united states court of appeals for the fifth circuit · case no. 15-10328 united states court of...

Case No. 15-10328

UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT

__________

JOSE SERNA, MARY RICHARDSON, ROBERTO CRUZ, SANTOS CORDERO, SARI MADERA, RALPH ANDERSON, WARREN LAMBERT, GREG HOFER, AND KENT HAND,

FOR THEMSELVES AND THE CLASS THEY REPRESENT, Plaintiff-Appellants,

V.

TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO,Defendant-Appellee.

_______________________

On Appeal from the United States District Court for the Northern District of Texas, Dallas Division

Civil Action No. 3:13-CV-2469-N, David C. Godbey, Judge Presiding_______________________

APPELLANTS’ BRIEF_______________________

David E. Watkins Bruce N. Cameron Texas Bar No. 20922000 [email protected]@jenkinswatkins.com Milton L. Chappell Jason E. Winford [email protected] Texas Bar No. 00788693 Glenn M. Taubman [email protected] [email protected] & WATKINS Nathan J. McGrathA Professional Corporation [email protected] Cole Avenue, Suite 200 c/o National Right to Work Dallas, Texas 75204-0817 Legal Defense FoundationTel: 214-378-6675 8001 Braddock Road, Suite 600Fax: 214-378-6680 Springfield, Virginia 22160

Tel: 703-321-8510Fax: 703-321-9319

Counsel for Plaintiff-Appellants and the class they represent

Case: 15-10328 Document: 00513082208 Page: 1 Date Filed: 06/17/2015

i

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Fifth Circuit Rule 28.2.1 have an

interest in the outcome of this case. These representations are made in order that

the judges of this Court may evaluate possible disqualification or recusal.

1. Appellants: Jose Serna, Mary Richardson, Roberto Cruz, Santos

Cordero, Sari Madera, Ralph Anderson, Warren Lambert, Greg Hofer, and Kent

Hand;

2. Class of nonunion employees Appellants represent;

3. Counsel for the Appellants: Bruce N. Cameron, *Milton L. Chappell,

Glenn M. Taubman, *Nathan J. McGrath, *Jason E. Winford, *David E. Watkins,

and Jenkins & Watkins (*class counsel);

4. Appellee: Transport Workers Union of America, AFL-CIO;

5. Counsel for the Appellees: Peter D. DeChiara, Michael L. Winston,

Cohen, Weiss and Simon LLP, Sanford R. Denison, and Baab & Denison, LLP;

6. Counsel for the United States: Katherine Twomey Allen.

s/ Bruce N. CameronBruce N. CameronAttorney of record for Plaintiff-Appellants


ii

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 34 of the Federal Rules of Appellate Procedure and Fifth

Circuit Rule 28.2.3, Plaintiff-Appellants respectfully request oral argument. This

appeal concerns First Amendment issues that are in flux as a result of two recent

U.S. Supreme Court decisions dealing with compulsory labor union fees: Harris v.

Quinn, 134 S. Ct. 2618 (2014); and Knox v. Service Employees International

Union, Local 1000, 132 S. Ct. 2277 (2012).

In those cases, the Supreme Court elevated the level of constitutional

scrutiny for compulsory fees from intermediate scrutiny, “important governmental

interests,” to the highest level of scrutiny, “exacting First Amendment scrutiny.”

Harris, 134 S. Ct. at 2639. Using this highest level of scrutiny, the Supreme Court

questioned whether the U.S. Constitution continues to permit the imposition of

compulsory union fees on nonunion employees. Id. at 2634. It also questioned the

current procedures for collecting compulsory union fees, specifically the validity of

defaulting nonunion employees into supporting union politics unless they register a

timely, written objection. Knox, 132 S. Ct. at 2290. This case presents this Court

with its first opportunity to apply the new, heightened level of scrutiny to these

issues. Plaintiff-Appellants submit that oral argument will be beneficial to the

resolution of the First Amendment principles at issue in this case.


iii

TABLE OF CONTENTSPage

CERTIFICATE OF INTERESTED PERSONS.........................................................i

STATEMENT REGARDING ORAL ARGUMENT .............................................. ii

TABLE OF AUTHORITIES .....................................................................................v

STATEMENT OF JURISDICTION..........................................................................1

STATEMENT OF THE ISSUES PRESENTED.......................................................2

STATEMENT OF THE CASE..................................................................................2

SUMMARY OF ARGUMENT ...............................................................................15

ARGUMENT ...........................................................................................................20

I. STANDARD OF REVIEW...........................................................................20

II. THE COMPULSORY UNION FEE EXPERIMENT IS INCOMPATIBLE WITH THE FIRST AMENDMENT .............................................................20

A. Compulsory Union Fees Are an Experiment That Failed ...................20

B. Workplace Compulsion Defies Legislative and Judicial Precedent .........................................................................22

C. Compulsory Union Fees Are an Undue Burden on Speech.................26

III. ALTERNATIVELY, THE FIRST AMENDMENT DOES NOT PERMIT THE UNION TO ASSUME NONMEMBERS’ CONSENT TO ITS POLITICAL ACTIVITIES............................................................................31

A. Introduction.........................................................................................31

1. Knox supports clarification and reconsideration ......................32

2. Harris supports clarification and reconsideration .....................34


iv

TABLE OF CONTENTS (cont.)Page

B. Assuming “Consent” to Supporting Union Politics Is Appropriate Only for Union Members ................................................35

C. The Supreme Court Has Never Required Nonmembers to Object Affirmatively to Paying Political Fees................................................37

1. Nonmember only cases.............................................................37

2. Mixed member and nonmember cases .....................................42

D. The First Amendment Requires That Nonmembers Opt In to Support Politics...............................................................................44

E. The Law of Prior Restraint Requires Opt In .......................................46

F. Privacy Rights Require Opt In............................................................48

G. “Fundamental Fairness” Requires Opt In ...........................................50

CONCLUSION........................................................................................................52

CERTIFICATE OF SERVICE ................................................................................54

CERTIFICATE OF COMPLIANCE.......................................................................55


v

TABLE OF AUTHORITIESPage

CASES

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) ...................................16, 28, 42

Air Line Pilots Ass'n v. O’Neill, 499 U.S. 65, 74 (1991).........................................51

Albertson’s/Max Food Warehouse, 329 N.L.R.B. 410 (1999)..........................25, 51

Andrews v. Louisville & Nashville R.R., 441 F.2d 1222 (5th Cir. 1971), aff’d, 406 U.S. 320 (1972).............................................................................17

Beck v. Commc’ns Workers of Am., 776 F.2d 1187 (4th Cir. 1985),aff’d en banc, 800 F.2d 1280 (4th Cir. 1986),aff’d, 487 U.S. 735 (1988).............................................................................29

Belhumeur v. Labor Relations Comm’n, 735 N.E.2d 860 (Mass. 2000)...........29, 30

Board of Regents v. Southworth, 529 U.S. 217 (2000)......................................27, 28

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .....................................................32

Brotherhood of Railway Clerks v. Allen, 373 U.S. 113 (1963) ..............37, 38 41, 42

Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986) .........passim

Citizens United v. FEC, 558 U.S. 310 (2010)........................................19, 26, 28, 30

College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999)................................................................................36, 45

Covenant Aviation Sec., LLC, 349 N.L.R.B. 699 (2007) ........................................25

Communications Workers of Am. v. Beck, 487 U.S. 735 (1988).......................29, 32

Davenport v. Washington Educ. Ass’n, 551 U.S. 177 (2007) .....................36, 42, 45

Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73 (1st Cir. 2007) ........................49


vi

TABLE OF AUTHORITIES (cont.)Page

Ellis v. Bhd. of Ry. Clerks, 466 U.S. 435 (1984) ..............................................passim

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) .........46, 47

Harris v. Quinn, 134 S. Ct. 2618 (2014) ..........................................................passim

Hickinbotham Bros. Ltd., 254 N.L.R.B. 96 (1981) .................................................24

International Ass’n of Machinists v. Street, 108 S.E.2d 796 (Ga. 1959), rev’d, 367 U.S. 740 (1961) ......................................................................passim

Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 555 (5th Cir. 2013) ..........................................................................20

Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277 (2012) ............passim

Lathrop v. Donohue, 367 U.S. 820 (1961) ..............................................................34

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991) ............................................27

Locke v. Karass, 555 U.S. 207 (2009) .....................................................................27

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ....................................48

National Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974) ..........................49

National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).........................22

National Steel & Shipbldg. Co., 324 N.L.R.B. 1031 (1997) ...................................24

NLRB v. Granite State Joint Bd., 409 U.S. 213 (1972) ...........................................36

Phelps Dodge Specialty Copper Prod. Co., 337 N.L.R.B. 455 (2002) ...................24


vii


Prater v. United States Parole Comm’n, 575 F. Supp. 284(S.D. Ind. 1983) .............................................................................................49

Railway Emps.’ Dep’t v. Hanson, 351 U.S. 225 (1956)........................20, 21, 26, 34

Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn, 373 U.S. 746 (1963)........31

Roberts v. United States Jaycees, 468 U.S. 609 (1984) ....................................16, 30

Shea v. Int’l Ass’n of Machinists, 154 F.3d 508 (5th Cir. 1998) ......................passim

Thomas v. Collins, 323 U.S. 516 (1945)..................................................................47

United States v. Enmons, 410 U.S. 396 (1973) .......................................................49

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000).....................26, 30

United States v. United Foods, Inc., 533 U.S. 405 (2001) ................................16, 25

Watchtower Bible & Tract Soc’y of New York, Inc. v. Vill. of Stratton,536 U.S. 150 (2002).......................................................................................48

West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ................................47


viii


UNITED STATES CONSTITUTION

U.S. Const. amend. I .........................................................................................passim

U.S. Const. amend. V.................................................................................................1

STATUTES

28 U.S.C. § 1291........................................................................................................1

28 U.S.C. § 1331........................................................................................................1

28 U.S.C. § 1337........................................................................................................1

28 U.S.C. § 2201........................................................................................................1

28 U.S.C. § 2202........................................................................................................1

National Labor Relations Act

29 U.S.C. § 159(e) .........................................................................................25

29 U.S.C. § 164(b).........................................................................................24

Railway Labor Act

45 U.S.C. § 151, et. seq. ..................................................................................1

45 U.S.C. § 152, Eleventh ...............................................................................2

FEDERAL RULES OF APPELLATE PROCEDURE

Fed. R. App. P. 34..................................................................................................... ii


ix


FIFTH CIRCUIT LOCAL RULES

Cir. R.28.2.1 ...............................................................................................................i

Cir. R. 28.2.3............................................................................................................. ii

OTHER AUTHORITIES

Andrew J. Hull, Prior Restraint and the Union Political Speech Opt-OutRequirement, 42 N. Ky. L. Rev. 27 (2015) ...................................................48

Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Notan Oxymoron, 70 U. Chi. L. Rev. 1159 (2003).............................................44

Clyde W. Summers, Freedom of Association: A Study in Labor Law and Political Theory, 16 Comp. Lab. L.J. 262 (1995)...........................23

Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (rev. & expanded ed. 2009) ...................10, 44

Right to Work States, www.nrtw.org/rtws.htm........................................................24


1

STATEMENT OF JURISDICTION

This case arises under the First and Fifth Amendments to the United States

Constitution, which guarantee the right of autonomy of speech and association and

due process of law in the context of the Railway Labor Act (“RLA”), 45 U.S.C.

§ 151 et seq. Subject matter jurisdiction arose in the court below under 28 U.S.C.

§§ 1331 and 1337, and pursuant to 28 U.S.C. §§ 2201 and 2202, to declare the

Plaintiff-Appellants’ constitutional rights.

On December 3, 2014, the lower court certified this case as a national class

action of nonunion employees required to pay compulsory union fees to

Defendant-Appellee Transport Workers Union of America, AFL-CIO (“Union”).

(ROA.1546). The United States intervened on December 12, 2014, to defend the

constitutionality of the RLA. (ROA.1570).

The lower court, on March 30, 2015, granted the Union’s August 11, 2014

motion for summary judgment and denied Plaintiff-Appellants’ September 19,

2014 cross motion for summary judgment. (ROA.1611).

Plaintiff-Appellants timely filed their Notice of Appeal on April 14, 2015.

(ROA.1625). Accordingly, this Court has appellate jurisdiction, pursuant to 28

U.S.C. § 1291, over the lower court’s final Order and Judgment of March 30,

2015. (ROA.1611); (ROA.1622).


2

STATEMENT OF THE ISSUES PRESENTED

1. Can nonmembers of the Union be forced, despite constitutional limits,

to fund union activities?

2. If the answer is, “yes, nonmembers can be required to fund union

bargaining, but not union politics,” then the question is whether the Union may

structure nonmembers’ choice regarding the funding of union politics in such a

way as to automatically default nonmembers into supporting union politics unless

they timely object in writing?

STATEMENT OF THE CASE

Course of Proceedings and Disposition Below

Under the RLA, 45 U.S.C. § 152, Eleventh, Congress allows employers and

labor unions to compel represented employees to join or financially support a

union as a condition of employment. In this case, Plaintiff-Appellants Jose Serna,

Mary Richardson, Roberto Cruz, Santos Cordero, Sari Madera, Ralph Anderson,

Warren Lambert, Greg Hofer, and Kent Hand (“Workers”) decline to join the

Union and object to two aspects of compelled union fees. As nonmembers of the

Union, they object to being forced to give any financial support to the Union and to

the fact that the Union automatically defaults them into supporting its politics.

To establish and enforce their First Amendment rights with regard to the

compulsory union fees, the Workers filed a class action complaint with three


3

counts on June 27, 2013. (ROA.21). The first count challenges the constitutionality

of the requirement that nonmembers pay any compulsory union fees. (ROA.31-32).

A second count states an alternative claim: if some compulsory union fees (e.g., for

“bargaining” costs) are constitutional, and others are not (e.g., for “political”

costs), it is unconstitutional for the Union to structure the nonmembers’ choice in

such a way as to default them into supporting union political expenses. (ROA.32-

34). The third count states another alternative claim: the Union cannot

constitutionally require nonmembers to object repeatedly, on an annual basis, to

supporting its political and ideological expenses; and it cannot extract from non-

members any fees it admits cannot be charged to them. (ROA.34-35).

On July 29, 2013, the Workers asked the district court to certify a nation-

wide class of nonmembers who are represented by the Union and forced to pay

compulsory fees to it. (ROA.75). On October 9, 2013, the Workers amended their

complaint to add additional plaintiffs. (ROA.724).

The Union filed an answer to both the original, (ROA.190), and amended,

(ROA.768), complaints and opposed class certification. (ROA.199).

On August 11, 2014, the Union moved for summary judgment and informed

the lower court that part of the Workers’ third count was moot because the Union

had, subsequent to the lawsuit being filed, repealed its requirement that nonmem-

bers annually renew their objections to supporting its political and ideological


4

expenses. (ROA.1097); (ROA.1099). On September 19, 2014, the Workers filed

their response and a cross motion for summary judgment. (ROA.1203);

(ROA.1209).

On December 3, 2014, the lower court certified this case as a national class

action of nonunion employees required to pay the Union compulsory fees.

(ROA.1546). The United States gave notice on December 12, 2014, that it was

intervening in Count I to defend the constitutionality of the provisions of the RLA

authorizing compulsory union fees. (ROA.1570).

On March 30, 2015, the district court granted the Union’s motion for

summary judgment and denied the Workers’ cross motion for summary judgment.

(ROA.1611) (Order); (ROA.1622) (Final Judgment). The Workers timely filed

their Notice of Appeal on April 14, 2015. (ROA.1625).

The Workers appeal the lower court’s summary judgment as to their Count I

claim, which challenges the constitutionality of all compelled union fees, and their

Count II claim, which challenges the Union’s choice structure that defaults the

Workers into supporting its politics. The Workers do not appeal their Count III

claims.


5

Statement of Facts

The Workers are or were employed by Envoy Air, Inc., formerly American

Eagle Airlines, Inc., as Fleet Service Clerks (Serna,1 Richardson, Cordero, and

Madera) and as a former Fleet Service Crew Chief (Cruz), and by Southwest

Airlines Co., as Flight Attendants (Anderson, Lambert, Hofer, and Hand).

(ROA.1611-1612). The Workers all resigned membership in the Union, but are or

were covered by Union contracts that require the discharge of any employee who

fails to join or financially support the Union. (ROA.1612); (ROA.1615);

(ROA.1430); (ROA.1419-1421).

Composition of the Mandatory Financial Support

Regular Union dues include money spent for collective bargaining and for

political, ideological, and other non-bargaining expenses. (ROA.1345-1346);

(ROA.1615). Nonmembers cannot be compelled to pay for political, ideological,

and other non-bargaining expenses. Ellis v. Bhd. of Ry. Clerks, 466 U.S. 435, 457

(1984); Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 769-70 (1961). For clarity

and brevity here, these two broad and mutually exclusive categories of union

expenses will be labeled “bargaining” and “political.” The initial division between

bargaining and political expenses is made unilaterally by the Union, without prior

notice to the Workers or an opportunity for hearing. (ROA.1346-1347).

1 Jose Serna is no longer employed by Envoy Air, Inc.


6

The Procedure for Collecting Mandatory Financial Support

The Union unilaterally created its Transport Workers Union of America

Policy on Agency Fee Objection2 (“Policy”) for the collection and disposition of

compulsory union fees. (ROA.1296-1299); Record Excerpts Tab 3. The Policy is

structured to create two “default” decision points for nonmembers, (ROA.1296);

(ROA.1298), both of which strongly slant the playing field to the Union’s

pecuniary and political advantage.

First Default Decision Point

The Union’s Policy requires every nonmember to pay an amount equal to

full Union membership dues, including the political portion, or lose his or her job.

(ROA.1296); (ROA.1363-1365); (ROA.1374). Thus, under that Policy, the first

“decision” point is that, by default, every nonmember employee automatically pays

both the bargaining and political portions of the Union dues. (ROA.1296);

(ROA.1374). Thus, the Union guarantees that the political portion of its dues flows

automatically from an employee’s pocket into the Union’s coffers unless the non-

member takes timely affirmative action to stop the outflow. (ROA.1296). This opt-

2 The Policy the Union gives to the Workers and class members is published in TWU Express, found at ROA.1346-1347. The Union prints the Policy in a tiny font that is barely legible. (ROA.1321); (ROA.1363). For the convenience of the Court, and when not trying to highlight the illegibility of the Policy, the Workers direct the Court to an enlarged, artificially legible copy of the Policy, which is at ROA.1296-1299; Record Excerpts Tab 3. One Worker wrote to the Union telling it he needed a “magnifying glass” to read the Policy. (ROA.1375); (ROA.1377).


7

out, instead of opt-in, default is the focus of the second issue presented in this

appeal.

The Union requires that a nonmember affirmatively object in writing during

a narrow thirty-one day window period in January. (ROA.1296). A nonmember

who disagrees with the default position—supporting the Union’s politics—must

navigate this “objection window,” which is closed most of the year. (ROA.1296);

(ROA.1306-1307).

If a nonmember objects during that narrow, annual thirty-one day window,

still more is required of him or her to perfect the objection. To stop the outflow of

money for politics, the nonmember must plan, draft, and mail or deliver individual

written objection notices. (ROA.1296); (ROA.1353); (ROA.1358); (ROA.1360).

Objection notices must provide the Union with the nonmember’s home address,

and they must be signed by the nonmember before mailing. (ROA.1296).

Mailing the objection notice to the Union brings its own set of requirements.

The objection notice must be mailed to two separate entities: the Union and its

local. (ROA.1296). The nonmember must purchase at least two envelopes,

research the names and addresses of the Union and its local, make a copy of the

notice, pay for sufficient postage to send the notice and copy to two separate

addresses, and mail the notice and the copy. (ROA.1296). If a nonmember does not

own a copier, making the additional copy requires additional time, travel, and


8

expense. The objection must be postmarked to the Union’s International Secretary

Treasurer and the local union by the January deadline. (ROA.1296).

Each of the foregoing steps is required to stop the outflow of political

money, and recover the nonmember employee’s money. (ROA.1296-1298). Thus,

the Union’s first default decision point allows it automatically to collect political

money, to which it has no legal claim, from employees’ salaries without their

actual consent, or even their knowledge.

Second Default Decision Point

The second default decision point is relevant to the first issue raised in this

appeal: are compulsory union fees constitutional? Toward the end of each year, the

Union publishes in the closing pages of its magazine, TWU Express, an

“Independent Auditor’s Report” that includes a schedule containing the Union’s

division of its expenses between bargaining (what the Union calls “chargeable”)

and political (“nonchargeable”) categories. (ROA.1345-1346). Following that

schedule, in a font so small it challenges the reader’s vision, (ROA.1321);

(ROA.1363); (ROA.1375); (ROA.1377), the Union explains that nonmembers may

initiate a challenge to contest its unilateral division of bargaining and political

expenses. (ROA.1347).

Unlike other information contained in the magazine, the TWU Express’ table

of contents contains no reference to the Independent Auditor’s Report or the


9

challenge Policy. (ROA.1328). Nonmembers who might want to invoke the Policy

apparently are expected to stumble upon this information on their own, if at all.

See (ROA.1352) (one Worker noted he had “never noticed the agency fee policy”

in TWU Express and had only found out about the option to object because of a co-

worker’s research efforts); (ROA.1357-1358); (ROA.1363).3

Unless a nonmember affirmatively mails an additional letter to initiate a

“challenge” to the Union’s unilateral calculation, the Union automatically assumes

that the nonmember agrees with its determination of how the money is to be

divided. (ROA.1298-1299). Thus, the second default “decision” point is that

nonmembers who do not take a second step automatically accept the Union’s

unilateral, self-interested, and ex parte calculation of the amounts it spent on

bargaining versus political expenses. (ROA.1298-1299).

This additional objection to challenge the Union’s calculation has to be

timely perfected under the Union’s Policy. (ROA.1298-1299). Perfecting the

“challenge” also requires overcoming procedural hurdles the Union unilaterally

establishes. It takes nine paragraphs of instructions in the Policy to describe those

hurdles. (ROA.1298-1299). By setting the default for nonmembers to “I automati-

cally agree with the Union’s calculation,” the Union defaults nonmembers into

3 If a nonmember had previously objected “during that calendar year,” the Union would send its Policy to the nonmember and the nonmember would not have to search for it. (ROA.1297).


10

waiving any legal interest in the money to which both the Union and the

employees have an arguable legal claim and that is subject to reasonable dispute.

What the Science of Behavioral Economics Reveals About the Union’s Objection Policy

Dr. John Balz served as the “lead researcher” for the authors of the New

York Times best-selling book Nudge,4 and wrote initial drafts of some sections of

the book for the authors, Richard H. Thaler and Cass R. Sunstein. (ROA.1378).

(Dr. Balz’s Declaration is at Record Excerpts Tab 2.) Nudge addresses behavioral

economics, a science that examines how people make financial and other

decisions. Specifically, Nudge looks at how structuring a choice (the book uses the

terminology “choice architecture”) strongly influences a person’s ultimate

decisions. (ROA.1378-1379). Choices can be framed in a manner designed to

influence a person’s decision in a preferred direction, while not completely

foreclosing less preferred choices. Thus, the framer of a choice can influence and

determine the outcome to its favor. (ROA.1378); (ROA.1380-1384).

A simple example of choice architecture is a school cafeteria’s decision to

put certain food items at eye level and other food at ankle level. Through the

placement of food options, the cafeteria structures the students’ choice to favor

food placed at eye level.

4 Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (rev. & expanded ed. 2009).


11

Dr. Balz’s expert opinion is that the Union’s two default settings structure

nonmember choice in a way that greatly favors its own political and financial

agenda, while disfavoring and disadvantaging the Workers’ and other

nonmembers’ property rights, free speech, and political autonomy. (ROA.1382-

1384).

Dr. Balz identifies various ways the Union structures its Policy to transfer

political money from employees’ pockets into the Union’s coffers. First is the

Union’s use of defaults. (ROA.1382-1384). If the initial default were set so that

nonmembers would keep their own money unless they decided otherwise and took

action (i.e., opted in to support union politics), then the default would be aligned

with the status quo: each party would keep its own money and nothing would

change hands without an affirmative response. However, by structuring its Policy

to transfer money automatically from nonmembers to the Union at the first default

“decision” point, the Union causes the nonmembers’ money to change hands, even

though they have done nothing to relinquish their money or authorize such a

transaction. (ROA.1381-1384).

The Union structures the second default such that employees relinquish their

legal claim to money reasonably in dispute. Again, if the employee does nothing,

the Union keeps for itself all of the fees to which both the Union and the employee

may have a legal claim. (ROA.1298-1299); (ROA.1383-1384).


12

As Dr. Balz explains, there exists a “Status Quo Bias,” which reflects the

“human tendency toward inertia or non-action.” (ROA.1381). Once individuals

choose to enroll in a program, they normally stick with that choice for long periods

of time. (ROA.1381). That is true even if individuals have been defaulted into that

choice. (ROA.1381).

A 2001 study Dr. Balz cited found that when individuals were allowed to opt

into a 401(k) retirement program, only 37.4% enrolled. In sharp contrast, when the

program was structured to enroll individuals automatically, and individuals were

required to opt out to avoid that choice, enrollment soared to 85.9%. (ROA.1381).

Those vastly different outcomes are not, according to Dr. Balz, indicative of

employees’ actual preferences, but are due to the manner in which the choices are

structured. (ROA.1381). Dr. Balz cites multiple studies that demonstrate the power

of structuring a decision through the use of a default. (ROA.1381-1382).

Dr. Balz’s expert opinion concludes that the Union’s use of the first default

discussed above results in nonmembers’ money flowing to the Union for political

purposes not by voluntary and knowing acts, but by operation of the Union’s

choice architecture alone. In contrast, under an opt-in structure, no money for

political purposes changes hands without a nonmember’s clear decision and

authorization. (ROA.1382).


13

A “channel factor”—a barrier created or removed by those structuring the

choice—is the second way the Union’s choice architecture affects the rights of

employees. (ROA.1382). For example, Dr. Balz cites a Yale University study in

which the school wanted to encourage its students to get a tetanus shot. Students

were given identical information about the risks and benefits of the shot and were

told where they could receive the shot. One group of students, however, was also

given a map directing them to the building where the shot was being administered.

Providing that small, additional piece of information increased the inoculation rate

from 3% to 28%. (ROA.1382).

As Dr. Balz points out, the additional value of a map seems minimal to an

outsider because finding out where a building is located does not require a huge

investment of time or resources. But, this small factor proved significant, and not

providing it inhibited students’ chances of getting the shot. (ROA.1383).

The Union’s Policy contains many channel factors that deter nonmembers

from retaining both their own political money and their interest in the reasonably

disputed fees. Dr. Balz notes that in the case of letters and forms, lengthy text and

confusing terms are common channel factors. When channel factors are combined

with default options, the default becomes even more powerful and difficult to

overcome. (ROA.1383).


14

One confusing term in the Union’s Policy, according to Dr. Balz, is the

reference to the Union’s political activities as “nonchargeable,” an “unintuitive

term that does not help employees assess how those funds would be used.”

(ROA.1383). Instead, employees who might object must gather information from

the Union to try to determine what it considers nonchargeable and whether its

unilateral calculations are correct. (ROA.1383).

For nonmembers to keep their own political money, they must act on the

Union’s information—published in very small type—that requires them to draft a

letter, make copies of the letter, and send the letter to two different locations within

a thirty-one day deadline. (ROA.1383). If a nonmember thinks the Union’s

calculation of the collective bargaining amount is incorrect, he must take a series

of additional steps that act like channel factors. (ROA.1383-1384). The failure to

provide a map, discussed above, pales in comparison to the channel factors the

Union has created to separate employees from the political funds to which they

have sole title, and the disputed fees to which both the Union and the employees

may have a legal claim.

As Dr. Balz found, the combined power of the Union’s default options and

channel factors tilts against nonmember employees who have personal preferences

not to pay fees for political purposes. (ROA.1384). The Union uses the Policy it

imposes upon nonmembers as a tool to nudge (push) employees toward Union


15

membership and payment of fees equal to full union dues. (ROA.1384). “As a

result, an unknown number of employees are giving political money [to the Union]

that they would not otherwise give . . . for activities they would not agree to and

would prefer not to support financially.” (ROA.1384).

The Workers do not want to be compelled to support the Union at all.

(ROA.1306); (ROA.1311); (ROA.1317); (ROA.1321-1322); (ROA.1352-1354);

(ROA.1359); (ROA.1363-1364); (ROA.1374). Therefore, they do not want their

money or their legal interests defaulted to the Union, or to be forced to chase after

their own money to reclaim it.

SUMMARY OF ARGUMENT

The Workers filed this suit to change the law. The district court was

reluctant to forge new law, saying “it is not the role of this Court to deviate from

established, binding jurisprudence.” (ROA.1616). The Workers understand that

this Court, too, may feel itself bound by the Supreme Court’s past decisions

permitting compulsory union fees, even though the rationale for those decisions

has now been abrogated.

The Workers believe, however, that a different result is mandated by the

stringent level of constitutional scrutiny the Supreme Court has applied in its more

recent decisions concerning forced union fees. Harris v. Quinn requires that

“‘exacting First Amendment scrutiny’” be used when evaluating compulsory


16

unionism schemes. 134 S. Ct. 2618, 2639 (2014) (quoting Knox v. Serv. Emps.

Int’l Union, Local 1000, 132 S. Ct. 2277, 2289 (2012)). Knox defined the exacting

scrutiny applicable here as follows:

[M]andatory associations are permissible only when they serve a “compelling state interest[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.” Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association.”

132 S. Ct. at 2289 (citation omitted) (quoting Roberts v. United States Jaycees, 468

U.S. 609, 623 (1984), and United States v. United Foods, Inc., 533 U.S. 405, 414

(2001)).

The Supreme Court has not yet applied such exacting scrutiny to abrogate

the long-standing and questionable rule that union fees for bargaining purposes can

be compulsory under the RLA. However, the Court has held that its prior decision

in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), upholding such fees

for public employees, has “questionable foundations.” Harris, 134 S. Ct. at 2638;

see id. at 2632-34. And, significant here, the Court suggested that its earlier

decisions allowing forced fees under the RLA failed to consider sufficiently First

Amendment principles. See id. at 2627-30.

The original justification for compulsory fees sat on a very narrow perch,

i.e., the legislative judgment that the elimination of “free riders” is necessary for


17

“labor peace.” Knox, 132 S. Ct. at 2290. The validity of that justification no longer

exists because “free-rider arguments . . . are generally insufficient to overcome

First Amendment objections.” Id. at 2289. “The mere fact that nonunion members

benefit from union speech is not enough to justify an agency fee.” Harris, 134 S.

Ct. at 2636.

Thus, this Court should apply exacting First Amendment scrutiny and find

that all compulsory union fees imposed under the RLA violate the Workers’ rights

of autonomy of speech and association and due process of law. We understand,

however, that the Court may be reluctant to hold that prior Supreme Court

decisions are no longer binding as a result of Knox and Harris, although we believe

it can do so. Cf. Andrews v. Louisville & Nashville R.R., 441 F.2d 1222, 1224 (5th

Cir. 1971), aff’d, 406 U.S. 320 (1972) (this Court declined to follow earlier on

point Supreme Court precedents where subsequent Supreme Court decisions

suggested the Supreme Court would later overrule those precedents). Therefore,

we here present for the Court’s consideration, or to preserve for Supreme Court

review, the arguments that forced fees are unconstitutional.

If this Court upholds the constitutionality of some compulsory fees, it must

then address the second issue raised. This Court has already determined that union

procedures for collecting and using compelled fees must minimize the burden on

speech. “[W]e are called upon to protect the free speech rights of objecting


18

employees from intrusive union procedures. The free speech rights whose

protection is at issue here lie at or near ‘the core’ of the First Amendment.” Shea v.

Int’l Ass’n of Machinists, 154 F.3d 508, 517 (5th Cir. 1998) (citations omitted).

Thus, Union collection policies must “‘be carefully tailored to minimize the

infringement.’” Id. at 514. Burdensome restrictions, such as slanted defaults and

adverse channel factors, which enrich the Union’s political coffers at the expense

of the Workers’ First Amendment rights, cannot be allowed. They “serve[] only to

further the illegitimate interest of the [Union] in collecting full dues from

nonmembers who would not willingly pay more than the portion allocable to

activities germane to collective bargaining.” Id. at 515.

Since Shea, the Supreme Court in Knox explained that the historic “dissent is

not to be presumed” language originally used in International Ass’n of Machinists

v. Street, 367 U.S. 740, 774 (1961), was only “dicta,” an “offhand remark” that did

not “consider the broader constitutional implications of an affirmative opt-out

requirement.” Knox, 132 S. Ct. at 2290. The Court also explained that its earlier

cases did not analyze that dicta under constitutional standards, and noted that prior

decisions “permitting the use of an opt-out system . . . approach, if they do not

cross, the limit of what the First Amendment can tolerate.” Id. at 2291. The Court

then held that when a union “imposes a special assessment” it “may not exact any

funds from nonmembers without their affirmative consent.” Id. at 2296. The Court


19

had no reason to go further, because only a special assessment was at issue in

Knox.

Using the constitutional measuring stick Knox requires, and recognizing that

the original presumption of consent to funding union politics applied only to

voluntary union members, this Court should hold that the nonmembers’ choice

cannot constitutionally be structured so that they automatically lose their money

and their political autonomy unless they affirmatively fight to reclaim them.

Permitting the Union to create a choice structure that benefits its political

program at the expense of the nonmembers’ constitutional free speech and

associational rights opens the door to all sorts of mischief. If the default choice

were that nonmembers keep their own money, the Union, like every other

candidate or group seeking political support, would be required to muster its most

persuasive appeal for funds.

But, when the choice is structured to default the nonmembers’ political

money into the Union’s political machine, the Union understandably (not legally)

takes money to which it has no legal claim, and erects as many barriers as possible

to nonmembers who want to reclaim their own money. “Prolix laws chill speech

for the same reason that vague laws chill speech.” Citizens United v. FEC, 558

U.S. 310, 324 (2010). If protecting speech required “substantial litigation over an


20

extended time . . . [t]he interpretive process itself would create an inevitable,

pervasive, and serious risk of chilling protected speech.” Id. at 326-27.

This Court has already determined that annual objections cannot be required

because they “serve[] only to further the illegitimate interest of the [Union] in

collecting full dues from nonmembers who would not willingly pay more than the

portion allocable to activities germane to collective bargaining.” Shea, 154 F.3d at

515. The same is true ab initio: an “opt-out system creates a risk that the fees paid

by nonmembers will be used to further political and ideological ends with which

they do not agree.” Knox, 132 S. Ct. at 2290. It follows from Knox that the Court

should hold that the Union’s objection requirement violates the First Amendment.

ARGUMENT

I. STANDARD OF REVIEW

This Court reviews de novo a grant of summary judgment and applies the

same standard as the trial court. Johnston & Johnston v. Conseco Life Ins. Co., 732

F.3d 555, 561 (5th Cir. 2013).

II. THE COMPULSORY UNION FEE EXPERIMENT IS INCOMPATIBLE WITH THE FIRST AMENDMENT

A. Compulsory Union Fees Are an Experiment That Failed

More than sixty years ago, the Supreme Court embarked on an experiment

with compulsory union fees. In Railway Employes’ Department v. Hanson, the


21

Court acknowledged the controversial nature of this compulsion: “The ingredients

of industrial peace” are not only “numerous and complex,” but also “may well vary

from age to age,” with the result being that what “would be needful one decade

might be anathema the next.” 351 U.S. 225, 234 (1956).

Hanson was hardly a ringing endorsement of compulsory unionism. It even

noted that the elimination of compulsory unionism was easily within the “police

power of a State.” Id. at 233. “The decision rests with the policy makers, not with

the judiciary.” Id. at 234.

Decades later, the Court in Harris described Hanson’s analysis of the

constitutionality of compulsory union fees for bargaining purposes as “a single,

unsupported sentence that its author essentially abandoned a few years later.” 134

S. Ct. at 2632. Hanson applied only the rational basis test to uphold compulsory

union fees. See 351 U.S. at 234 (“The task of the judiciary ends once it appears that

the legislative measure adopted is relevant or appropriate to the constitutional

power which Congress exercises.”).

Only five years after Hanson, Justice Black, dissenting in International

Ass’n of Machinists v. Street, correctly foresaw that the Court’s remedy of making

some union expenses chargeable and some not would fail workers and be a “very

lucrative” boon for “special masters, accountants and lawyers” who, “with

sufficient skill in accounting, algebra, geometry, trigonometry and calculus” would


22

“extract the proper microscopic answer from the [union’s] voluminous and

complex accounting records.” 367 U.S. 740, 795-96 (1961); see Harris, 134 S. Ct.

at 2630. Justice Black predicted that this accounting and legal morass would

“promise[] little hope for financial recompense to the individual workers whose

First Amendment freedoms have been flagrantly violated.” 367 U.S. at 796.

Permitting compulsory union fees, thus requiring nonmembers to chase after their

money to avoid supporting union politics, was, in Justice Black’s opinion,

prohibited by the First Amendment and “should be stopped dead in its tracks.” Id.

at 797.

Experience shows that the First Amendment violation is so compelling that

compulsory unionism can no longer be written off as a controversial but allowable

legislative policy. As shown below, Justice Black was clairvoyant regarding this

experiment with employees’ constitutional rights. As the Supreme Court recently

wrote, “deference in matters of [legislative] policy cannot . . . become abdication in

matters of law.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579

(2012). After sixty years of the controversial experiment with compulsory

unionism, deference has become abdication, and a course correction is necessary.

B. Workplace Compulsion Defies Legislative and Judicial Precedent

The original justification for compulsory fees was the legislative judgment

that elimination of “free riders” is necessary for “labor peace.” Knox, 132 S. Ct. at


23

2290. “Free riders” is a derisive term referring to nonunion employees who are

forcibly included within a bargaining unit covered by a union-negotiated contract,

and who, therefore, choose not to support the union financially.

Employees, however, often have different interests. Professor Clyde W.

Summers noted that the minority is often actually made worse by a union’s

collective bargaining agreement. Clyde W. Summers, Freedom of Association: A

Study in Labor Law and Political Theory, 16 Comp. Lab. L.J. 262, 267 (1995).

Summers, reviewing Sheldon Leader’s book, noted that such an “unwilling

beneficiary is not caught by any plausible charge of free riding.” Id.

Knox cites to Summers’ article for several examples of groups benefitting

others without anyone thinking the benefit created “free riders” who should be

forced to pay for the benefits. 132 S. Ct. at 2289-90. Summers’ article concludes:

“tolerance of free riders is one of the hallmarks of a free market system and an

inescapable condition in any complex democratic social system.” Summers,

Freedom, supra, at 268. Free markets do not impose compulsion on “free riders,”

and neither does the First Amendment.

Time and experience have swept the free rider/labor peace justification into

the dustbin of history. For one thing, its original legal justification is invalid

because “free-rider” arguments are “generally insufficient to overcome First

Amendment objections.” Knox, 132 S. Ct. at 2289. “The mere fact that nonunion


24

members benefit from union speech is not enough to justify an agency fee.”

Harris, 134 S. Ct. at 2636.

Time has also shown that the factual basis for the free rider/labor peace

claim cannot be sustained. Pursuant to the power given them by Congress under 29

U.S.C. § 164(b), half of the states (twenty-five) have chosen to pass Right to Work

laws prohibiting compulsory union fees under the National Labor Relations Act.

Right to Work States, www.nrtw.org/rtws.htm (last visited June 16, 2015). Is there

a marked difference in “labor peace” between neighboring states that have Right to

Work laws and those that do not? There is not, and never has been, any greater

workplace violence or strife in states that permit so-called “free riders” than in

those that do not.

The argument for compulsion as a necessary component of labor peace is

even weaker given the fact that even in states permitting compulsion, Congress has

decreed that compulsory union fees are not mandatory or automatic, but rather are

a matter of voluntary agreement between the employer and union, which the

employer may lawfully reject. Phelps Dodge Specialty Copper Prod. Co., 337

N.L.R.B. 455 (2002); Nat’l Steel & Shipbuilding Co., 324 N.L.R.B. 1031 (1997);

Hickinbotham Bros., 254 N.L.R.B. 96 (1981). This destroys the claim of a

compelling interest in “solving” the “free-rider” problem. The existence of Right to

Work states, and “open shop” workplaces, creates unlimited opportunities to show


25

that directly comparable workplaces experience “labor war” whenever employees

are free to decline to support a union. Yet, the Union and Intervenor United States

produced not one shred of record evidence in support of the idea that freedom of

choice creates labor war.

Even when an employer and union agree to compulsion, Congress allows

National Labor Relations Act employees to vote to “deauthorize” that compulsion.

29 U.S.C. § 159(e); Covenant Aviation Sec., LLC, 349 N.L.R.B. 699 (2007);

Albertson’s/Max Food Warehouse, 329 N.L.R.B. 410 (1999). If compulsory fees

were necessary for “labor peace,” then how can compulsion, and the “interests” it

supposedly protects, be left to the vagaries of collective bargaining or the whims of

employers, employees, or the states?

In short, whatever the justification for “exclusive representation,” its

successful operation in Right to Work states and “open shops” in non-Right to

Work states demonstrates that compulsory union fees cannot constitutionally be

levied, because they fail the Knox exacting-scrutiny standard that “compulsory fees

can be levied only insofar as they are a ‘necessary incident’ of the ‘larger

regulatory purpose which justified the required association.’” 132 S. Ct. at 2289

(quoting United States v. United Foods, Inc., 533 U.S. 405, 414 (2001)).


26

C. Compulsory Union Fees Are an Undue Burden on Speech

“The distinction between laws burdening and laws banning speech is but a

matter of degree. The Government’s content-based burdens must satisfy the same

rigorous scrutiny as its content-based bans.” United States v. Playboy Entm’t Grp.,

Inc., 529 U.S. 803, 812 (2000). In Citizens United v. FEC, the Court rejected the

idea that a statute limiting speech could be saved through an interpretation “that

force[s] speakers to retain a campaign finance attorney” to interpret “an amorphous

regulatory interpretation.” 558 U.S. 310, 324 (2010). “Prolix laws chill speech for

the same reason that vague laws chill speech.” Id. If protecting speech against a

statute requires “substantial litigation over an extended time, . . . [t]he interpretive

process itself would create an inevitable, pervasive, and serious risk of chilling

protected speech.” Id. at 326-27.

As Justice Black predicted in Street, supra pages 21-22, the Hanson and

Street decisions have inflicted precisely that upon employees who object to a

union’s agency fee calculation and must litigate to protect their rights. The process

the Union uses here is especially worthy of censure, but an undue burden

necessarily exists in all of the line-drawing cases that Justice Black described in

Street, 367 U.S. at 795-96.

The major problem is vague standards and the difficulty dividing chargeable

from nonchargeable expenses, which then compels ever more litigation by


27

employees seeking to protect their free speech rights. In Lehnert v. Ferris Faculty

Ass’n, 500 U.S. 507 (1991), the Justices had trouble deciding what was protected

speech and what was not. A map is needed to determine at what point Justice

Blackmun wrote for the Court or only for a plurality. Id. at 511.

For example, in 1984, the Court in Ellis v. Brotherhood of Railway Clerks

held that “[t]he expenses of litigation not having . . . a connection with the

bargaining unit are not to be charged to objecting employees.” 466 U.S. 435, 453

(1984). Yet, seven years later, the Court in Lehnert was “split into three

irreconcilable factions” as to the chargeability of litigation. Locke v. Karass, 555

U.S. 207, 208 (2009). And, eighteen years after Lehnert, despite Ellis, the Court

decided some litigation expenses incurred outside the bargaining unit were

chargeable. Id. at 219-20.

In Board of Regents v. Southworth, 529 U.S. 217 (2000), the Supreme Court

considered applying its procedures for resolving union fee disputes to university

student fee disputes. The Court agreed that compulsory union fee precedents were

applicable. Id. at 231. However, the Court concluded that the remedy applied in the

union fee cases was too complex for student fee cases! Id. at 231-32.

Showing great candor, the Southworth Court noted that even in dealing with

unions, “whose functions are, or so we might have thought, well known and

understood,” and even after a “long history” of judicial involvement, “we have


28

encountered difficulties in deciding what is germane [i.e., chargeable to

employees] and what is not.” Id. The Court concluded:

[D]ifferent Members of the Court reached varying conclusions regarding what expressive activity was or was not germane to the mission of the [union]. If it is difficult to define germane speech with ease or precision where a union . . . is the party, the standard becomes all the more unmanageable in the public university setting.

Id. at 232.

More recently, the Supreme Court admitted that it “has struggled repeatedly

with this issue” of separating lawfully chargeable and nonchargeable union

activities, and that “litigating such cases is expensive” and “a heavy burden” on

objecting nonmembers. Harris, 134 S. Ct. at 2633. The Workers’ First Amendment

rights are not protected in a scheme that requires protracted litigation when even

Supreme Court Justices struggle and reach varying conclusions. Thus, the current

scheme of compulsion creates “an inevitable, pervasive, and serious risk of chilling

protected speech.” Citizens United, 558 U.S at 326-27.

The record contains the declaration of Emily Pitts Dixon, former office

manager and legal records custodian at the National Right to Work Legal Defense

Foundation (“Foundation”). (ROA.1385). The Foundation has provided the

lawyers and support staff for the employee-plaintiffs who have challenged union

fee calculations in all compulsory union fee cases decided by the U.S. Supreme

Court beginning with Abood in 1977. (ROA.1386).


29

The Foundation kept records of the time involved in protecting

nonmembers’ First Amendment rights. The results are staggering. Ellis was filed in

1973 and not decided by the Supreme Court until 1984. The case required 5,922.90

attorney hours and 6,637.60 hours of support staff work. (ROA.1387).

Communications Workers of America v. Beck, 487 U.S. 735 (1988), was filed in

1976 and not decided by the Supreme Court until 1988. It involved 4,502.40 hours

of attorney work, and 2,030.20 hours of support staff work. (ROA.1387). The

panel decision in the Fourth Circuit, which was followed by an en banc decision,

described the litigation in just the district court as “4,000 pages of testimony, the

introduction of over 3,000 documents, and innumerable hearings and adjudication

of motions.” Beck v. Commc’ns Workers of Am., 776 F.2d 1187, 1194 (4th Cir.

1985), aff’d en banc, 800 F.2d 1280 (4th Cir. 1986), aff’d, 487 U.S. 735 (1988).

Lehnert was filed in 1978 and not decided by the Supreme Court until 1991. The

case consumed 4,475.80 hours of attorney work, and 1,875.75 hours of support

staff work. (ROA.1387).

Belhumeur v. Labor Relations Commission, 735 N.E.2d 860 (Mass. 2000), is

another Foundation-supported case challenging a union’s fee calculations. That

case, which involved the National Education Association, was filed in 1988 and

not concluded until 2004. It consumed 8,058.40 attorney hours, 7,177.30 support

staff hours, $161,680.80 in court costs, expert fees, and travel expenses, and


30

5,019.44 hours of Westlaw research. The transcript costs alone in Belhumeur were

$53,000, all to attempt to determine the proper “chargeable vs. nonchargeable”

division of a $300 compulsory union fee for dissenting teachers. (ROA.1387-

1388); (ROA.1406-1409).

In Citizens United, the Court held that when a citizen is required to engage

in complex and prolix litigation to vindicate speech, the statute creating such a

burden cannot stand. 558 U.S. at 324-27. Playboy Entertainment Group held that

“[e]rror in marking [the] line” between protected and unprotected speech “exacts

an extraordinary cost.” 529 U.S. at 817. The results are in, and the experiment of

requiring employees to object and challenge a union’s fee calculations to protect

their political autonomy is a failure.

The result is a system in which even the Supreme Court has difficulty

determining the applicable standards, and the cost of sorting through union

expenses is financially prohibitive for individual employees. The line between

protected and unprotected speech in the union dues context is both uncertain in the

drawing and too expensive in the purchase to survive the requirement of exacting

First Amendment scrutiny that “mandatory associations are permissible only when

they serve a ‘compelling state interes[t] . . . that cannot be achieved through means

significantly less restrictive of associational freedoms.’” Knox, 132 S. Ct. at 2289

(emphasis added) (quoting Roberts, 468 U.S. at 623).


31

Justice Black was 100% right in his prediction that the current system would

provide no protection for employees. Street, 367 U.S. at 795-96. Thus, the only

way to protect the First Amendment rights of nonunion employees is to hold that

all compulsory union fees are unconstitutional, a conclusion that both prongs of the

Knox exacting scrutiny test require.

III. ALTERNATIVELY, THE FIRST AMENDMENT DOES NOT PERMIT THE UNION TO ASSUME NONMEMBERS’ CONSENT TO ITS POLITICAL ACTIVITIES

A. Introduction

The typical union dues dollar is spent, in part, on politics and, in part, on

collective bargaining. Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn, 373

U.S. 746, 753-54 (1963) (noting that unions typically use dues for a variety of

purposes); Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 767 (1961) (Congress

is aware of the long history of intensive political involvement by RLA unions).

The Union’s spending habits are no exception. (ROA.1297-1299).

The RLA sets an upper limit on the amount unions can coercively collect

from workers who do not join the union representing their craft or class of

employees. Coerced collections may not exceed the collective bargaining

(“chargeable”) portion of union dues because unions are not authorized by

Congress or the Constitution to forcibly extract the political (“nonchargeable”)


32

portion from nonmembers. Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 762-

63 (1988) (citing Ellis, 466 U.S. at 448 (an RLA case)).

Congress could hardly, consistent with the First Amendment, make unions

the employees’ statutory representative for electing politicians or lobbying

Congress. See id. at 760-61. At the same time, the First Amendment protects the

rights of individuals to voluntarily join an organization and to support its public

policy positions. Boy Scouts of Am. v. Dale, 530 U.S. 640, 647-49 (2000). The

question here is, how do you decide which employees voluntarily want to turn over

to the Union their property for use in political activities, and which do not?

Confusion over that issue began with dicta in Street, the “offhand remark,”

Knox, 132 S. Ct. at 2290, that employees who do not want their money used for

politics must object to have their rights protected: “dissent is not to be presumed—

it must affirmatively be made known to the union.” Street, 367 U.S. at 774. For the

following fifty years the Supreme Court repeated that dicta without explaining how

and to whom it should apply. Knox has changed that.

1. Knox supports clarification and reconsideration

In 2012, the Supreme Court resolved confusion over the issue of whether

employees who do not want to support union politics must first object (or opt out):

“By authorizing a union to collect fees from nonmembers and permitting the use of

an opt-out system for the collection of fees levied to cover nonchargeable


33

expenses, our prior decisions approach, if they do not cross, the limit of what the

First Amendment can tolerate.” Knox, 132 S. Ct. at 2291.

Knox explained that the “dissent is not to be presumed” dictum of Street was

only an “offhand remark” with no precedential value:

In making that offhand remark, we did not pause toconsider the broader constitutional implications of an affirmative opt-out requirement. Nor did we explore the extent of First Amendment protection for employees who might not qualify as active “dissenters” but who would nonetheless prefer to keep their own money rather than subsidizing by default the political agenda of a state-favored union.

Id. at 2290.5 Knox also explained that later cases did not analyze Street’s “dicta”

under constitutional standards. Id.

Moreover, Knox reaffirmed that “the procedures used by a union to collect

money from nonmembers must satisfy a high standard,” id., specifically the First

Amendment’s traditional “least restrictive means” test. See id. at 2289. Because

that test must be applied to the Union’s Policy, including its slanted defaults that

automatically deprive nonmembers of their free speech and associational rights,

and Knox established that the “dissent is not to be presumed” dictum is not a

5 That was not the first time the Supreme Court noted Street’s lack of careful analysis. In 1984, the Court explained that Street and other prior “opinions did not, nor did they purport to, pass upon the statutory or constitutional adequacy of the suggested remedies” described in earlier RLA cases. Ellis, 466 U.S. at 443.


34

binding precedent, the district court erred in holding that “current case law makes

clear that the opt-out structure for chargeable fees is permissible,” (ROA.1618).

2. Harris also supports clarification and reconsideration

In 2014, the Supreme Court in Harris squarely examined its precedents

permitting any compulsory union fees, going back to the earliest RLA cases.

Harris first criticized Hanson, calling its First Amendment analysis “thin,” and its

ruling “narrow.” Harris, 134 S. Ct. at 2629. The Court next noted that Street failed

to reach the fundamental question of the constitutionality of compulsory union

fees, id. at 2630, and that only four Justices “fully agreed with” the remedies

discussed in the Court’s opinion. Id. at 2630 n.6.

Harris summarized those two pivotal cases that undergird the

constitutionality of compulsory fees under the RLA in this way: “Street was not a

constitutional decision at all, and Hanson disposed of the critical question in a

single, unsupported sentence that its author essentially abandoned a few years

later.” Id. at 2632; see Lathrop v. Donohue, 367 U.S. 820, 878-80 (1961) (Douglas,

J., dissenting).

Those now discredited and undermined decisions of earlier decades, which

used a wrong or no constitutional test, cannot preclude this Court from striking

down the Union’s “opt-out” regime. Moreover, a careful reading of past precedent

supports the Workers’ position that their consent must be affirmatively given


35

before political money can be collected from them. Thus, this Court, applying the

strict scrutiny Knox and Harris mandate, including a least restrictive means

analysis, should hold that an opt-in system is the only constitutional way to resolve

whether nonmembers want to subsidize the Union’s politics.

B. Assuming “Consent” to Supporting Union Politics Is AppropriateOnly for Union Members

As mentioned above, Street “stated in passing that ‘dissent is not to be

presumed—it must affirmatively be made known to the union by the dissenting

employee.’” Knox, 132 S. Ct. at 2290 (quoting Street, 367 U.S. at 774). Context is

critical to understanding the meaning of that dicta and the nature of the issue

actually resolved in Street. In that case all employees, as a condition of

employment, were required to “join the unions of their respective crafts” and had

to “pay dues, fees, and assessments to the unions,” parts of which were used for

political activities to which some “members” objected. Int’l Ass’n of Machinists v.

Street, 108 S.E.2d 796, 807 (Ga. 1959), rev’d, 367 U.S. 740 (1961).

Thus, every employee in Street was a union “member”—some voluntarily,

some by compulsion. Unlike the Union here, the union in Street recognized no

nonmembers. Having no way to determine who wanted to be a union member and

who was coerced into union membership, the Court faced the question of how to

sort that out for purposes of relief. The Court seized on the offhand notion that


36

“dissent is not to be presumed,” a notion that logically applies to union members,

but not to workers who have rejected union membership.

Unions have every right to assume that voluntary members support their

political choices and activities, unless told otherwise. However, applying “dissent

is not to be presumed” to employees who have already opted for nonmembership is

both nonsensical and counterintuitive. As Knox asked, “isn’t it likely that most

employees who choose not to join the union that represents their bargaining unit

prefer not to pay the full amount of union dues?” 132 S. Ct. at 2290.

Unions have no more power over nonmembers than they have “over the man

in the street.” NLRB v. Granite State Joint Bd., 409 U.S. 213, 217 (1972). Here,

unlike the situation in Street, the Union has no justification, and certainly no

constitutional right, to assume nonmembers support anything it does, especially its

political choices and activities. See Davenport v. Washington Educ. Ass’n, 551

U.S. 177, 185 (2007) (“unions have no constitutional entitlement to the fees of

nonmember-employees”). Knox teaches that the “dissent is not to be presumed”

rule is “a historical accident” when applied to nonmembers. Knox, 132 S. Ct. at

2290. “Courts ‘do not presume acquiescence in the loss of fundamental rights.’” Id.

(quoting Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666, 682 (1999)). Thus, nonmembers’ consent to union political spending

can never be presumed.


37

C. The Supreme Court Has Never Required Nonmembers to Object Affirmatively to Paying Political Fees

As explained supra pages 6-15, the Union’s Policy creates two default

decision points at which nonmembers involuntarily (by default) agree to support

the Union’s politics. The first default decision pushes nonmembers to pay the

admitted political portion of Union dues, even though the Union has no legal claim

to it. The second default decision involves the remaining portion of dues—that

portion the Union unilaterally has determined involves only “chargeable”

bargaining expenses but which nonmembers might dispute. The Union defaults

nonmembers into releasing their claims to that portion of the fees in which they

both have a legal interest. (ROA.1383-1384).

Prior Supreme Court decisions that involve employee-plaintiffs who were a

mix of union members and nonmembers have created some ambiguity regarding

the “offhand remark” that “‘dissent is not to be presumed.’” Knox, 132 S. Ct. at

2290 (quoting Street, 367 U.S. at 774). However, the Court has never imposed an

objection requirement at the first decision point when the employee-plaintiffs were

all nonmembers, and it clearly has never imposed it on nonmembers in the mixed

(member and nonmember) federal cases. That is true from the earliest precedents.

1. Nonmember only cases

Brotherhood of Railway Clerks v. Allen, involved only nonmembers. 373

U.S. 113, 116 (1963). There, the first default decision point was not at issue


38

because the union claimed entitlement to a fee equal to dues, and the nonmembers

claimed they owed nothing. Id. Because both parties claimed the entire fee, as a

practical matter only the second decision point, whether to dispute the amount of

fees, was at issue.

Moreover, the Supreme Court held that those nonmembers satisfied any

dissent requirement merely by suing the union in federal court. Id. at 119 n.6.

Indeed, the Court permitted nonmembers to dissent as late as the trial, and even

after remand from the decision of the Supreme Court. Id. at 119. The Court treated

the obligation to dissent or object merely as a perfunctory requirement.

Further support for that conclusion comes from Allen’s suggestion that a

future remedy (once the contested amount spent on bargaining was determined)

would be “a reduction of future such exactions from [nonmembers] by the same

proportion.” Id. at 122. Once the division between collective bargaining and

political expenses was made, the nonmember would no longer pay the political

amount at all. The future first default decision point in Allen, unlike the first

default decision point in this case, would automatically free the nonmember from

supporting union politics. It would not be set to cause title to the nonmember’s

money to change hands automatically based upon his failure to dissent.

Chicago Teachers Union, Local No. 1 v. Hudson also only involved

nonmembers. 475 U.S. 292, 294 (1986). The Supreme Court’s opinion in that case


39

contains its most extensive discussion of the procedural aspects of compulsory

union fees. Unlike nonmembers in this case, nonmembers in Hudson were

automatically opted out of supporting the political portion of union dues. Id. at

295. The Hudson union unilaterally calculated that only 5% of dues was spent on

politics, and therefore 95% was chargeable to nonmembers for bargaining. The

union had agreed with the employer that the fee to be deducted from nonmembers’

pay was limited to the “proportionate share” (95%), even in the absence of

objection. Id.

If nonmembers wanted to support union politics in Hudson, they had to take

an affirmative step, i.e., opt in, to pay the portion of dues the union calculated was

political. Hudson’s discussion about objecting focused on what is the second

decision point in this case—what procedures should be used for handling and

deciding ownership of the 95% of the dues amount to which both the union and the

nonmembers might lay claim.

Several important conclusions can be drawn from Hudson’s discussion of

the dispute at the second decision point. First, the Court did not think it appropriate

to impose any deadline (other than the normal limitations periods applying to

litigation) for nonmembers’ objections at the second decision point. The Court

noted that four plaintiff-nonmembers filed some sort of objection letter, but three


40

others never objected before filing suit against the union. Id. at 297. The Court

treated all seven identically.

Second, in describing two bright lines for resolving the procedural issues,

Hudson laid down the following principles:

unions should never be allowed to collect admittedly political fees from

nonmembers, and then later return them, id. at 305-07; and,

contested fees (i.e., those “reasonably in dispute”) should be explained,

verified, and escrowed until a hearing over their ownership is provided.

Id. at 306-07, 309-10.

Those bright lines eviscerate the Union’s assumption that all nonmembers

consent to paying for the Union’s politics unless they opt out. The Union violates

Hudson’s first bright line, because the Union defaults the first decision point to

permit it to keep the political portion of the fees to which it admits it has no legal

claim. In contrast, a presumption that nonmembers dissent to paying for politics is

consistent with both Hudson and the “least restrictive means” analysis traditionally

used in free speech cases and must be used here. Harris, 134 S. Ct. at 2639; Knox,

132 S. Ct. at 2289.

Although Hudson addresses the obligation of nonmembers to object, that is

always in the context of the second decision point (the challenge to the chargeable

calculation), where title to the “chargeable” portion of the money is disputed. That


41

is why Hudson requires unions to give nonmembers “sufficient information to

gauge the propriety of the union’s fee,” so they can be educated as to whether they

should object to the union’s unilateral claim to the bargaining portion of union

dues. 475 U.S. at 306.

Other than the amount itself, nonmembers need no information from the

Union, audited, verified or otherwise, regarding the political amount—the amount

to which the Union admits it has no legal claim. But, requiring a union to provide

information about the amount to which both the union and the nonmember may

have legal claim is logical. That is why Hudson did not require an escrow of

amounts “no dissenter could reasonably challenge.” Id. at 310. Just as any amount

to which the nonmember could not reasonably lay claim should flow automatically

to the Union, so any amount as to which the Union has disclaimed any interest

should remain automatically with the nonmember.

In short, Allen and Hudson, which involved only nonmembers, demonstrate

that the first decision point must always default to protect the nonmember’s

property, so he or she can keep the money to which the Union admits it has no

claim. “Dissent is not to be presumed” applies, if at all, only to the second decision

point, where the nonmember has to decide whether to contest the union’s claim to

the rest of the fee and challenge the union’s calculation of that disputed amount.


42

2. Mixed member and nonmember cases

Abood v. Detroit Board of Education involved both union members and

nonmembers. 431 U.S. 209, 212 n.2 (1977). Abood said two things about remedies

and dissent. First, Abood noted that the prior decisions in Street and Allen were

statutory, not constitutional, in nature. Id. at 240. Thus, those decisions are not the

final word on whether requiring dissent at the first decision point is consistent with

nonmembers’ constitutional rights, even if it might be with their statutory rights.

Abood further observed that Allen relaxed the dissent requirement that Street

posited: “Allen can be viewed as a relaxation of the conditions established in Street

governing eligibility for relief.” Id. at 239 n.39. In sum, the dissent requirements

were neither a matter of constitutional doctrine nor written in stone.

Second, and more important, Abood tied the dissent obligation to union

members. The Court said that individual dissent, rather than a sweeping injunction

against a union, is the correct remedy, “because those union members who do wish

part of their dues to be used for political purposes have a right to associate to that

end ‘without being silenced by the dissenters.’” Id. at 238 (emphasis added)

(quoting Street, 367 U.S. at 772-73). When nonmembers refuse to subsidize union

politics, they do not silence members. Money collected from nonmembers is not

the property of the union or its members, but instead is “other people’s money.”

Davenport v. Washington Educ. Ass’n, 551 U.S. 177, 189 (2007).


43

Ellis v. Brotherhood of Railway Clerks also involved both members and

nonmembers. 466 U.S. 435, 439 n.2 (1984). The Court there considered the proper

division of “challenged expenditures” and stated a test for determining which

expenses are chargeable and which are not. Id. at 448. Ellis, therefore, was

concerned with the second decision point, at which both the union and the

nonmember claim the same money, and the question is whether the challenged

expenditures are for “chargeable” collective bargaining or for “nonchargeable”

politics. Thus, any reference in Ellis to dissenting or objecting applies only to the

second decision point, not to the first.

However, Ellis supports Knox’s observation that “acceptance of the opt-out

approach appears to have come about more as a historical accident than through

the careful application of First Amendment principles.” Knox, 132 S. Ct. at 2290.

Ellis explained that the Court’s prior “opinions did not, nor did they purport to,

pass upon the statutory or constitutional adequacy of the suggested remedies.” 466

U.S. at 443.

In sum, until Knox, the Supreme Court never carefully applied First

Amendment principles to determine whether dissent should be or cannot be

presumed when nonmembers’ speech and association rights are at stake. Indeed,

careful analysis of past precedent shows that the Court has never required dissent

from nonmembers at the first decision point. Only at the second decision point has


44

it done so, if at all. As discussed next, presuming dissent by nonmembers at the

first decision point is required under traditional First Amendment analysis.

D. The First Amendment Requires That Nonmembers Opt In toSupport Politics

Justice Breyer’s dissent in Knox cites a law review article6 written by

Sunstein and Thaler, the authors of the New York Times bestseller Nudge.7 132 S.

Ct. at 2307. The law review article, like Nudge, addressed “choice architecture”

and its effect on decision making. As Plaintiff-Appellants’ expert, Dr. Balz,

explains, choice architecture is about the behavioral science of decision making.

(ROA.1378-1384).

Justice Breyer noted in Knox that “default rules play an important role” in

individual decision-making. 132 S. Ct. at 2307. The Justices understood how

choice architecture, specifically setting the defaults in compulsory union fee cases,

affects employees’ decisions about their First Amendment rights. Justice Breyer

was particularly concerned about those employees who have no “well-defined

preferences” in this area. Id.

Justice Breyer’s concern is appropriate, as Dr. Balz shows that the issue of

defaults extends to all human tendencies. Humans naturally tend toward inertia or

6 Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. Chi. L. Rev. 1159, 1161 (2003).

7 Thaler, supra note 4.


45

non-action. (ROA.1381). Here, the way the Union has structured the initial

decision point to default to its own benefit upsets the status quo and causes money

(political money, i.e., “other people’s money,” Davenport, 551 U.S. at 187) to

change hands due to inaction. Because the Union has no legal claim to collect the

political portion of its dues from nonmembers, the status quo should remain intact

with nonmembers retaining their own money unless they affirmatively choose to

give it to the Union.

The Union is a state actor under the RLA. See Shea v. Int’l Ass’n of

Machinists, 154 F.3d 508, 516 (5th Cir. 1998). The Workers’ “free speech rights

whose protection is at issue here lie at or near ‘the core’ of the First Amendment.”

Id. at 517. Therefore, the Union’s procedure for collecting fees from nonmembers

“cannot be tolerated” unless it passes strict scrutiny. Harris, 134 S. Ct. at 2639;

accord Knox, 132 S. Ct. at 2289. If that money is for politics, the government has

absolutely no reason, much less a compelling one, to hand the Union title to the

Workers’ money without their express approval. Thus, structuring the Workers’

choice, through defaults or channeling, to force a transfer in ownership to the

Union violates the First Amendment. “Courts ‘do not presume acquiescence in the

loss of fundamental rights.’” Knox, 132 S. Ct. at 2290 (quoting Coll. Sav. Bank v.

Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999)).


46

If the default were set the other way (i.e., the Workers would have to opt in

to pay for the Union’s politics), the status quo would remain intact. No money

would change hands based only on the Union’s default to benefit itself. Opt in

would insure that nonmembers will waive their free speech rights on political

matters only knowingly, voluntarily, and intelligently. Only that accords with the

First Amendment and what the “least restrictive means” test requires.

The Union’s second default decision point also causes a legal interest to

change hands. By default, the Workers’ right to challenge the Union’s fee

calculation and seek a further reduction is extinguished under the Union’s scheme.

The Union automatically owns all the remaining disputed fees unless the Worker is

willing to object again and mount a litigation-style challenge. Because the Union’s

interest in the disputed money is only statutory, while the Workers’ interest is

constitutional, the same careful tailoring to minimize free speech rights applies.

Knox, 132 S. Ct. at 2291. The use of a default and channeling to deprive the

Workers of their property and their free speech rights cannot be tolerated at this

decision point either.

E. The Law of Prior Restraint Requires Opt In

Free speech cases outside of the union dues context show the serious

constitutional flaws in the Union’s choice architecture. The First Amendment

protects not only the right to speak, but the right not to speak. Harper & Row,


47

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985); West Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 645 (1943) (Murphy, J., concurring).

When the Union sets the first default decision to “You agree to give us your

political money,” it forces Workers to speak in the Union’s tongue and requires

them to chase after the Union to recover their political autonomy—losses that can

never be fully recovered.

In Thomas v. Collins, 323 U.S. 516 (1945), Texas claimed union officials

were required to obtain a government-issued license—an organizer’s card—before

giving pro-union speeches to supporters. The organizer’s card met “merely a

previous identification requirement” and was granted as a “ministerial, not

discretionary,” matter. Id. at 538. The Supreme Court nevertheless found the prior

registration requirement “quite incompatible with the requirements of the First

Amendment.” Id. at 540.

If the First Amendment forbids a registration requirement to promote unions,

then, likewise, “registration” to oppose unions cannot be required. The Union’s

requirement that nonmembers register their dissent to opt out of supporting the

Union’s politics is a prior restraint on their speech.

Here, the violation is further exacerbated because employees must go

through a series of steps to recover their own money. The Union, in the role of

government speech regulator, unilaterally determines which part of the Workers’


48

speech will be protected (the amount returned) and which will not be protected (the

amount the Union retains). No hearing occurs at this point. The Workers, of

course, can never “take back” the speech the Union has already voiced using their

money. The best they can do is chase after the Union in some legal forum to

recover the amount unlawfully collected or used. The chase, as discussed in Emily

Pitts Dixon’s declaration, (ROA.1385-1388), comes at an extremely high price

and, therefore, restrains speech greatly. That cannot be squared with traditional

First Amendment rules.8

F. Privacy Rights Require Opt In

In Watchtower Bible & Tract Society of New York, Inc. v. Village of

Stratton, 536 U.S. 150 (2002), the Court found that a requirement to obtain a

permit to speak, even though routinely granted, infringed upon the First

Amendment right of privacy of belief because it required speakers to give up one

aspect of their anonymity. The Court acknowledged that “a significant number of

persons . . . support causes anonymously” because they may fear “‘economic or

official retaliation’” or “‘desire to preserve as much . . . privacy as possible.’” Id. at

166 (quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-42 (1995)).

8 For a more detailed discussion of the prior restraint problem, see Andrew J. Hull, Prior Restraint and the Union Political Speech Opt-Out Requirement, 42 N. Ky. L. Rev. 27 (2015).


49

Privacy is not only a safeguard to autonomy of opinion, it is a safeguard

against verbal and physical violence. Labor unions have a well-documented history

of such acts. See, e.g., Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73 (1st Cir.

2007); Prater v. United States Parole Comm’n, 575 F. Supp. 284, 285 (S.D. Ind.

1983). Fear of retaliation is well-founded, because labor unions are exempt not

only from the normal rules of defamation protecting private individuals, National

Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974), but from federal rules

restraining them from violence (including “blowing up” property) if carried out in

furtherance of “legitimate” union objectives. United States v. Enmons, 410 U.S.

396, 398, 408 (1973).

Such fears of serious physical and personal losses that arise from clashes

with union officials trigger another choice architecture factor: “Loss Aversion

Bias.” Psychologically, a person would rather go without a profit than incur a loss;

the human tendency is to protect what has already been earned.9 In experiments, a

rough rule of thumb has emerged: people will expend about twice as much

personal cost to keep something they currently own than they would spend to

acquire it originally. In other words, the loss of something already possessed

makes someone twice as miserable as gaining a new, equal windfall would make

9 Thaler, supra note 4, at 33-34.


50

that person happy.10 Individuals do not want to risk loss that might result from

having to dissent publicly against a union. Thus, protecting the Workers’ privacy

concerns requires opt in. Workers should not have to “go public” when opposing

the Union’s political agenda.

In sum, the First Amendment does not allow the government and unions to

slant employees’ decision-making processes to make it effortless for them to give

up their political money, while making it difficult or burdensome for them to get

their own money back. After Knox, Harris, and Shea, the “least restrictive means”

test mandates the Union’s use of an opt-in system, so that it will have to ask

permission before taking the nonmembers’ money for political purposes.

G. “Fundamental Fairness” Requires Opt In

In Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986),

the Court established procedural guidelines to protect nonmembers’ political

autonomy, while permitting unions to collect the portion of dues spent on

collective bargaining. The Supreme Court held that:

[b]asic considerations of fairness . . . dictate that the potential objectors be given sufficient information to gauge the propriety of the union’s fee. Leaving the nonunion employees in the dark about the source of the figure for the agency fee-and requiring them to object in order to receive information-does not adequately protect [them].

10 Id.


51

Id. at 306. Even if this were not a constitutional case, “[b]asic considerations of

fairness” surely require the Union to allow nonmembers, who are by definition

potential objectors, to keep their own money, unless they choose to contribute it to

political causes.

The Union is the Workers’ fiduciary agent, which should not be self-dealing

or slanting the defaults at the Workers’ expense. See Air Line Pilots Ass’n v.

O’Neill, 499 U.S. 65, 74 (1991) (“The duty of fair representation is . . . akin to the

duty owed by other fiduciaries to their beneficiaries.”); id. at 75 (“Just as [other]

fiduciaries owe their beneficiaries a duty of care as well as a duty of loyalty, a

union owes employees a duty to represent them adequately as well as honestly and

in good faith.”).

In Shea, this Court found that Hudson’s concept of fairness applies to union

forced fee procedures even absent state action requiring constitutional protections.

Shea held that a union’s annual objection requirement violated both “Hudson’s

requirement that the First Amendment infringement be minimized” and the union’s

“duty of fair representation.” Shea, 154 F.3d at 517. Shea rejected the views of

other circuits that had upheld annual objection requirements under the duty of fair

representation. See id. at 515-16.

When Shea was decided, the Supreme Court had not yet explicitly held that

the most stringent constitutional standard, exacting scrutiny, applies to protect


52

nonmembers’ First Amendment rights in the union fee context. Given that the

Supreme Court has now explicitly so held in both Knox and Harris, this Court

should go beyond Shea to rule that opt in is required both as a matter of

fundamental fairness under the duty of fair representation and under First

Amendment exacting scrutiny.

CONCLUSION

The Court should declare unconstitutional under the First Amendment the

Railway Labor Act’s authorization of agreements requiring the payment of union

fees as a condition of employment and the Union’s agreements to that effect. If the

Court concludes that it cannot do so, it should hold that the Union’s requirement of

objection to pay less than full dues is unconstitutional under the First Amendment.

In either event, the Court should reverse the decision of the lower court to the

extent that it is inconsistent with this Court’s decision and remand this case for the

application of the law consistent with this Court’s decision.


53

Respectfully submitted this 17th day of June 2015.

s/ Bruce N. Cameron David E. Watkins Bruce N. Cameron Texas Bar No. 20922000 [email protected]@jenkinswatkins.com Milton L. Chappell Jason E. Winford [email protected] Texas Bar No. 00788693 Glenn M. Taubman [email protected] [email protected] & WATKINS Nathan J. McGrathA Professional Corporation [email protected] Cole Avenue, Suite 200 c/o National Right to Work Dallas, Texas 75204-0817 Legal Defense FoundationTel: 214-378-6675 8001 Braddock Road, Suite 600Fax: 214-378-6680 Springfield, Virginia 22160

Tel: 703-321-8510Fax: 703-321-9319

Counsel for Plaintiff-Appellants and the class they represent


54

CERTIFICATE OF SERVICE

I hereby certify that, on June 17, 2015, I filed and served the attached copy

of the Plaintiff-Appellants’ Brief on counsel of record through this Court’s

CM/ECF System.

s/ Bruce N. Cameron Bruce N. Cameron

Dated June 17, 2015


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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief complies with the type limitations

provided in Fed. R. App. P. 32(a)(7)(B) because it contains 13,468 words. This

brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the

type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been

prepared in a proportionally spaced typeface using Microsoft Word 2010 in Times

New Roman 14-point font. Footnotes are in Times New Roman 13-point font.

s/ Bruce N. Cameron Bruce N. Cameron

Counsel for Plaintiff-Appellants


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