461 Pa. 494, 337 A.2d 262 (1975); Town of North Kingstown v.
North Kingstown Teachers Ass'n, 110 R.I. 698, 297 A.2d 342 (1972); City of Milwaukee v. Wisconsin Employment Rel. Comm'n, 71 Wis.2d 709, 239 N.W.2d 63 (1976); Jascourt, FairRepresentation in Public Sector Collective Bargaining: An Introduction, 5 JOURNAL OF LAW & EDUC. 75
(1976); McCann & Smiley, The National Labor Relations Act and the Regulation of Public Employee
Collective Bargaining, 13 HAav. J. LEGis. 479 (1976); Redenius, Public Employees: A Survey of
Some Critical Problems on the Frontier of Collective Bargaining, 27 LAB. L.J. 588 (1976); Smith,
State and Local Advisory Reports on Public Employment Labor Legislation: A ComparativeAnalysis,
67 MicH. L. REv. 891 (1969); Zwerdling, Liberation of Public Employees: Union Security in the
Public Sector, 17 B.C. IND. & COM. L.J. 993 (1976) [hereinafter cited as Zwerdling].
2. See, e.g., Blair, Union Security Agreements in Public Employment, 60 CORNELL L. REv. 183
(1975) [hereinafter cited as Blair]; Gromfine, Union Security Clauses in Public Employment, PROC.
OF THE 22nd N.Y.U. CONF. ON LAB. 285 (1970); Hopfl, The Agency Shop, 49 CORNELL L.Q. 478
(1964) [hereinafter cited as Hopfl]; Nelson, Union Security in the Public Sector, 27 LAB. L.J. 334
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 27:1
troversy centers upon whether public sector unions and employers should
or should not be permitted to agree that all employees must join or pay a
fixed amount to an exclusively recognized union as a condition of
employment, a practice that is commonly followed in the private sector.
The growth of public sector unions 3 has magnified the important questions of permissibility and desirability in transplanting the most common
forms of private sector union security 4 to the public sector. Legislatures
(1976); Palombo, The Agency Shop in a Public Service Merit System, 26 LAB. L.J. 409 (1975);
Vieira, Of Syndicalism, Slavery and the Thirteenth Amendment: The Unconstitutionality of "Exclusive Representation" in Public Sector Employment, 12 WAKE FORsT L. REV. 515 (1976); Zwerdling,
supra note 1; Note, The Privilege of Exclusive Recognition and Minority Union Rights in Public
Employment, 55 CORNELL L. REV. 1004 (1970) [hereinafter cited as Minority Union Rights].
Discussion as to the merits of union security in the public sector represents but a component part
of the broader dialogue over the efficacy of public sector collective bargaining in general. For discussion of this more comprehensive topic, which this Article does not purport to evaluate, see K.
HANSLOWE, THE EMERGING LAW OF LABOR RELATONS (1967); Summers, Public Sector Bargaining:
Problems of Governmental Decisionmaking, 44 U. CIN. L. Rev. 669 (1975); Wellington & Winter,
The Limits of Collective Bargaining in Public Employment, 78 YALE L.J. 1107 (1969); Project,
Collective Bargaining and Politics in Public Employment, 19 U.C.L.A. L. REv. 887 (1972).
This article endeavors to consider in detail only the more troublesome legal issues concerning
public sector union security that are or should be raised where the broader policy questions have
already been resolved in its favor. It would be useful, however, to outline briefly the most compelling policy arguments for and against its implementation.
The broad public policy arguments against the adoption of union security in the public sector
include assertions that (1) union security places a public employer in the position of encouraging
union membership; (2) an agency shop violates overriding merit principles; and (3) union security
violates a public employee's "right to work." On the other hand, proponents argue that public sector
union security (1) provides unions with financial stability and thus makes them more reliable bargaining representatives; (2) encourages a responsible union because the organization need not make
excessive demands for the purpose of obtaining new adherents; and (3) ensures that employees pay
for a benefit they must inevitably receive as a result of the union's efforts on their behalf. See T.
HAGGARD, CoMPuLsORY UNOmNsM, nm NLRB, AND me CouRTs 271-94 (Labor Relations and Public
Policy Series No. 15, 1977) [hereinafter cited as HAGGARD]; Hearings on H.R. 13, H.R. 9784, H.R.
10700 and Related Bills Before the Subcomm. on Manpower and Civil Service, 93d Cong., 2d Sess.
305, 324-27 (1974) [hereinafter cited as 1974 Hearings]; Clark, Politics and Public Employee Unionism: Some Recommendations for an Emerging Problem, 44 U. CIN. L. REv. 680 (1975) [hereinafter cited as Clark]; Note, The Civil Service-Collective BargainingConflict in the Public Sector:
Attempts at Reconciliation, 38 U. Cm. L. REv. 826 (1971).
Point three in the arguments against union security in the public sector raises important questions
concerning associational rights under the Constitution. For a discussion of these questions, see notes
51-52 infra. Likewise, point three in the arguments favoring public sector union security incorporates
important mixed questions of political and economic significance that should be addressed in order to
understand more fuliy the potential legal limitations of union security in the public sector. For a
discussion of these questions, see notes 117-19 & accompanying text infra.
3. See generally K. HANSLOWE, supra note 2; Edwards, The Developing Labor Relations Law in
the Public Sector, 10 DUQ. L. Rev. 357 (1972); Zwerdling, supra note 1. But see [1977 Ref. File]
GOV'T EMPL. RE.. RaP. (BNA) 71:201 (for the first time in 14 years the ratio of employees represented by labor organizations to total federal employment has experienced a decline, albeit slight).
4. The most common forms of public sector union security include: (1) agency shop agreements
which require that an employee, as a condition of employment, pay an amount equal to the periodic
PUBLIC EMPLOYEE RIGHTS
have enacted a variety of public sector union security schemes, 5 and
courts have determined their legality with mixed results.' The recent
United States Supreme Court decision in Abood v. Detroit Board of Edudues that union members must pay as a condition of acquiring or retaining membership in the union;
(2) maintenance of membership provisions which require that, once an employee becomes a member
of a union, he must continue his membership as a condition of employment; (3) fair share agreements
which require that all employees pay the union a pro rata share of bargaining costs, or that union
members pay union dues and fees, while nonunion members pay only their pro rata share of bargaining costs; (4) dues checkoff provisions which require that upon employee authorization, periodic
union dues will be deducted from the employee's paycheck; (5) union shop agreements which require
that an employee become a member of the union within a stipulated period after being hired, usually
30 days; and (6) closed shop agreements which require that an employee become a union member
before employment, and remain a member thereafter. See R. SMHrr, H. EDWARDS, & R. CLARK, JR.,
LABOR RELATIONS LAW INTHE PUBLic SECrOR 595-97 (1974); Hay, Union Security and Freedom of
Association, in LABOR RELATIONS LAW INTHE PuBuc SEcOR 145 (A. Knapp ed. 1977) (ABA Section
of Labor Relations Law); Zwerdling, Union Security in the Public Sector, in LABOR RELATIONS LAW
INTmE Putsjc SEcrOR 156 (A. Knapp ed. 1977) (ABA Section of Labor Relations Law) [hereinafter
cited as Union Security]; Blair, supra note 2, at 185-86; HAGGARD, supra note 2, at 4-5. For a brief
discussion of the legal-historical background of union security, see id. at 11-33.
Reflecting, in part, the fact that the closed shop generally is prohibited in the private sector, e.g.,
29 U.S.C. § 158(a)(3) (1970); 45 U.S.C. § 152, Eleventh (1970), its use in the public sector is
virtually unknown. But see HAGGARD, supra note 2, at 217-18. Although private sector federal labor
law allows the union shop, the law has been limited judicially: continued employment may be conditioned upon union membership, but membership, as it relates to employment rights, may only be
conditioned upon the payment of union dues and fees. Thus, for purposes of federal law, the agency
shop is the practical equivalent of the union shop. NLRB v. General Motors Corp., 373 U.S. 734,
744 (1963); Abood v. Detroit Bd. of Educ., 97 S. Ct. 1782, 1790 n.10 (1977).
It should be noted that a number of states have right-to-work laws that substantially curtail the
permissible forms of union security. The laws vary widely in scope and remedies, but declare generally that an individual's right to work shall not be denied or abridged on account of membership or
nonmembership in any labor organization. For a comprehensive examination of the various state
statutes dealing with the right to work, see Morgan, Right-to-Work Laws: The Current State of
Affairs, 23 CASE W. RES. L. REv. 570 (1972).
A number of states do not have statutes regarding the permissibility of union security arrangements, thereby leaving the development and articulation of the state's policy to the courts. See Blair,
supra note 2, at 210.
5. Currently, eighteen of the forty-one states that statutorily authorize collective bargaining by
one or more categories of public employees also authorize some form of union security agreement.
For a list of those states and statutes, together with a description of the various methods by which the
union security obligation is enforced, see HAGGARD, supra note 2, at 210-31.
As in the private sector, union security arrangements are, in a number of instances, barred by
right-to-work laws. Other sources of restrictions upon union security agreements may include state
civil service and tenure laws that delimit the reasons for public employee discharge. Id. at 236-37.
For a description of union security in the federal service and the problems engendered in its use, see
notes 100-19 & accompanying text infra.
6. See, e.g., Schermerhom v. Local 1625, Retail Clerks Int'l Ass'n, 141 So. 2d 269 (Fla.
1962) (union shop agreement repugnant to concept embodied in right-to-work laws); RobbinsdaIe
Educ. Ass'n v. Teachers Local 872, 239 N.W.2d 437 (Minn. 1976) ("fair share" authorization
upheld as constitutional); Town of North Kingstown v. North Kingstown Teachers Ass'n, 110 R.I.
698, 706-07, 297 A.2d 342, 346 (1972) (agency shop provision is constitutional only insofar as it
requires unions to pay a proportional share of the costs of benefits conferred); New Jersey Turnpike
Employees Local 194 v. New Jersey Turnpike Auth., 123 N.J. 461, 303 A.2d 599 (Super. Ct.
THE AMERICAN UNIVERSITY LAW REVIEW
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cation,7 however, has resolved many of the fundamental questions con-
cerning the constitutional permissibility of one form of public sector
union security-the "agency shop"-and has done so in a manner that
'has serious implications for public sector labor-management relations in
general and the individual rights of public employees in particular.
In Abood, several public school teachers challenged the "agency
shop" agreement permitted by a Michigan statute. 8 Their federal constitutional claim was that the agreement deprived them of their right to
freedom of association as guaranteed by the first and fourteenth amendments. 9 The Supreme Court unanimously agreed that because the state
could not compel public employees to contribute to ideological activities
that they opposed, 10 the allegations to that effect in the teachers' complaint, if proven, established a cause of action. But the majority of the
Court, in an opinion by Justice Stewart, also held that the agency shop
clause in issue was not subject to constitutional challenge insofar as the
required service charges or dues were applied to collective bargaining,
contract administration, and grievance adjustment purposes."
In a concurring opinion, which in large part constituted a dissent, Justice Powell1 2 vigorously assailed the views of the majority as imposing
severe limitations on the protected first amendment interests of public
employees.' 3 His criticism was directed specifically at the majority's
determination that the public sector agency shop was not fully subject to
constitutional restraints. On the more limited question of political contributions, he opposed the requirement that public employees express
their opposition to ideological activities in order to obtain a reduction or
refund of union dues. 14 Justice Powell instead maintained that: (1)
employee refusal to pay fees or charges to a public sector union deserved
1973), aff'd, 64 N.J. 579, 319 A.2d 224 (1974) (agency shop violated public employees' statutory
right to refrain from forced contribution); Board of School Directors v. Wisconsin Empl. Rel.
Comm'n, 42 Wis.2d 637, 168 N.W.2d 92 (1969) (exclusive checkoff agreement illegal). See also D.
SULivAN, PumLc EMPLOYEE LABoR LAw 137-38 (1969); Sachs, Labor Law, 20 WAYNE L. REv. 515
(1974).
7. 97 S. Ct. 1782 (1977).
8. The Michigan statute reviewed in Abood permitted local government employers and unions to
agree that every employee in a unit represented by the union pay a service fee equivalent to the
amount of dues uniformly required of members of the union. MxcH. CowP. LAWS § 32.210(l)(c)
(MicH. STAT. ANN. § 455(10) (Callaghan 1974)). See 97 S. Ct. at 1789 n.7.
9. 97 S. Ct. at 1788. For a description of what occurred before the Michigan State courts, see
id. at 1787-89.
10. 97 S. Ct. at 1800, 1804.
11. Id. at 1798.
12. Chief Justice Burger and Justice Blackmun joined with Justice Powell.
13. 97 S. Ct. at 1804.
14. Id.
1977]
PUBLIC EMPLOYEE RIGHTS
first amendment protection even if those fees were to be used for collective bargaining activities; and (2) the state, rather than the individual,
should bear the burden of proving that any union dues or fees required of
nonunion employees were needed to serve "paramount governmental
interests." 15
The views expressed by Justice Powell pinpoint the broader underlying
problems occasioned by the Court's application of an entire body of private sector labor law principles to public sector labor-management rela-
tions. 16 In large measure, the Court's decision was based explicitly upon
previous approval of the agency shop in the private sector. 17 This reliance was premised upon a conceptual finding that the agency shop was
a natural economic outgrowth 18 of the underlying principles of exclusivity 19 and fair representation, 20 as developed in the private sector. These
15. Id. at 1809-10.
16. For a discussion of the practical consequences of the adoption of private sector labor law
principles to the public sector, see note 119 infra.
17. In Railway Employees' Dep't v. Hanson, 351 U.S. 225 (1956) and International Assoc. of
Machinists v. Street, 367 U.S. 740 (1961), the Supreme Court approved union shop agreements
authorized by the Railway Labor Act, 45 U.S.C. §§ 151-163 (1970). See generally notes 24-55 &
accompanying text infra.
18. Agency shop agreements are particularly attractive economic devices for promoting identifiable collective employee interests and equitably distributing the costs of such services. Professor
Samuelson's theory of "public" or "collective" goods underscores the point. Goods are "collective" if the following two criteria are met: (1) the benefit any one individual derives from consuming
the good is not decreased by additional individuals also consuming the same good; and (2) it is
impossible to prevent the consumer who does not pay for the good from consuming it. Samuelson,
The Pure Theory of Public Expenditures, 36 REV. OF EcoN. & STAT. 387-89 (1954). Union bargaining services meet the collective properties of both criteria. Pulsipher, The Union Shop: A Legitimate
Form of Coercion in a Free Market Economy, 19 INDus. & LAB. R.EL. REv. 529-30 (1966). Hence,
as a collective good, the cost of collective bargaining is a proper charge to all those who enjoy its
benefits; if a significant proportion of the beneficiaries were able to avoid payment the service itself
most probably would not be provided at all. Id. at 530-31. See also Cassidy, Equity Considerations
in Public Sector Union Security Arrangements: Should "Free Riders" Pay?, 5 JOURNAL OF COLLEC.
rivE Nmrn
NO
INTHE PuBLic SEcTOR 35 (1976). While union security assures that all employees
share in the costs of collective bargaining, it also may result in infringement of employees' constitutional rights. See notes 51-53 & accompanying text infra.
19. Exclusive recognition occurs when a union designated or selected as the collective bargaining
representative by a majority of employees in a bargaining unit is deemed to be the exclusive representative of all unit employees irrespective of union membership. See Labor-Management Relations
(Taft-Hartley) Act § 9(a), 29 U.S.C. § 159(a) (1970) (giving exclusive representation rights to
the union selected by a majority of the employees); Vaca v. Sipes, 386 U.S. 171 (1967) (discussing
the standard of conduct of an exclusive representative). It is often stated in the private sector that
bargaining is only effective with one employer when performed by one bargaining agent. See Ratner,
Some Contemporary Observations on § 301, 52 Go. L.J. 260, 265 (1964) ("to deny the exclusive
representative authority to restrict . . . 'individual contract rights' is ipso facto to destroy collective
bargaining, for the essence of collective bargaining is nothing more nor less than compulsory
substitution of collective for individual representation").
THE AMERICAN UNIVERSITY LAW REVIEW
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principles form a beneficial structure for collective bargaining and, in the
Court's opinion, could be adopted within the public sector without constitutional infirmity. In making this judgment, however, the majority did
not allude either to the serious problems concerning individual rights 2 '
that these principles have raised in the private sector or to whether their
adoption in the public sector may only propagate already troublesome
labor law doctrines. 22 Moreover, the Court's vague ruling that mandatory agency shop fees not be used to support union political spending
appears to draw an artificial distinction between those areas deserving
stringent first amendment protection and those not so deserving. Finally,
the Court's decision promises to open an era of protracted litigation over
the exact parameters of the "political spending" exception, much like
that which has plagued the private sector.23
Some of the constitutional implications of the exclusivity principle in the public sector were
explored recently by the Supreme Court in City of Madison Joint School Dist. No. 8 v. Wisconsin
Empl. Rel. Comm'n, 97 S. Ct. 421 (1977). The Court held that despite the union's status as exclusive bargaining representative, a public school teacher could not constitutionally be prohibited from
speaking at a school board meeting on a subject relevant to collective bargaining.
For a review of the merits of exclusive recognition of publib sector unions, see Minority Union
Rights, supra note 2 passim; Note, Labor Relations in the Public Service, 75 HARv. L. REv. 391,
400-01 (1961); Note, MunicipalEmployment Relations in Wisconsin: The Extension of Private Labor
Relations Devices into Municipal Employment, 1965 Wis. L. REv. 671, 672-73.
20. See, e.g., Vaca v. Sipes, 386 U.S. 171 (1967); Humphrey v. Moore, 375 U.S. 335 (1964);
Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). In Vaca, the Supreme Court described the duty
of fair representation as "a statutory obligation to serve the interests of all members without hostility
or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to
avoid arbitrary conduct." 386 U.S. at 177. The Court, however, has not committed itself to any
specific fair representation standard. Clark, The Duty of Fair Representation: A Theoretical Structure, 51 TEx. L. Rav. 1119, 1122 (1973) [hereinafter cited as Clark]. For the implications of this
failure to articulate one specific standard, see notes 81-92 & accompanying text infra.
Since a union's duty of fair representation arises only when it is an exclusive bargaining agent, it
is not under such a duty if it does not enjoy exclusivity. See Fowks, The Duty of FairRepresentation: Arbitrary or Perfunctory Handling of Employee Grievances, 15 WASHBURN L.J. 1, 6 (1976).
Cf. Wells v. Order of Ry. Conductors & Brakemen, 442 F.2d 1176 (7th Cir. 1971) (minority union
owes no duty of fair representation because its status derives from employees' consent rather than
from the Railway Labor Act).
21. See generally Schatzki, Majority Rule, Exclusive Representation, and the Interests of Individual Workers: Should Exclusivity Be Abolished?, 123 U. PA. L. REv. 897 (1975) [hereinafter cited
as Schatzki].
A state-compelled requirement to contribute to a union poses a serious threat to the first amendment right of an individual to freely associate, or not associate, as the individual may see fit. 97 S.
Ct. at 1793. This freedom is founded on the idea that an individual's beliefs are often expressed
through his interactions in society. Thus, an individual's contributions to particular organizations may
be one expression of that individual's ideological or political beliefs. In exercising his freedom of
association, an individual is shielded from governmental coercion that prevents him from expressing
a personal belief or forces him to support, financially or intellectually, a position repugnant to him.
Id. at 1799-1800. See notes 51-52 & accompanying text infra.
22. See notes 56-119 & accompanying text infra.
23. See notes 120-43 & accompanying text infra.
19771
PUBLIC EMPLOYEE RIGHTS
In examining the Abood decision, this article will focus on the practical
problems raised by the Court's use of private sector principles as the
model for drawing the constitutional parameters of the agency shop
agreement in the public sector. More specifically, the article will explore
the extent to which exclusivity and union security may infringe upon
individual public employee rights and whether the duty of fair representation and the political spending exception provide adequate protection for
these rights.
II. APPLYING PRIVATE SECTOR UNION
SECURITY TO THE PUBLIC SECTOR: THE
ROLE OF "STATE ACTION"
As noted previously, a majority of the Court in Abood based much of
the constitutional legitimacy of public sector agency shop agreements
upon case law upholding union security schemes in the private sector,
particularly under the Railway Labor Act (RLA). 2 4 Justice Powell, contesting the point, emphasized that the RLA agency shop provision was
merely a government authorization for such private agreements to which
it was not a party, whereas in Abood, the government was the employer
and thus directly approved the union's requirement that nonunion
employees pay service charges to the union.2 5 The majority refused to
place any constitutional significance in the greater degree of state action
involved when a government actually requires payment of agency shop
fees 26 than when a government only approves agency shop clauses. But
Justice Powell maintained this refusal was inconsistent with previously
established constitutional and labor law principles. In evaluating the extent to which union security may impinge upon protected public
employee interests, the determination of the extent of government action,
24. 97 S. Ct. at 1789-1802. State action in RLA union security litigation is found in the operation of a federal statute, Section 2, Eleventh, which may lead to restrictions on the right to work and
curtailment of the freedom of association, speech, and religion. The federal statute, by preempting
any attempt by a state to prohibit a union shop agreement, is the source of power by which private
rights may be lost. Even though the statute only seeks to allow private parties to agree to create a
union shop and it is the subsequent action of these private parties that leads to the curtailing of
private rights, the private agreement is made pursuant to federal law. The authorization of the potential curtailment of rights is sufficient governmental action to invoke the operation of constitutional
principles. Id. at 1791 n.12; Railway Employes' Dep't v. Hanson, 351 U.S. 225, 232 (1956).
25. 97 S.Ct. at 1807-09.
26. In some states union security is an "incident of exclusive representation"; thus, public agencies covered by such a statute may not refuse to agree to such an arrangement. See HAGGARD, supra
note 2, at 227.
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and consequently the degree of constitutional restriction, is crucial.
Whether private and public sector union security law constitutes a constitutional "distinction without a difference" thus warrants examination.
Initially, it should be emphasized that the RLA is a legislative scheme
directed at resolving private sector labor-management problems with a
minimum of government interference. 2 7 As originally enacted, the RLA
represented congressional ratification of a private agreement between
labor and management concerning a system of joint conciliation and voluntary arbitration. 2 8 In essence, the RLA is designed to permit government intervention only when the employers and their employees cannot
resolve their differences by private negotiations. 9
Although originally silent on the subject of union security, the RLA
was amended in 1952 to add Section 2, Eleventh,3 0 which authorizes
private parties to agree to union shop arrangements, even in states with
right-to-work laws. 3 1 Section 2, Eleventh reflected Congress' continued
belief that labor-management relations are private matters that, when possible, should reflect the interplay of economic forces. 32
In interpreting the amendment, court decisions underscored the primacy
of the private contract in RLA's regulatory scheme. In the majority of
states, which do not have right-to-work laws, the courts have consistently
held that Section 2, Eleventh did not even raise questions of federal government action. 33 An example of these cases is Otten v. Baltimore &
27. It was only during a period of bitter railroad labor strite, and after a number of legislative
attempts to bring peace to the industry, that the Congress took the active role that it did in enacting
the RLA. See R. SMITH, L. MERiwELD, & T. ST. ANTOINE, LABOR RELATIONs LAw 26-27 (1974).
28. S. REP. No. 606, 69th Cong., 1st Sess. 2 (1926). See Railway Employes' Dep't v. Hanson,
351 U.S. 225, 240 (1956) (Frankfurter, J.; concurring); 30 Gao. WASH. L. REV. 541, 542-43 n.14
(1962).
29. One commentator, writing only a few years after the passage of the RLA, stated that the
"underlying idea" of the RLA was "that the railroads and their employees can best settle their own
troubles and that government ought to intervene only when they fail." WrrrE, THE GOVERNMENT IN
LABOR DISPuTES 244 (1932), cited in 30 GEo. WASH. L. REv. 541, 543 n.15 (1962).
30. 45 U.S.C. § 152, Eleventh (1970).
31. Because railroad companies dominated the railroad unions, Congress amended the RLA in
1934 to make union security agreements illegal. Approximately 15 years later, circumstances in the
railway labor movement had changed so dramatically that organized labor lobbied strenuously for,
and achieved in 1951, an amendment to the RLA authorizing union shop arrangements and preempting state right-to-work laws. See The Supreme Court, 1960 Term, 75 HARv. L. REv. 40, 233 (1961);
30 GEo. WASH. L. REV. 541, 543 n.22 (1962).
32. See Wellington, Machinists v. Street: Statutory Interpretationand the Avoidance of Constitutional Issues, 1961 Sup. CT. REv. 49, 71 [hereinafter cited as Wellington].
33. Prior to Railway Employes' Dep't v. Hanson, 351 U.S. 225 (1956), it had been held that
Section 2, Eleventh, did not impair the constitutional rights of railroad workers because it did not
authorize union shop contracts but merely withdrew a prior prohibition against their creation. See,
e.g., Hudson v. Atlantic Coast Line R.R., 242 N.C. 650, 89 S.E.2d 441 (1955); International Ass'n
of Machinists v. Sandberry, 277 S.W.2d 776 (Tex. Civ. App. 1954). See also Read, Minority Rights
19771
PUBLIC EMPLOYEE RIGHTS
Ohio R.R. ,34 a freedom of religion case decided by the Court of Appeals
for the Second Circuit. In Otten, a railway employee sought to enjoin his
employer from discharging him because of his refusal to become a
member of the union with which the employer had a union shop agreement. 3 5
The employee alleged that his religious beliefs forbade him
from becoming a member of the union. 3 6 Judge Learned Hand, writing
for the court, declared that in a state like New York which permitted
union shop agreements, the railway union shop was merely a "permissive" private agreement that did not receive its efficacy from any affirmative action of the federal government and thus was not subject to first
amendment constraints.37
In Railway Employes' Department v. Hanson, 38 the Supreme Court
upheld the constitutionality of Section 2, Eleventh, against a challenge
that a union shop violated employees' freedom of association, guaranteed
by the first and fifth amendments. 3 9 The Hanson case arose in a rightto-work state, and consequently, the legality of the union shop agreement, which was prohibited by state law but permitted by federal law,
necessarily depended upon the permissive federal statute. 40 As Justice
Powell pointed out in his concurring opinion in Abood, Hanson provided
only limited approval of union shop agreements. 4 1 Essentially, Hanson
and the Union Shop: A Basis for Constitutional Attack, 49 MINN. L. REV. 227, 240 n.54 (1964)
[hereinafter cited as Read]; 42 IowA L. REv. 113, 114 n.9 (1956).
34. 205 F.2d 58 (2d Cir. 1953), aff'd per curiam sub nom. Otten v. Staten Island Rapid Transit
Ry., 229 F.2d 919 (2d Cir.), cert. denied, 351 U.S. 983 (1956). See also Wicks v. Southern Pac.
Co., 121 F. Supp. 454 (S.D. Cal. 1954).
35. 205 F.2d at 60.
36. Id.
37. Id. at 60-61. See 42 IowA L. REv. 113, 114 (1956).
38. 351 U.S. 225 (1956).
39. Id. at 230, 236-37.
40. Id. at 232. The Court in Hanson stated:
If private rights are being invaded, it is by force of an agreement made pursuant to
federal law which expressly declares that state law is superseded. . . . In other
words, the federal statute is the source of the power and authority by which any
private rights are lost or sacrificed. . . . The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction.
.. " A union agreement made pursuant to the Railway Labor Act has, therefore, the
imprimatur of the federal law upon it and, by force of the Supremacy Clause of Article
VI of the Constitution, could not be made illegal nor vitiated by any provision of the
laws of a State.
Id.
41. 97 S. Ct. at 1805. Justice Powell characterized the majority's reliance upon International
Ass'n of Machinists v. Street, 367 U.S. 740 (1961), and Hanson as "misplaced." Id. Reading those
cases narrowly, he cautioned that "[u]nder the First Amendment, the Government may authorize
private parties to enter into voluntary agreements whose terms it could not adopt as its own." Id. at
1807.
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affirmed Congress' power to insure that private parties enjoy a freedom
of choice in deciding whether to include agency shop provisions in their
collective bargaining agreements. Thus, when private parties already
enjoy that choice without any affirmative action on the part of the federal
government, as in Otten, no federal presence can be discerned.
In Hanson, the Court did not indicate whether a more assertive federal
role in what was basically a private contractual relationship would be
unconstitutional. As one commentator observed, the Court's decision reflected the narrow limits of Section 2, Eleventh, in which Congress did
not "think through" the implications of the private agreement it was
approving as it might have if the legislation had required railroad workers
42
to pay agency fees.
If the RLA can be read as invoking state action in the enforcement of
union security clauses simply because Section 2, Eleventh overrides state
43
right-to-work statutes, then the National Labor Relations Act (NLRA)
should not raise the same first and fifth amendment questions since it
provides that state laws against union security schemes can preempt the
federal statutes. Yet courts have been inconsistent in their interpretation
of the first and fifth amendment impact upon security clauses permitted
by the NLRA. In Reid v. McDonnell Douglas Corp. ,44 nonunion members challenged the actions of a union that spent part of the dues collected under an agency shop agreement for political purposes. The Tenth
Circuit Court of Appeals found that the district court lacked jurisdiction
to entertain the constitutional claim, declaring that agreements between
employees and employers that take advantage of union security schemes
authorized by the NLRA do not infuse the federal government into those
decisions so as to constitute government action for first and fifth amendment purposes.4 5
In Linscott v. Millers Falls Co. ,46 however, the First Circuit Court of
Appeals found governmental action and thus addressed the constitutional
issues. The plaintiff contended that a union shop agreement requiring her
to pay union dues and fees violated her first amendment freedom of religion because her religious beliefs forbade her from making such contributions. The court rejected her contehtion, concluding that the plaintiff
must "suffer" because the burden she would bear in violating her reli-
42. Wellington, supra note 32, at 72.
43. 29 U.S.C. §§ 141-169 (1970 & Supp. V 1975).
44. 443 F.2d 408 (10th Cir. 1971).
45. Id. at 410-11. See also Colorado Labor Council v. AFL-CIO, 349 F. Supp. 37 (D. Colo.
1972), vacated, 481 F.2d 396 (10th Cir. 1973).
46. 440 F.2d 14 (1st Cir.), cert. denied, 404 U.S. 872 (1971).
19771
PUBLIC EMPLOYEE RIGHTS
gious beliefs was less onerous than might be the affront to the congressionally
approved concept of union security if her claim was sustained. 4 7
The First Circuit is not alone in believing that government action is
inherent in the NLRA scheme permitting union shops.4 8 Indeed, two
members of the Supreme Court have stated unequivocally that the
NLRA's approval and enforcement of union shop clauses serve to "encourage" and "foster" such agreements and cast "the weight of the Federal Government behind the agreements just as surely as if it had imposed
them by statute." 49
Although the role of the federal government in the regulation of union
security agreements is somewhat less pronounced in the NLRA than in
the RLA because of the latter's override of state right-to-work laws, it is
nevertheless clear that both statutes require a purely private agreement
before any state action is discernable. Moreover, even if the RLA and the
NLRA properly require a state action analysis in the evaluation of their
union security schemes, it does not follow, as the majority in Abood
practically assumed, that the considerations present in evaluating private
sector union security schemes are the same as those present in adjudging
public sector schemes. As Justice Powell maintained in the Abood concurrence, "[ujnder the First Amendment the Government may authorize
private parties to enter into voluntary agreements whose terms it could
not adopt as its own." 50
Had the Court in Abood accepted the proposition that constitutional
regulation of public sector employment required a different, more rigorous scrutiny than the regulation of employment in the private sector, it
would have had to address more fully the teachers' argument that the
state's direct participation in limiting public employment to union members, or to employees who provided financial support for the union, violated the freedom of association guaranteed by the first 5 1 and four47. Id. at 17-18.
48. See, e.g., Buckley v. American Fed'n of TV & Radio Artists, 419 U.S. 1093 (1974)
(Douglas, J., joined by Burger, C.J., dissenting from denial of certiorari); cf. NLRB v. AllisChalmers Mfg. Co., 388 U.S. 175, 180-95 (1967) (Congress did not intend to regulate unions'
internal affairs but favored giving labor organizations powers similar to those possessed by legislative
bodies); American Communications Ass'n v. Douds, 339 U.S. 382, 402 (1950) ("when Congress
clothes the bargaining representative 'with powers comparable to those possessed by a legislative
body both to create and restrict the rights of those whom it represents,' the public interest in the good
faith exercise of that power is very great") (footnote omitted). See also Lang, Toward a Right to
Union Membership, 12 HARv. C.R.-C.L. L. REV. 31, 40-49 (1977) [hereinafter cited as Lang];
Read, supra note 33.
49. Buckley v. American Fed'n of TV & Radio Artists, 419 U.S. 1093, 1095 (1974) (Douglas,
J., joined by Burger, C.J., dissenting from denial of certiorari).
50. 97 S. Ct. at 1807.
51. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976); Griswold v. Connecticut, 381 U.S. 479
(1965); NAACP v. Button, 371 U.S. 415 (1963); Shelton v. Tucker, 364 U.S. 479 (1960); NAACP
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teenth 52 amendments. Instead, the Court acknowledged that interference
53
with first amendment rights was inherent in public sector agency shops
but contended that this interference was no greater than that which occurred in the operation of agency shops approved by the RLA. Since
interference under the RLA had been considered and found justifiable on
the basis of Congress' determination that union shops play a significant
role in the functioning of the national system of labor relations, 54 the
majority deemed it unnecessary to give further consideration to the
55
teachers' constitutional argument.
In deferring to the legislative judgment on the merits of public sector
union security, the majority in Abood failed to articulate how individual
employee interests would be protected in the face of first amendment
interference, other than to acknowledge the existence of a private sector
v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). The Supreme Court has not specifically recognized an independent right to freedom of association, but instead has used the term as a "shorthand
phrase" to protect traditional first amendment rights of speech and petition. See Raggi, An Independent Right to Freedom of Association, 12 HARv. C.R.-C.L. L. REV. 1 (1977) [hereinafter cited as
Raggi]; Emerson, Freedom of Association and Freedom of Expression, 74 YALE L.J. 1, 5 (1964)
(first amendment not the exclusive source of associational rights; rather, such rights "are implied in
the whole constitutional framework for the protection of individual liberty in a democratic society").
See also Note, Freedom of Association: ConstitutionalRight or Judicial Technique?, 46 VA. L. REV.
730 (1960).
Some commentators have argued that an independent constitutional right of association should
properly exclude labor law because "what the individual seeks to pursue through membership can be
achieved only through the group." Raggi, supra, at 15 n.69. Nevertheless, the Supreme Court's
rejection of the constitutional attack on the exclusivity principle in Hanson continues to be subject to
critical review by commentators. See, e.g., Bond, The National Labor Relations Act and the Forgotten FirstAmendment, 28 S.C. L. REv. 421 (1977) [hereinafter cited as Bond].
52. The fourteenth amendment denies the states the power to "deprive any person of life, liberty,
or property, without due process of law." The Supreme Court has determined, over the course of a
number of decisions, that the broad language of this clause binds the states to most of the provisions
of the Bill of Rights. See Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968); Palko v. Connecticut,
302 U.S. 519 (1937). See also Henkin, Selective Incorporation in the Fourteenth Amendment, 73
YALE L.J. 73 (1963).
In Abood, the Court cited numerous Supreme Court decisions that establish that the freedom of an
individual to associate, in order to advance ideas and beliefs, is protected by both the first and
fourteenth amendments. 97 S. Ct. at 1799, citing Elrod v. Bums, 427 U.S. 347, 355-57 (1976);
Cousins v. Wigoda, 419 U.S. 477, 487 (1975); Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 (1958).
53. The Court recognized that "compel[ling] employees to support financially their collective
bargaining representative has an impact upon their first amendment interests." 97 S. Ct. at 1793.
Further, the Court recognized that such government compulsion "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." Id.
54. Id. at 1793.
55. The Court acknowledged that under judicial and administrative interpretations of Michigan
law, an exclusive union is under a duty of fair representation. 97 S. Ct. at 1793-94. See also note 96
& accompanying text infra.
PUBLIC EMPLOYEE RIGHTS
duty of fair representation broadly applicable to public sector unions.
Whether such a duty of fair representation, as currently defined, can offer
acceptable protection is the subject of the following section.
Ill. UNION SECURITY, EXCLUSIVE AND
FAIR REPRESENTATION: UNION
AuTHOmRY VERSUS UNION RESPONSIBILITY
In Abood, the majority of the Court went beyond the facial holdings of
cases sustaining private sector union shops to examine the basic doctrines
of the federal system of labor law reflected in those decisions. Specifically, the majority examined the economic desirability of exclusive representation by a union and the need to make that representation fair and
effective by required employee contributions. Because of the union's
concomitant duty of fair representation owed to all bargaining-unit
employees, the majority proceeded to find union shop agreements a permissible infringement upon first amendment rights of association. In sum,
the majority determined that exclusivity in representation, 5 6 coupled with
the protection that the duty of fair representation affords objecting or
non-members of a union,5 7 clearly provides the basic framework for
finding union shop agreements constitutional, not only for the private
sector but for the public sector as well.
As the concepts have developed under the RLA and NLRA, however,
the benefits of exclusivity are questionable 5 8 and the standards for determining whether the duty of fair representation has been breached have
been vague and inconsistent. The following review will trace these developments and consider their implications for the public sector.
A. The RLA
Investigations conducted by the Fair Employment Practices Commission (FEPC) during World War II revealed that white-dominated railroad
unions had used the power of exclusive representation to segregate blacks
56. Id. at 1792.
National labor policy has been built, in part, on the rationale that by pooling economic strength
and acting as one bargaining unit, all the employees of an appropriate union will have the most
effective means of negotiating for improvements in wages, hours, and working conditions. See Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975); NLRB v.
Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967).
57. 97 S. Ct. at 1792 & n.15.
58. For a discussion of the merits of exclusive representation, see Schatzki, supra note 21.
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in some crafts and exclude them from others. 5 9 As one commentator
observed, discrimination not only continued but actually increased
through the very existence of the RLA. 60 Against this background of
racially exclusionary practices and the failure of administrative or legislative bodies to correct it, the duty of fair representation was created judicially.
The principle of fair representation, as first established by the Supreme
Court in Steele v. Louisville & Nashville Railroad Co.,61 was premised
upon the Court's determination that the RLA implicitly imposed a duty
on the exclusive representative to represent fairly all members and nonmembers of the bargaining unit. 62 In Steele, the Court found that this
obligation had been violated when a white employees' union bargained to
abolish jobs held by black employees. 63 The Court compared the union to
the legislature, whose power is subject to constitutional limitations, and
suggested that the union has a similar duty not to discriminate against the
interests of those it represents and an obligation to take affirmative action
to protect those interests equally. 64 The duty of fair representation, as it
emerged from Steele, was limited in scope, however, in that it applied
only to the negotiation of collective bargaining' agreements. Although the
fair representation duty later was expanded to the grievance process, 65 its
parameters remain uncertain. Notwithstanding the analogy made in Steele
between the union and the legislature, the duty of fair representation
neither was nor is based on constitutional grounds. 66 For example, as
59. See Hill, The National Labor Relations Act and the Emergence of Civil Rights Law: A New
Priority in FederalLabor Policy, 11 HARv. C.R.-C.L. L. REv. 299, 308-09 (1976) [hereinafter cited
as Hill].
60. Id. at 309.
A fundamental weakness of the RLA, the absence of provisions requiring nondiscrimination in an
industry's employment practices, can be attributed to Congress' preoccupation with the resolution of
labor-management disputes rather than with the protection of individual rights. See Hill, supra note
59, at 309.
61. 323 U.S. 192 (1944).
62. Id. at 199.
63. Id. at 203.
64. Id. at 198.
65. Conley v. Gibson, 355 U.S. 41 (1957).
66. Hill, supra note 59, at 313. But cf. International Ass'n of Machinists v. Street, 367 U.S.
740, 777 (1961) (Douglas, J., concurring) (constitutionally impermissible for Congress or state
legislature to abridge or to grant power to private groups to abridge first amendment rights, by
allowing unions to use union dues for promoting political causes); id. at 786 (Black, J., dissenting)
(Section 2, Eleventh of RLA violates freedom of speech guarantees of the first amendment); Black v.
Cutter Laboratories, 351 U.S. 292, 302 (1956) (Douglas, J., dissenting) (contrary to frst amendment
to allow employee to be discharged because he is Communist Party member); Railway Employees'
Dep't v. Hanson, 351 U.S. 225, 232 (1956) (by virtue of supremacy clause of Constitution, RLA
could not be made illegal by any state law); American Communications Ass'n v. Douds, 339 U.S.
382, 401-02 (1950) (court must determine if the regulation unduly infringes upon first amendment
1977]
PUBLIC EMPLOYEE RIGHTS
interpreted under the RLA, it has been held that the duty is not sufficiently compelling to require unions to admit black workers into equal
membership with whites. 67 Yet, the majority in Abood found that the
duty of fair representation would be sufficient to protect the rights of
public employees who are required to pay union fees as a condition of
employment.
B. The NLRA
The concepts of exclusive representation and the duty of fair representation upon which the Court in Abood placed substantial reliance in sanctioning the public sector agency shop also have developed along similar
lines under the NLRA. Problems of racial discrimination plagued private
sector unions in areas other than the railroad industry because, like the
RLA, the NLRA contained no prohibitions against labor's racially discriminating policies. In fact, such organizations as the NAACP and the
National Urban League opposed passage of the National Labor Relations
Act 6 because of the frequent denials to black workers of opportunities to
acquire union membership and, even when such membership was obtained, of opportunities to enter skilled crafts. 69 Consequently, once the
Act was passed, the burden of ensuring nondiscriminatory union practices
ultimately fell upon the Supreme Court. In Ford Motor Co. v.
Huffman, ° the Court noted that the NLRA, like the RLA, was designed
to foster the bargaining process and to certify exclusive union representatives and concluded that the duty of fair representation applied to both
acts. 71
As if to underscore the broad applicability of private sector labor law
to the public sector, the Court in Abood cited NLRA case law to support
the proposition that individuals lacking traditional protections under federal law may seek redress from arbitrary union conduct by asserting the
right of free speech); Clark, supra note 20, at 1144 ("the Steele Court implicitly adopted the Constitution as a foundation for the [duty of fair representation] theory.").
67. See Oliphant v. Brotherhood of Locomotive Firemen, 262 F.2d 359 (6th Cir. 1958), cert.
denied, 359 U.S. 935 (1959) (membership policies of union that excluded blacks not subject to
judicial control). See Hill, supra note 59, at 316-17.
68. 29 U.S.C. §§ 151-169 (1970 & Supp. V 1975).
69. Axelrod & Kaufman, Mansion House-Bekins-Handy Andy: The National Labor Relations
Board's Role in Racial Discrimination Cases, 45 GEo. WASH. L. REv. 675, 682-83 (1977).
70. 345 U.S. 330 (1953).
71. Id. at 337. The duty of fair representation was formally adopted by the National Labor
Relations Board in Miranda Fuel Co., 140 N.L.R.B. 181 (1962), enforcement denied, 326 F.2d 172
(2d Cir. 1963) (unfair treatment of employees by exclusive bargaining representative constitutes unfair labor practice within meaning of §§ 8(b)(1)(A), 8(b)(2), & 8(b)(3) of the NLRA).
THE AMERICAN UNIVERSITY LAW REVIEW
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union's duty of fair representation. 7 2 Nevertheless, an examination of
the extent of the union's fair representation duty under the NLRA reveals
that the protection afforded employees who do not identify with majority
employee interests is limited in effectiveness, just as has been the case
under the RLA.
A notable example of the duty's limited effectiveness is reflected in the
Supreme Court's decision in Emporium Capwell v. Western Addition
Community Organization.7 3 In that case, several black employees were
discharged after they bypassed a contractual grievance procedure and engaged in unauthorized picketing to protest their employer's alleged discrimination.7 4 The circuit court found that because the employees were
attempting to vindicate their rights under Title VII of the 1964 Civil
Rights Act, 75 their discharge was a violation of their statutorily protected
rights.7 6 Placing primary reliance upon the exclusivity principle of
"majority rule," the Supreme Court reversed, 7 7 holding that when a
union represents employees, the interests of the majority may take precedence over desires of minorities.7 8 The Court thereby subordinated the
protests of the minority employees to the combined employer-union interests in maintaining the exclusivity of their grievance procedure. 7 9 This
deference to agreements made between employers and unions, without
consideration of whether individual employee interests are adversely affected, undermines the protection that the exclusivity principle purpor80
tedly was designed to serve.
72. 97 S. Ct. at 1792 n.15 (1977), citing Vaca v. Sipes, 386 U.S. 171, 182 (1967).
73. 420 U.S. 50 (1975).
74. Id. at 52-56.
75. Section 704(a) of tit. VII, 42 U.S.C. § 2000e-3(a) (1970), provides, in pertinent part, that:
It shall be an unlawful employment practice ... for a labor organization to discriminate
against any member thereof or applicant for membership, because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an investigation
proceeding, or hearing under this subchapter.
For a discussion of union practices prohibited by title VII, see Vaughn, Preferences in Public
Employment, 25 AM. U.L. REV. 659, 696-97 (1976).
76. Western Addition Community Organization v. NLRB, 485 F.2d 917, 927-32 (D.C. Cir.
1973).
77. 420 U.S. at 61-64.
78. Id. at 62.
79. See Doppelt, Employee Interests in Labor Law, The Supreme Court Swings Back the Pendulum, 1 INDUS. Rat. L.J. 323 (1976) [hereinafter cited as Doppelt].
80. As described by one commentator, the exclusivity principle "may deprive individual
employees of important rights, for it renders many persons 'prisoners of the union.' Labor organizations are political bodies, attempting to please the majority. The minority may thus not be well
served." Doppelt, supra note 79, at 328. The leeway that the duty of fair representation gives to
union officials in their conduct of union affairs has led another commentator to describe the doctrine
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PUBLIC EMPLOYEE RIGHTS
Vaca v. Sipes 8 1 established that a union violates its duty of fair representation only if its conduct is "arbitrary, discriminatory, or in bad
faith." 82 This standard has proven to be ill-defined, for even while
citing Vaca as controlling, courts have varied significantly in their application of the Vaca standards.8 3 The variation in the courts' interpretation
of the Vaca standard coupled with the inherent difficulty of proving arbitrary, discriminatory, or bad faith conduct, places a difficult burden on
dissenting employees 84 and may allow the union to compromise funda-
mental employee rights. 85
as "more shadow than substance." Lang, supra note 48, at 35. See also Tobias, A Plea for the
Wrongfully Discharged Employee Abandoned by His Union, 41 U. CIN. L. REV. 55 (1972).
81. 386 U.S. 171 (1967).
82. Id. at 190.
83. Compare Ruzicka v. General Motors Corp., 523 F.2d 306 (6th Cir. 1975) (local union's
inexplicable neglect to take required steps toward arbitration of grievance breached duty of fair representation, even though not motivated by bad faith); Beriault v. Local 40, Super Cargoes & Checkers, 501 F.2d 258 (9th Cir. 1974) (arbitrary conduct, even though without bad faith, violated duty
of fair representation); Griffin v. UAW, 469 F.2d 181 (4th Cir. 1972) (regardless of good faith,
arbitrarily ignoring grievance and handling it in a perfunctory manner violates duty); Retana v.
Apartment, Motel, Hotel & Elevator Operators Local 14, 453 F.2d 1018 (9th Cir. 1972) (refraining
from wrongful conduct does not satisfy duty; union violates duty if it acts in arbitrary or perfunctory
manner); DeArroyo v. Sindicato De Trabaladores, Packinghouse, 425 F.2d 281 (1st Cir.), cert.
denied, 400 U.S. 877 (1970) (good faith mistaken belief was unacceptable excuse for not pursuing
employee's grievance and amounted to arbitrary and perfunctory processing); and Truck Drivers
Local 315, 217 N.L.R.B. 616 (1975) (duty of fair representation breached because procedures for
determining bumping rights did not meet minimum standard of fairness); with Dill v. Greyhound
Corp., 435 F.2d 231 (6th Cir. 1970), cert. denied, 402 U.S. 952 (1971) (complainant must show bad
faith once union makes a decision as to the merit of an individual's grievance; proof of negligence or
poor judgment is not enough); Bazarte v. United Transp. Union, 429 F.2d 868 (3d Cir. 1970)
(negligence is not enough to support claim of unfair representation); Ruggirello v. Ford Motor Co.,
411 F. Supp. 758 (E.D. Mich. 1976) (negligent failure to initiate meritorious grievance is breach of
duty of fair representation), and Nagle v. Int'l Bhd. of Teamsters, 396 F. Supp. 391 (E.D.N.Y. 1975)
(mere negligence does not establish a breach of duty of fair representation).
One commentator has categorized post-Vaca decisions as applying one of three standards: "bad
faith, arbitrary and perfunctory representation, and negligence." See Comment, Finality and Fair
Representation: Grievance Arbitration is not Final if the Union Has Breached its Duty of Fair
Representation, 34 WASH. & LEE L. REv. 309, 317 (1977) [hereinafter cited as Finality and Fair
Representation].
84. Doppelt, supra note 79, at 328.
With regard to the protection offered by the duty of fair representation, one commentator has
remarked that:
Contrary to the Court's statement in Vaca, the employee is not protected by the duty of
fair representation, nor has he any recourse against the union or his employer, unless he
is able to carry the burden of proof necessary to show that the union's rejection of his
grievance was an abuse of discretion. If the employee has no grievance when the union
refuses to assist him, it would appear that the duty owed by the union is illusory.
Comment, Union Discretion and the Abridgement of Employee Rights, 51 ORE. L. REV. 248, 250
(1971).
85. In his dissent in Vaca v. Sipes, 386 U.S. 171, 210 (1967), Justice Black noted the problems
of the Vaca decision:
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Two post-Vaca Supreme Court decisions further diluted the protection
offered employees by the union's duty of fair representation. In Motor
Coach Employees v. Lockridge,86 the Court stated that to establish a
breach of the duty of fair representation, the employee must prove "arbitrary or bad faith conduct on the part of the Union," through "substantial evidence of fraud, deceitful action or dishonest conduct." 87 The
Court added that the doctrine of fair representation "carries with it the
need to adduce substantial evidence of discrimination that is intentional,
severe, and unrelated to legitimate union objectives." 88
In Hines v. Anchor Motor Freight,89 the Supreme Court indicated that
the fair representation duty would be breached if the union's representation was "dishonest, in bad faith, or discriminatory." 90 By substituting
"dishonest" for the "arbitrary" standard articulated in Vaca, the Court
in Hines eliminated the one standard that did not require intent, thereby
making it even more difficult for the employee to prove breach of the fair
representation duty. 9 1
In the wake of Vaca, Lockridge, and Hines, it is clear that "the present law is in complete disarray as to the standard to be applied in determining whether a union has in fact violated its duty of fair representation." 92 But if, as acknowledged by the Supreme Court in Abood,
The Court never explains what is meant by this vague phrase or how trial judges are
intelligently to translate it to a jury ....
It puts an intolerable burden on employees
with meritorious grievances and means they will frequently be left with no remedy.
Today's decision, while giving the worker an ephemeral right to sue his union for
breach of its duty of fair representation, creates insurmountable obstacles to block his far
more valuable right to sue his employer for breach of the collective bargaining agreement.
ld.
86. 403 U.S. 274 (1971).
87. Id. at 299, quoting Vaca v. Sipes, 386 U.S. 171, 193 (1967).
88. Id., quoting Humphrey v. Moore, 375 U.S. 335, 348 (1964) (emphasis added). At least two
cases have construed Lockridge as narrowing the Vaca standard. Finality and Fair Representation,
supra note 83, at 322 n.86, citing Buzzard v. Machinists Local 1040, 480 F.2d 35 (9th Cir. 1973);
Papillon v. Hughes Printing Co., 413 F. Supp. 1313 (M.D. Pa. 1976).
89. 424 U.S. 554 (1974). During the course of litigation in Hines, no less than four different
standards of the fair representation duty were articulated: Hines v. Local 377, Int'l Bhd. of
Teamsters, 84 L.R.R.M. 2649, 2651 (N.D. Ohio 1973) ("bad faith or personal hostility"); id. at
2650 ("bad faith, arbitrariness or perfunctoriness"); Hines v. Local 377, Int'l Bhd. of Teamsters,
506 F.2d 1153, 1156 (6th Cir. 1974) ("bad faith or arbitrary conduct"); Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 571 (1974) ("dishonest, in bad faith or discriminatory").
90. 424 U.S. at 571.
91. One commentator suggests that the rarity of cases alleging intentional tort indicates the
difficulty of proving intent. Finality and Fair Representation, supra note 83, at 322 n.90.
92. Aaron, ProceduralDue Process and the Duty of FairRepresentation in Public Sector Grievance Disputes, in LABOR RELATIONS LAW IN THE PUBLIC SECToR 194 (A. Knapp ed. 1977) (ABA
Section of Labor Relations Law).
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PUBLIC EMPLOYEE RIGHTS
public employees who have "economic or political objections to unionism itself" 93 must nevertheless contribute to their collective bargain-
ing representatives, and thereby suffer infringement of their first amendment rights, it is particularly important for such employees to enjoy a
reasonably predictable and well defined obligation on the part of the
union to protect their interests. Yet the duty of fair representation in the
public sector has generally followed the vague and shifting patterns that
have characterized it in the private sector.
C. The Public Sector
In Abood, the majority noted that the State of Michigan had adopted a
regulatory scheme for the conduct of public sector labor-management relations at the local government level which, although not identical to the
NLRA or RLA scheme, was patterned after federal law. 94 Thus, while a
public sector union that obtained majority support among unit employees
enjoyed exclusivity and could bargain with a public employer for the
inclusion of an agency shop clause in its collective bargaining agreement,
the union was concomitantly under a duty to represent fairly all
employees in the unit, whether or not union members. 9 5
Although the private sector duty of fair representation as generally developed in Vaca technically does not apply to unions in the public sector,
a number of state courts, including those in Michigan, 96 have used the
private sector duty concept as a basis for developing similar judicial standards for the public sector. 97
As a result, one may reasonably expect
One commentator has described the problem of defining the duty of fair representation in the
private sector as follows:
Litigants need clear, meaningful principles as badly as the courts. Unions need to know
what they must and must not do. Employees need to know their rights; with better
understanding they could use internal political pressures more and the courts less.
Employers also have an interest in clearer legal standards. They are frequently drawn
into triangular suits in which their liability for contract breach depends on the union's
fair representation violation. More of these costly suits could be settled if the law were
better defined. Few litigants will venture predictions on a standard that turns on magic
words like 'bad faith' or 'arbitrariness' and the courts' shifting ideas of what those
words encompass. Instead, both the courts and the potential litigants need a legal standard that lends itself to definition and particularization.
Clark, supra note 20, at 1121-22 (footnote omitted).
93. 97 S. Ct. at 1793.
94. Id.
95. Id. at 1793-94. See note 55 supra.
96. See, e.g., Lowe v. Hotel & Restaurant Employees Local 705, 389 Mich. 123, 205 N.W.2d
167 (1973); McGrail v. Detroit Fed'n of Teachers, 82 L.R.R.M. 2623 (Mich. Cir. Ct. 1973).
97. See, e.g., Lullo v. Fire Fighters Local 1066, 55 N.J. 409, 262 A.2d 681 (1970); Grossman
v. City Employees Union, 89 L.R.R.M. 2318 (N.Y. Sup. Ct. 1975); Kaufman v. Goldberg, 64
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that, as in the private sector, the interests of minority employees often
may be sacrificed because the standards governing the duty of fair representation allow an exclusive unionwide discretion in conducting union
affairsA s This denigration of minority employee interests almost naturally occurs because a union is seldom neutral and inevitably owes its
allegiance to one or another of the several competing employee groups. 99
Recent discussion concerning labor-management relations in the federal
service presents evidence that, notwithstanding the limited duty of fair
representation, the permission of agency shops may seriously threaten
minority or nonunion employee interests. Labor relations in the federal
service currently are governed by amended Executive Order 11,491,100
which grants all executive branch employees, with limited exceptions, the
right to participate in or refuse to join a labor organization. 10 1 It establishes an administrative structure for the supervision of collective bargaining 'O and defines the duty to bargain. 10 3 Unlike the NLRA and the
Misc. 2d 524, 315 N.Y.S.2d 35 (Sup. Ct. 1970); Belanger v. Matteson, 346 A.2d 124 (R.I. 1975),
cert. denied, 424 U.S. 968 (1976). See also Rose, The Duty of FairRepresentation in Public Sector
Collective Bargaining, 5 J. LAW & EDuc. 77, 90 (1976).
98. See notes 81-92 & accompanying text supra.
99. Schatzki, supra note 21, at 902.
100. Exec. Order No. 11,491, 3 C.F.R. 861 (1966-1970 Compilation), reprinted in 5 U.S.C. §
7301 (1970), as amended by Exec. Order No. 11,838, 3A C.F.R. 126 (1975), reprinted in 5 U.S.C.
§ 7301 (1975). See generally Rosenblum & Steinbach, FederalEmployee Labor Relations: From the
'Gag Rule' to Executive Order 11491, 59 Ky. L. REv. 833 (1971); Wray, Crisis in Labor Relations
in the Federal Service: An Analysis of Labor-ManagementRelations in the FederalService under
Executive Order 11491, 31 BROOKLYN L. REv. 79 (1970).
101. Exec. Order No. 11,491 § l(a), 3 C.F.R. 862 (1966-1970 Compilation). Labor relations
policy for postal workers is established under the Postal Reorganization Act of 1970, 39 U.S.C. §8
1201-1209 (1970).
Section 10 of the Executive Order (3 C.F.R. 867) incorporates the exclusivity principle of the
private sector. Additionally, there is provision in the Executive Order for the existence of labor
organizations with more limited rights of recognition. Thus, unions that enjoy less than majority
support of the employees in an appropriate unit may nevertheless qualify for national consultation
rights and the more limited authority to act on behalf of employees that such status permits. See
Exec. Order No. 11,491 § 9, 3 C.F.R. 867 (1966-1970 Compilation).
According to the AFL-CIO, federal employees in units of exclusive recognition have gone from
16% (121,000) in 1963 to 82% (429,000) in 1974 for blue collar workers, and from 6% (74,000) in
1963 to 48% (736,000) in 1974 in the white collar work force. AFL-CIO Manual for Federal
Employees, [1977 Ref. File] Gov'T EMPL. REL. REP. (BNA) 61:453.
102. Exec. Order No. 11,491 §§ 4-6, 3 C.F.R. 864-65 (1966-1970 Compilation). The Order
establishes the Federal Labor Relations Council, to include among its members the Chairman of the
Civil Service Commission, the Secretary of Labor, and the Director of the Office of Management and
Budget, which administers and interprets the Order, decides major policy issues, prescribes regulations, and makes policy recommendations to the President. The Order establishes within the Council a
Federal Service Impasses Panel empowered to take necessary actions to settle negotiation impasses.
The Assistant Secretary of Labor for Labor-Management Relations also is assigned responsibilities for
the administration of the Order. This organization is in marked contrast to the agency-by-agency
approach to federal labor relations prior to Exec. Order No. 11,491. See Rosenblum & Steinbach, supra
19771
PUBLIC EMPLOYEE RIGHTS
RLA, however, the Executive Order explicitly articulates the duty of fair
representation. It provides that when a labor organization has been ac-
corded exclusive recognition, "Lilt is responsible for representing the
interests of all employees in the unit without discrimination and without
regard to labor organization membership."
104
Legislators have introduced statutory alternatives to the Executive
Order that would require nonunion federal employees, as a condition of
employment, to contribute an amount equal to the dues, fees, and assessments of the exclusively recognized union members. 10 5 With regard
note 100, at 850; Seidenberg, FederalSector Overview: Collective Bargaining-An Address before
the 1975 Seminar on Employee Relations in the Federal Government, 34 FED. B.J. 229 (1975).
103. Exec. Order No. 11,491 § 11(a), 3 C.F.R. 868 (1966-1970 Compilation). An agency and a
labor organization that have been accorded exclusive recognition have a duty to meet at reasonable
times and to confer "in good faith" on matters of personnel policy, personnel practices, and working
conditions. The duty to meet and confer, however, does not include matters concerning the mission
of the agency, its budget, its organization, the number or assignment of employees, the technology of
performing the work, or internal security practices. Exec. Order No. 11,491 § 11(b), 3 C.F.R.
868-69 (1966-1970 Compilation). The duty to bargain is limited further by any "applicable laws and
regulations," including personnel policies published by the Civil Service Commission in the Federal
PersonnelManual, and agency personnel policies for which a compelling need exists. Exec. Order
No. 11,491 § 11(a), 3 C.F.R. 868 (1966-1970 Compilation).
The only form of union security currently permitted by the Executive Order is the checkoff. Exec.
Order No. 11,491 § 12(c), 3 C.F.R. 870 (1966-1970 Compilation). This provision also specifically
prohibits union shop, agency shop, and maintenance of membership clauses.
The Civil Service Commission has promulgated regulations on voluntary dues checkoff since 1964.
Current regulations provide that an employee may make an allotment for dues to a labor organization
when: (1) he is a member of a labor organization which holds exclusive recognition; and (2) the
agency and the labor organization have negotiated a dues withholding agreement. The employee is
entitled to revoke his allotment authorization at stated six-month intervals. An employee's allotment
is discontinued when the agreement between the agency and labor organization is terminated or
ceases to be applicable to the employee, or he is suspended or expelled from membership in the
organization. Pursuant to Exec. Order No. 11,616 § 21, 3 C.F.R. 605, 608 (1971-1975 Compilation), the administrative costs of employee withholdings is borne by the labor organization, unless the
parties agree that the agency must absorb all, or a certain portion, of the cost. 5 C.F.R. §
550.321-.324 (1977).
During the 1975 review of the federal service labor program, union spokesmen sought a uniform
policy that would maintain dues checkoff during renegotiation of contracts. In line with the policy
reflected in Exec. Order No. 11,616, 3 C.F.R. 605 (1971-1975 Compilation) the Federal Labor
Relations Council chose to keep dues withholding "subject to the dynamics of negotiations," and rejected uniform agency prescriptions, concluding "that the experience and expertise
gained by the parties over the years would insure responsible bargaining over checkoff substance and
procedures." M. Nesbitt, LABOR RELATONS INTHE FEDERAL GovEmNMENr SERvICE 216 (BNA 1976).
104. Exec. Order No. 11,491 § 10(e), 3 C.F.R. 868 (1966-1970 Compilation).
105. See, e.g., H.R. 13, 95th Cong., 1st Sess. § 7114(c) (1977); H.R. 1589, 95th Cong., 1st
Sess. § 5(c) (1977).
Labor-management legislation for the federal service first received serious attention by the Congress in 1974. See Tobias, The Scope of Bargaining in the Federal Sector: Collective Bargaining or
Collective Consultation, 44 GEo. WASH. L. REv. 554, 572 n.103 (1976) and proposed legislation
cited therein.
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to the duty of fair representation, these bills have either borrowed verbatim from the current Executive Order 10 6 or have not articulated the
duty at all,10 7 leaving the development of the scope of the duty to administrative bodies. Presumably, these bodies will model the duty along
private sector lines.
The pronouncements of federal service labor unions illustrate that the
duty of fair representation under either formulation does not offer a
reasonable counterbalance to union security and exclusivity. Unions that
enjoy exclusivity over substantial portions of the federal work force have
enthusiastically endorsed legislation that would permit negotiation of
agency shop agreements.10 8 But unions representing predominantly
minority interests, with few or no units of exclusive recognition, have
voiced strong opposition, noting the failure of exclusive unions to press
minority grievances. For example, the National Alliance of Postal and
Federal Employees (NAPFE), a union composed predominantly of black
postal employees, has testified before the Congress that "big unions"
have refused to represent minority interests and instead have urged
minorities to seek redress through such organizations as the NAACP or
EEOC. Yet, as the NAPFE asserts, this failure to address adequately
minority employee concerns has not deterred "big union" requests for a
monopoly on the right to represent federal employees.' 0 9
Legislators particularly sensitive to minority group interests responded
to these criticisms, and shortly after agency shop legislation for the federal service was introduced in the 95th Congress, they introduced a bill
designed to assist the NAPFE. 1 0 The legislation would have permitted
employees freedom of choice in selecting a representative for grievance
proceedings under the National Postal Agreement even when the
employees were in units of exclusive recognition."' Although many
members of the "Black Caucus" in the House of Representatives en-
106. See H.R. 13, 95th Cong., 1st Sess. § 7113 (1977).
107. See H.R. 1589, 95th Cong., 1st Sess. (1977).
108. See, e.g., Position Paper Submitted in Conjunction with the Statement of Vincent L. Connery, National President, National Treasury Employees' Union, 1974 Hearings, supra note 2, at
324-27. Connery argues that public sector agency shops are in the public interest because, by making
de facto union membership coextensive with the bargaining unit, they promote security and policymaking stability within the public sector unions. Thus, public sector agency shops assist the unions
in becoming responsible and reasonable collective bargaining representatives better able to represent
all employees, members and nonmembers alike.
109. [1977] GOV'T EMPL. Ra.. REP. (BNA) 707:9. See also [1969] GOV'T EMPL. RaL. REp. (BNA)
314 (reporting attempt by minority union of black foremen to gain recognition in District of Columbia where majority union was overwhelmingly white).
110. [1977] Gov"r EMPL. Rat. RaP. (BNA) 707:9.
111. H.R. 2722, 95th Cong., 1st Sess. (1977). See [1977] Gov'T EMPL. RE.. REP. (BNA) 707:9.
PUBLIC EMPLOYEE RIGHTS
dorsed the legislation, the national exclusive postal craft unions strongly
2
criticized it."
The expressed concerns of federal service minority unions may, of
course, be interpreted in different ways. If these spokesmen are reflecting
a basically meritorious complaint about the way in which large exclu-
sively recognized federal unions fail to represent minority employees
adequately, then, much like the criticism encountered in the private sector,' 1 3 these objections are entitled to substantial weight in determining
whether unions should enjoy union security or, for that matter, exclusivity. On the other hand, proponents of union security may contend that
such minority unions are engaged only in an exercise of self-preservation
and are ignoring the greater economic benefits for all employees in the
bargaining unit that might result from the greater security and stronger
bargaining power of a single, uniformly supported union."14 Even
granting the validity of this latter argument, minority unions can justifiably contend that they should be entitled to represent economic, social, or
political interests that they alone can protect adequately. Most importantly, supporters of minority unions maintain that they should not contribute to unions that they perceive as failing to protect their interests.
Minority protections are necessary, if not as a matter of constitutional
right under the first amendment," 5 then in some measure as a matter of
112. [1977] GOVT EMNL. REL. REP. (BNA) 707:9.
113. A major criticism of the private sector duty of fair representation is that employees are not
protected from negligent conduct of their exclusive representatives and are "being damaged by judicial insistence on holding a union liable only for arbitrary, discriminatory or bad faith conduct."
Flynn & Higgins, FairRepresentation: A Survey of the Contemporary Framework and a Proposed
Change in the Duty Owed to the Employee, 8 SuFFoLK U.L. REv. 1096, 1160-61 (1974). See also
Finality and FairRepresentation, supra note 83, at 327-28.
Hill, supra note 59, at 359-60, argues that both the two railroad boards and the NLRB have
neglected the problems of black workers and encouraged and strengthened labor organizations "regardless of their racial practices ....
He contends, therefore, that "where there is a failure of fair
representation, the right to be the exclusive representative must be revoked." Id. Cf. Note, The
NLRB and the Duty of Fair Representation: The Case of the Reluctant Guardian, 29 U. FLA. L.
REV. 437 (1977) (suggests that duty of fair representation provides a viable source of relief for
injured employees, but that fair representation questions should rest exclusively within NLRB jurisdiction).
114. See note 108 supra.
115. In the course of his opinion, Justice Stewart acknowledged that a government cannot require
the relinquishment of first amendment rights as a condition of public employment. See, e.g., Perry v.
Sindermann, 408 U.S. 593 (1972); Keyishian v. Board of Regents, 385 U.S. 589 (1967). This
principle, which prohibits a state from compelling its employees, as a condition of employment, to
affirm their belief in God, Torcaso v. Watkins, 367 U.S. 488 (1961), or associate with a political
party, Elrod v. Bums, 427 U.S. 347 (1976), was extended by Justice Stewart to apply to mandating
union contributions for the support of "ideological" activities. 97 S. Ct. at 1800. In his concurring
opinion, Justice Powell argued vehemently that no basis existed for distinguishing "political" from
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statutory right under a legislative scheme designed, in part, to provide
free choice of representation to individual employees."'
The debate over union security in the federal service raises the question
of whether the concept is a purely economic one or whether there are
inherent social and political implications that should ultimately require a
more rigorous constitutional review. Shortly before announcement of the
decision in Abood, one commentator, in the course of proposing that
union exclusivity violates the associational rights of employers and
employees, criticized the Court for analyzing the NLRA as strictly
economic legislation and thus not subject to the scrutiny accorded political and social legislation that touches upon first amendment and other
constitutional rights. 1 17 He reasoned that while the NLRA is surely
"economic" legislation, "it is also political and social legislation," and
therefore the Supreme Court should not avoid a constitutional analysis of
the Act's impact on associational rights." 8 The majority in Abood has
now proceeded one step further to find that in the more highly politicized
environment of the public sector," 9 legislatures are free to draw
"collective bargaining" activities so far as the interests protected by the first amendment are concemed. 97 S. Ct. at 1811.
See also notes 51-53 & accompanying text supra.
116. The preamble to the NLRA, for example, declares:
It is declared to be the policy of the United States to eliminate the causes of certain
substantial obstructions to the free flow of commerce and to mitigate and eliminate these
obstructions when they have occurred by encouraging the practice and procedure of
collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for
the purpose of negotiating the terms and conditions of their employment or other mutual
aid or protection.
NLRA, 29 U.S.C. § 151. See also Exec. Order No. 11,491 § 1, 3 C.F.R. 862 (1966-1970 Compilation).
The due process implications involved in the public sector union's control of the grievance system
suggest another basis for imposing a more stringent duty of fair representation on the public sector.
Assuming state action and a property interest are found, the union's role in negotiating the grievance
procedure and in processing individual grievances necessarily requires that the union should comport
with due process. This argument is advanced and discussed in detail in Note, Public Sector Grievance Procedures, Due Process, and the Duty of FairRepresentation, 89 HARV. L. REv. 752 (1976).
117. Bond, supra note 51, at 430-31.
118. Id.
119. The political nature of the public sector makes the problem of differentiating between collective bargaining and ideological activities particularly difficult. As Justice Powell noted in his concurring opinion in Abood, collective bargaining in the public sector is necessarily political, and consequently it seriously impinges upon interests protected by the first amendment. Decisions reached on
basic issues such as wages and hours, Justice Powell continued, "will have a direct impact on the
level of public services, priorities within state and municipal budgets, creation of bond indebtedness,
and tax rates." 97 S. Ct. at 1811.
The political nature of the collective bargaining process in the public sector also has serious institutiona implications for the public employer and union. Public sector unions may be able to distort
1977]
PUBLIC EMPLOYEE RIGHTS
economic blueprints for the conduct of labor-management relations with-
out concern for whether important social and political interests may be
seriously compromised. As a result of its decision, groups like the
NAPFE are foreclosed from pursuing their challenges to exclusivity and
agency shops in the courts and must rely solely upon the discretion of the
legislature. Thus, when courts hold that exclusivity and union security are
"economically necessary" and therefore free from rigorous constitutional
scrutiny, legislators must take the initiative to delineate a rigorous duty of
fair representation commensurate with union power.
IV.
POLITICAL EXPENDITURES AND THE APPLICATION
OF INTERNATIONAL ASSOCIATION OF
MACHINISTS V. STREET TO THE PUBLIC SECTOR
In Hanson,12 0 the Supreme Court was careful to note that the legisla-
tive policy behind permitting union security is that of encouraging stability in labor-management relations. 1 2 1 But in upholding the constitutionality of agency shops under the RLA, the Court did not overlook the
potentially serious constitutional problems that can result if union shop
assessments are required for purposes not germane to collective bargainthe collective bargaining process by placing pressure upon legislatures or securing public office for
members or sympathizers, thus placing the union on both sides of the collective bargaining table. See
Rehmus, Constraints on Local Government in Public Employee Bargaining, 67 MICH. L. REV. 919
(1969). Moreover, the strength of public sector unions may have a direct impact upon the protection
of public interests by public employer bargainers, even though no inconsistent or conflicting loyalties
exist within their ranks. Public officials are not profit-motivated but rely primarily upon their political
base. Regardless of budgetary or legal restraints, public officials may find that permitting concessions
to public unions is politically expedient. Thus, it was reported a few years ago that an analysis
prepared by the Michigan Municipal League of 158 contracts negotiated by Michigan municipalities
revealed the "startling statistic" that over 25% of the agreements contained either union shop or
maintenance of membership provisions, both of which, at least at that time, were illegal under
Michigan law.
MICHIGAN MUNICIPAL LEAGUE,
LABOR CONTRACT ANALYSIS
FOR MICHIGAN
MUNICIPALMES 1970 (Info. Bull. No. 117, 1970), cited in Shaw & Clark, The Practical Differences
Between Public and Private Sector Collective Bargaining, 19 U.C.L.A. L. REv. 867, 875 & n.20
(1972).
120. 351 U.S. 225 (1956). Justice Douglas delivered the opinion, expressing the views of all
members of the Court except Justice Frankfurter.
In his concurring opinion, Justice Frankfurter reviewed the history of railway labor legislation and
the constitutional attacks upon it. Quoting from Justice Holmes' dissenting opinion in Adair v.
United States, 208 U.S. 161, 191-92 (1908), which argues that congressional encouragement of
strong unions was a permissible policy, Justice Frankfurter pointedly underscored the limited reach of
federal law into an area of voluntary agreements. 351 U.S. at 238-42. See also note 32 & accompanying text supra.
121. 351 U.S. at 233.
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ing. 122 Thus, the Court found Section 2, Eleventh, constitutional by
limiting the statute's requirement for the payment of "periodic dues, initiation fees, and assessments" to financial support for the work of the
union "in the realm of collective bargaining." 123 Since the plaintiffs in
Hanson alleged no other type of assessment,12 4 the Court found no impairment of freedom of expression.
In the second major challenge to Section 2, Eleventh, however, other
types of assessments were alleged. In International Association of
Machinists v. Street,1 25 certain employees contended that a substantial
portion of mandatory dues were used, over their protests, to finance the
campaigns of political candidates whom they opposed and to promote the
propagation of political and economic policies with which they disagreed.
After reviewing the legislative history of the RLA, the Court found that
this use of mandatory payments did not help defray the expenses of
negotiating or administering collective bargaining agreements; rather, it
was a use that clearly fell outside any of the reasons underlying Congress' approval of union shop agreements.1 2 6 Consequently, the Court
construed Section 2, Eleventh, as permitting compulsory union dues only
for the purposes of collective bargaining and thus prohibiting the use of
compulsory dues for political purposes. 127 As to those expenditures for
activities that are characteristic of both collective bargaining and politics,
the Court reserved judgment. 1 28 By making the distinction between
permitted and prohibited purposes, the Court again chose not to confront
the constitutional questions noted in Hanson,129 although Justice Brennan
1 30
admitted that they were raised by the case.
In Abood, Justice Stewart acknowledged that compelled contributions
to support collective bargaining do impact upon first amendment rights
but indicated that they are constitutionally justified in the public sector,
as in the private sector, by the legislative assessment of the important
122. Id. at 236-38. Justice Douglas suggested that potential first amendment problems would arise
if agency shop agreements imposed conditions other than dues or fees, or if assessments which were
imposed were used to force ideological conformity or other actions contrary to the first amendment.
If such assessments had been made, Justice Douglas cautioned that "a different problem would be
presented" than the one before the Court in Hanson. Id. at 235.
123. Id. at 235.
124. Id. at 238.
125. 367 U.S. 740 (1961).
126. Id. at 768.
127. Id. at 768-70.
128. Id. at 769.
129. See note 122 & accompanying text supra.
130. 367 U.S. at 749. Justice Brennan noted that, if possible, federal statutes should be construed
to avoid serious doubt as to their constitutionality.
PUBLIC EMPLOYEE RIGHTS
contribution that union shops make to the system of labor relations. 131
He then concluded, however, that compelled contributions which are used
for political purposes are an unconstitutional infringement on an
employee's rights. He based that conclusion on the proposition that the
government may not require, as a condition of public employment, an
individual to relinquish his freedom to associate, or not to associate, for
the purpose of advancing individual beliefs. 132 Justice Stewart then invoked the same analysis in Abood as prevailed in Street and consequently
reached a similar judgment.
In his Abood concurrence, Justice Powell advanced one step further.
He found that political, rather than economic, considerations govern decisions concerning wages and conditions of employment in the public sector, and therefore he asserted that compelled financial support to public
sector unions, regardless of its use, impinges on the first amendment
33
rights of free speech and association.'
Even those long favoring the wholesale adoption of private sector labor
law principles to the public sector have recognized that public sector bargaining is dominated by political considerations. 134 For example, a decision by the Hawaii Public Employee Relations Board upheld a factfinder's decision and recommendation that a public sector union's political
activity directed at legislative bodies for the purpose of securing the desired results of its bargaining efforts must be considered part of the contract negotiating process. 135 The Board concluded, however, that sanctions against private sector unions using service fees to defray the costs
of political activity should have no significant impact in the public sector. 136 Although the factfinder and the Board seemed unconcerned with
the constitutional impact of their decision, they succeeded in identifying a
"fact of life" about the nature of public sector bargaining. The majority
in Abood did not believe, however, that the political nature of public
sector employment and the resulting differences between public and private sector unions could be translated into differences in first amendment
rights. 3 7 Arguably, public employees can claim some protection from
the Abood holding in that they cannot be compelled to finance union
131. 97 S. Ct. at 1793.
132. Id. at 1799.
133. Id. at 1810-11.
134. For a better understanding of the relationship between politics and collective bargaining, see
the examples cited in Clark, supra note 2, at 682-83.
135. In re Hawaii State Teacher's Ass'n, [1972] 440 GoV'T EMPL. REL. REP. (BNA) E-1, E-5 to 6.
136. Id.
137. 97 S. Ct. at 1798.
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expenditures for purely political purposes; this protection is seriously undermined, however, by the majority's unwillingness to provide adequate
enforcement mechanisms to safeguard this right. In merely adopting the
rationale of Street 138 and its progeny, the Abood decision places upon the
public employee the burden of objecting to union expenditures and proving that they are impermissible. 139 Moreover, even if complaining public
employees make the appropriate showing, they must still go through a
potentially difficult and time-consuming process to assure that the union
provides them either a rebate or a proportionate reduction of their
monthly dues.
Although various union rebate procedures have been established in the
aftermath of Street, 140 experience obtained in the private sector has illustrated the inadequacy of these procedures.141 Regardless of the monetary
relief the rebate provides, the stark reality is that the subsequent rebate of
compulsory funds misspent on activities having significant first amendment sensitivity cannot undo the infringement of constitutional rights that
the expenditure caused in the first instance. 1 4 2 Once political or
ideological viewpoints have been expressed or political influence applied,
138. This remedy is described more fully in Brotherhood of Ry. Steamship Clerks v. Allen, 373
U.S. 113 (1963). In a separate concurrence in Abood, Justice Stevens made it clear that he did not
read the majority opinion as implying that the Allen remedy would necessarily be adequate under all
circumstances. 97 S. Ct. at 1804.
139. Justice Powell's concurring opinion in Abood objects to placing the burden on the individual,
arguing that settled first amendment principles dictate that the state should bear the burden of proving
that union dues collected from nonunion employees serve the proper governmental interests. See 97
S. Ct. at 1809-10, 1814.
140. See Union Security, supra note 3, at 1036-37.
141. See Seay v. McDonnell Douglas Corp., 427 F.2d 996 (9th Cir. 1970) (objections made
pursuant to grievance and arbitration procedures were unheeded and district court had jurisdiction to
determine whether the union had made impermissible use of fees paid under an agency shop agreement), further proceedings, 371 F. Supp. 754 (S.D. Cal. 1973) (summary judgment granted for
union because it had adopted voluntarily a rebate procedure in the interim), modified, 533 F.2d 1126
(9th Cir. 1976) (reversed in part because court found genuine issues of fact concerning fairness and
adequacy of intra-union remedy); Ellis v. Railway Clerks, consolidated with Fals v. Railway Clerks,
91 L.R.R.M. 2339 (S.D. Cal. 1976) (union found to have breached its duty of fair representation (1)
by refusing to accept members' and nonmembers' letters requesting reduction of fees by amounts
spent for noncollective bargaining purposes; and (2) by failing to make reductions in fees in accordance with union constitutional provision that any member who does not desire to contribute to
"Legislative Fund Account" may have fees reduced).
142. M. Merrill, A Review of Limitations Upon the Use of Federally Authorized Compulsory
Union Dues, and a Discussion of Remedies for Wrongful Expenditures 96 (May 23, 1976) (unpublished LL.M. thesis, The George Washington University Law School). In the estimation of one
commentator, the problem of labor unions using compulsory dues for political purposes probably will
have to be resolved "legislatively, rather than through the Street-type individual suits that are costly,
time-consuming, and of dubious efficacy." HAGGARD, supra note 2, at 139.
PUBLIC EMPLOYEE RIGHTS
they cannot be withdrawn "from the marketplace of ideas, the legislative
chamber, or the polling booth." 143
V. CONCLUSION
The Supreme Court has made clear that the constitutionality of union
security in the public sector will be measured by the same standards as in
the private sector. Thus, legislative authorization for agency shops that
compel collective bargaining fees as a condition of employment face no
serious constitutional barriers in either the public or private sectors. The
Court's willingness to defer to the legislative judgment on agency shops
clearly reflects judicial endorsement of a national labor policy for the
public sector based on the complementary principles of exclusivity and
the duty of fair representation as established in the private sector. Yet
these principles have not adequately served the interests of individual
employees who do not identify with the economic or political objectives
of their unions. The limited standards which characterize the duty of fair
representation in the private sector have proven inadequate as a meaningful source of protection for the individual employee against potential
abuse of monopoly power as exercised by unions. In an effort to ameliorate these problems in the private sector, it even has been suggested that
the NLRB "nurture the duty of fair representation to equal protection"
proportions. 144 Where government has placed its imprimatur upon exclusive union authority, such a proposal would appear more compelling. In
this respect, it is surprising to find that the Court in Abood did not require a "thinking through" by the Michigan legislature of the impact of
its actions on individual employees since it was "itself directly setting
conditions of employment." 145
Irrespective of the Court's unwillingness to grapple with individual
employee rights within the context of collective bargaining, 1 46 it is clear
that an inadequately defined duty of fair representation will continue to
be a source of friction among employees and employee groups, particu-
143. M. Merrill, supra note 142, at 96.
144. Boyce, Racial Discriminationand the National Labor Relations Act, 65 Nw. U.L. REv. 232,
253 (1970).
145. See note 42 & accompanying text supra.
146. "A review of the various decisions of the constitutional issues surrounding union security
and the right to work reveals that the courts have been reluctant to apply constitutional law doctrines
in any way that might offend the prevailing popular and legislative views on this subject." HAGGARD, supra note 2, at 267.
30
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[Vol. 27:1
larly if the viability of minority employee groups is threatened. In deciding whether to permit agency shops, legislatures will ultimately have to
balance the perceived benefit of further strengthening an exclusive bargaining representative against the legitimate claims of diverse employee
groups who seek to protect the political, social, and economic interests of
their own particular constituencies.