Shea v. Intl Assn Machinists , 154 F.3d 508 ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10490
ELIZABETH A. SHEA, ET AL.,
Plaintiffs,
ELIZABETH A. SHEA; JAN CHRISTY;
PEGGY GALLERANI; VICTOR GARZA;
NORMA KUNZLER; JOSEPHINE MORTON;
DEBBIE NICKELL; DONNA ROZENBURG;
JAMIE SELVA,
Plaintiffs-Appellants,
versus
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, an unincorporated
association,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Texas
September 14, 1998
Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiffs-appellants (Appellants) are Southwest Airlines
(Southwest) customer service agents who are represented by the
defendant-appellee International Association of Machinists and
Aerospace Workers (IAM) pursuant to a union shop agreement.
Appellants contend that the IAM’s annual objection requirement,
whereby an employee can opt out of full union membership only if he
notifies the union in writing every year, violates their rights
under the Railway Labor Act, 45 U.S.C. § 151 et seq. (RLA). The
district court granted summary judgment in favor of the IAM,
finding that the IAM’s procedures do not violate the union’s duty
of fair representation. We disagree with the district court, and
reverse the grant of summary judgment.
Facts and Proceedings Below
Because Southwest is a “carrier by air,” its labor relations
are governed by the RLA. See 45 U.S.C. § 181. Under Section 2,
Eleventh of the RLA, an employer and a union can enter into “union
shop agreements” whereby all employees must become members of the
union as a condition of continued employment. See 45 U.S.C. § 152,
Eleventh. Pursuant to this section, Southwest and the IAM entered
into such an agreement, which is included as a union security
clause in their collective bargaining agreement. This union
security clause requires that the Southwest employees who are
represented by the union either become members of the union or
financially support the union as a condition of continued
employment by Southwest.
Appellants chose not to become members of the union, but, in
accordance with the union shop agreement, they paid an agency fee
to the union for their pro rata share of the expenses incurred by
the union in providing representational services to the employees.
The current dispute between the IAM and the appellants
concerns the IAM’s objection procedures, that is, the procedures by
which employees are required to notify the union that they will not
2
become members and will only pay the objector fee. The IAM’s
objection procedure requires that the objectors provide the IAM
with written notice during a 30-day window period every year. The
IAM does not honor written (or other) “continuing objections,” and
thus the objector must renew his written objection every year or he
will be obligated to pay full union dues. The sole issue before
this Court is whether the annual objection renewal requirement is
permissible as applied to written continuing objections.
As a reminder of this annual objection requirement, the IAM
publishes a notice to its dues objectors in its newsletter, “The
Machinist.” From 1990 through 1993, the notice was published in
the December issue of “The Machinist,” reminding the objectors to
renew their objection during the upcoming January 30-day window
period. “The Machinist” was not published in December of 1994, so
the notice for the 1995 year was printed in the November 1994
issue.
The IAM maintains a database to keep track of employees and
designates them as “members,” “nonmember agency fee payors,” or
“objecting nonmember agency fee payors.” An employee who objects
is designated as an “objecting nonmember agency fee payor.” If
that employee renews his objection the following year, he remains
an “objecting nonmember agency fee payor”; if he fails to object,
however, he is redesignated as a “nonmember agency fee payor.” If
a new employee does not object to becoming a member of the union,
he is automatically designated a “member,” and he does not have to
provide any notice to renew his membership.
3
The purpose of the database is to allocate the union’s annual
expenses as “chargeable” and “non-chargeable.” An objecting member
is not required to fund the “non-chargeable” expenses because they
are not related to the union’s representational services. Many of
these non-chargeable expenses have been defined by the Supreme
Court, and include expenses for political activities and other
activities that are not related to collective bargaining.
According to the IAM, the costs of collective bargaining and other
activities are allocated among the members and nonmembers every
year, and an amount is determined that fee objectors must pay for
the following year. All employees are then sent a notice that
indicates what percentage of their dues were spent on collective
bargaining activities, the reduced amount which must be paid by fee
objectors, and the requirements for becoming/remaining fee
objectors.
All nine appellants filed objections in 1990, 1991, and 1992,
but only five filed objections in 1993. None of the appellants’
objections were received by the IAM during the 1994 window period.
The reason for this was that the IAM had moved its headquarters two
years earlier. The address of the new headquarters was listed in
the annual notice, but appellants, who did not then realize this,
continued to mail their objections to the old address. By January
of 1994 the forwarding order had expired and the objection letters
were returned to appellants. Upon receiving the returned
objections, appellants resubmitted their objections to the correct
address after the window period had ended, but these objections
4
were rejected by the IAM as untimely. Because they did not file
objections during the required window period, the appellants became
obligated to pay an agency fee that was equivalent to full union
dues; the reduced annual agency fee for an “objecting nonmember
agency fee payor” would have been approximately $42 less than the
full fee.
In order to avoid this liability for full dues, appellants
relied on written “continuing objections” to any noncollective
bargaining related expenditures that they had filed in earlier
years. Since 1989, each of the appellants had filed at least one
such written objection that contained the statement, “the objection
is to be considered as a continuing objection and remain in force
from year-to-year until canceled by me.” The IAM, however, does
not recognize continuing objections, and instead requires objectors
to renew their objections annually.
Appellants challenged this annual renewal requirement, arguing
that their written continuing objections ought to be recognized and
honored. The district court rejected this argument and granted the
IAM’s motion for summary judgment and dismissed the case. The
district court applied the Duty of Fair Representation standard
(DFR standard) and held that neither the thirty-day window period
nor the annual renewal requirement violated the IAM’s duty to
fairly represent the interests of all employees in its collective
bargaining unit.
5
Discussion
In 1934, Congress made major revisions to the Railway Labor
Act of 1926 that significantly strengthened the position of the
union towards the carrier. One important revision was that the
union selected by a majority of employees in the bargaining unit
was deemed the exclusive bargaining agent of all those employees,
regardless of whether they were union members. 45 U.S.C. § 152,
Ninth. On its face, this provision of the RLA requires only that
this exclusive bargaining agent act on behalf of all employees, but
it does not explicitly require that the exclusive bargaining agent
act equitably toward all employees. There is thus no explicit
statutory directive that the union fairly represent the minority
interests of certain classes of employees. To curb abuses, the
courts created a duty of fair representation. This judicially
created duty of fair representation dictates that the exclusive
bargaining agent has the duty not to just represent all employees,
but to represent them equitably and fairly, regardless of their
class, or whether they are union members. See generally 2 The
Developing Labor Law 1409 (Patrick Hardin, ed., 3d ed. 1992).
This duty of fair representation was first announced in Steele
v. Louisville & Nashville R.R., 65 S. Ct. 226 (1944), where the
Supreme Court held that a union could not exercise its statutory
power as exclusive bargaining representative in a manner that
discriminated against employees who were not, and could not become,
union members because of their race. The Steele Court reasoned
that when Congress conferred exclusive representative bargaining
6
power on the union, it implicitly created a duty to act fairly
toward all employees. See Steele, 65 S. Ct. at 232 (1944) (finding
that the RLA implicitly “expresses the aim of Congress to impose on
the bargaining representative of a craft or class of employees the
duty to exercise fairly the power conferred upon it in behalf of
all those for whom it acts without hostile discrimination against
them.”). The Court further held that if the duty of fair
representation was violated, an individual union member could seek
“the usual judicial remedies of injunction and award of damages .
. . .” Id. at 234.1 In Vaca v. Sipes, 87 S. Ct. 903 (1967), the
Supreme Court specifically defined the DFR standard. The Court
stated that a union breaches its duty of fair representation when
its actions are “arbitrary, discriminatory, or in bad faith.” Id.
at 916.
Steele created the duty of fair representation in the context
of a racially discriminatory union that did not allow black
employees to become union members. The duty of fair
representation, however, was not limited to racially discriminatory
unions, rather the Court imposed the duty on all unions to fairly
1
Together with Steele, the Court announced in a companion
case, Tunstall v. Brotherhood of Locomotive Firemen and
Enginemen,65 S.Ct. 235 (1944), that the right to be represented
without discrimination was a federal right, and in Wallace Corp. v.
NLRB, 65 S. Ct. 238 (1944), issued the same day, the Court
reiterated the duty to represent the employees’ interests fairly.
Following these three cases, the Court reaffirmed the duty of fair
representation in the exclusive bargaining context several times
over the next several decades. See Ford Motor Co. v. Huffman, 73
S. Ct. 681 (1953); Syres v. Oil, Chemical & Atomic Workers Local 23,
76 S. Ct. 152 (1955); Humphrey v. Moore, 84 S. Ct. 363 (1964); see
generally 2 The Developing Labor Law 1411-12 (Patrick Hardin, ed.,
3d ed. 1992).
7
represent all union and nonunion employees regardless of why
certain employees were not union members. Under the duty of fair
representation, employees are entitled to fair representation by
the union whether they were barred from joining the union based on
their race or whether they voluntarily chose not to join. Thus, an
individual who voluntarily did not join the union could gain all
the benefits and advantages of the union’s bargaining activities at
no cost to him since he was under no obligation to financially
support the union. See Communications Workers of America v. Beck,
108 S. Ct. 2641, 2649 (1988). This situation put an unfair
financial burden on the union and its members since the unions were
legally obliged to fairly represent and act on behalf of all
employees, but could only look to union members for financial
support. By 1951, Congress had become concerned with the so-
called “free-riders,” and amended the RLA. See International Ass’n
of Machinists v. Street, 81 S. Ct. 1784, 1798 (1961) (quoting from
the House Hearings where George H. Harrison, representing the
Railway Labor Executives’ Association stated: “It is submitted that
this bill with the amendment . . . makes possible the elimination
of the ‘free rider’ and the sharing of the burden of maintenance by
all of the beneficiaries of union activity.”)
To curb the “free-rider” problem, Congress enacted section 2,
Eleventh, which authorized the union shop. Under the union shop,
employees could be compelled by their employer to contribute to the
exclusive bargaining representative as a condition of employment.
This compulsory unionism would guarantee that those who enjoyed the
8
benefits of collective bargaining agreements negotiated by the
union would share in the costs of collective bargaining. See id.
On its face, section 2, Eleventh does not merely require that
all employees contribute to the union’s collective bargaining
expenses, rather it requires that all employees become members of
the union. In other words, its literal language seems to require
that employees pay full union dues, and thereby financially support
not only the union’s collective bargaining, but all of its
political and other activities as well. This forced membership,
through which an employee could be forced to financially support
political (or other) causes which he opposes, gave rise to concerns
over First Amendment rights of free speech and association.2 In
the seminal case on the matter, International Assoc. of Machinists
v. Street, 81 S. Ct. 1784 (1961), the Supreme Court construed
section 2, Eleventh to deny the union the power to use an
employee’s funds for political causes if the employee objects and
makes his objection known to the union. Id. at 1800.
The railway employees in Street argued that section 2,
Eleventh was unconstitutional because it permitted the unions to
use the employees’ funds for political activities that they
disagreed with. The Court upheld the statute, but construed
2
The Court has found that there is sufficient state action to
implicate the First Amendment in RLA cases because the RLA
expressly states that it supersedes state law, and hence federal
law is the authority through which private rights are lost. See
Railway Employees’ Dep’t v. Hanson, 76 S. Ct. 714, 718 (1956) (“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.”).
9
section 2, Eleventh to avoid finding it unconstitutional. The
Court relied on the principle that, wherever possible, federal
statutes must be interpreted to avoid constitutional questions.
See Street, 81 S. Ct. at 1790, citing Crowell v. Benson, 52 S. Ct.
285, 296 (1932). In keeping with this principle, the Court held
that Congress did not intend “to provide the unions with a means
for forcing employees, over their objection, to support political
causes which they oppose.” Street, 81 S.Ct at 1797-98. The
legislative history supports this interpretation and reveals that
although Congress did not explicitly protect the free speech rights
of objecting employees, Congress was concerned with protecting the
rights of those who would be subject to union shop agreements. See
id. at 1798-99 (quoting extensively from the legislative history).
Based on this legislative history, the Street Court found that free
speech protection was implicit in the statute and that under
section 2, Eleventh an employee cannot be forced to contribute to
a union’s political activities if he makes his objection known. See
id. at 1803 (holding that “dissent is not to be presumed——it must
affirmatively be made known to the union by the dissenting
employee.”). Thus, after Street, a union could lawfully enforce
a union shop agreement and collect full dues from all employees who
did not let their objections be known.
At the heart of the Street opinion was the concern over the
employees’ First Amendment rights under a union shop agreement.
This concern over the First Amendment rights of objecting employees
continues to shape the evolving union shop jurisprudence.
10
In Railway Clerks v. Allen, 83 S. Ct. 1158 (1963), the Court
was presented with an issue similar to the issue in Street. The
Allen plaintiffs challenged the union shop agreement on the grounds
that money was being exacted from employees and spent on political
activities. The Allen Court relied on Street and basically
reiterated the holding of Street that section 2, Eleventh must be
construed to deny the unions the power to use an employee’s exacted
funds for political causes that the employee opposes if the
employee makes his objection known. In another RLA case, Ellis v.
Railway Clerks, 104 S. Ct. 1883 (1984), the Court expanded upon the
rights established by Street and set limits on what expenses could
be charged to objecting nonunion employees and how those charges
could be assessed.
The Supreme Court also dealt with the union shop outside the
RLA context. The National Labor Relations Act (NLRA) for example,
also contains a union shop provision, which the Court interpreted
in Communications Workers v. Beck, 108 S. Ct. 2641 (1988). The Beck
Court held that the union shop provisions of the NLRA and RLA have
the same meaning. Unlike the RLA cases, the Court did not
explicitly invoke the First Amendment, but it did rely on Street,
which construed the union shop provision of the RLA to avoid
conflicts with the First Amendment. Following Street, the Court
concluded that the union shop provision of the NLRA, like its
counterpart in the RLA, only allows unions to collect fees
necessary for collective bargaining. Id. at 2657.
11
In another line of cases involving public employee unions and
state union shop laws, the Supreme Court explicitly relied on the
First Amendment. In Abood v. Detroit Bd. of Educ., 97 S. Ct. 1782
(1977), the Court was called upon to decide the constitutionality
of a Michigan union shop law. The Court upheld the law, but
following Street and Allen, limited it so that objecting nonunion
employees did not have to pay for political (or other nongermane)
activities. The Court noted that requiring nonunion employees to
support their collective bargaining agent “has an impact upon their
First Amendment interests.” Id. at 1793. Because of these
interests, the Court sought to minimize the burden on the objecting
employee without restricting the union’s ability to recover its
collective bargaining expenses. Id. at 1800. The Court held that
broadly objecting to any ideological expenditures unrelated to
collective bargaining was sufficient and the burden would then lie
with the union to apportion its expenses between those related to
collective bargaining and all others. The Court stated:
“As in Allen, the employees here indicated in their
pleadings that they opposed ideological expenditures of
any sort that are unrelated to collective bargaining. To
require greater specificity would confront an individual
employee with the dilemma of relinquishing either his
right to withhold his support of ideological causes to
which he objects or his freedom to maintain his own
beliefs without public disclosure. It would also place on
each employee the considerable burden of monitoring all
of the numerous and shifting expenditures made by the
Union that are unrelated to its duties as exclusive
bargaining representative.” Id. at 1802-03.3
3
It should be noted that Street’s objection requirement was
imposed in a context which appeared to assume that a nonmember
employee in the bargaining unit could only object to expenditures
on specific, particular activities not germane to collective
12
This same emphasis on minimizing the interference with the
objecting employee’s free speech rights was reiterated in another
state law case, Chicago Teachers Union v. Hudson, 106 S. Ct. 1066
(1986). The Hudson Court recognized that:
“although the government interest in labor peace is
strong enough to support an ‘agency shop’ notwithstanding
its limited infringement on nonunion employees’
constitutional rights, the fact that those rights are
protected by the First Amendment requires that the
procedure be carefully tailored to minimize the
infringement.” Id. at 1074 (emphasis added).
We hold that this requirement that “the procedure be carefully
tailored to minimize the infringement” is the standard by which
bargaining of which he disapproved. That specificity requirement
was effectively done away with in Allen. As the Court explained in
Abood (97 S.Ct. at 1801 & n.39):
“The Court [in Allen] held that the employees had
adequately established their cause of action by
manifesting ‘opposition to any political expenditures by
the union,’ id., at 118, 83 S.Ct., at 1162 (emphasis in
original), and that the requirement in Street that
dissent be affirmatively indicated was satisfied by the
allegations in the complaint that was filed, 373 U.S., at
118-119, and n. 6, 83 S. Ct., at 1161-62.39
39. Allen can be viewed as a relaxation of the
conditions established in Street governing eligibility
for relief. See Allen, 373 U.S., at 129-131, 83 S.Ct. at
1167-1168 (Harlan, J., concurring in part and dissenting
in part). Street seemed to imply that an employee would
be required to identify the particular causes which he
opposed. 367 U.S., at 774-755, 81 S.Ct., at 1802-03.
Any such implication was clearly disapproved in Allen,
and, as explained today, see infra, at 1802, there are
strong reasons for preferring the approach of Allen.”
It is clear, then, that subsequent cases have relaxed the
Street objection requirement. That requirement, of course, still
exists, but at least since Abood it is clear that there is no legal
reason to require more than a written, continuing objection to all
expenditures or activities not germane to collective bargaining.
13
union shop procedures of the kind at issue here must be evaluated
under the RLA.
The objection procedure at issue in this case fails to meet
the Hudson standard; it does not minimize the infringement. The
current procedure is cumbersome to both the union and the objecting
employees because it requires annual computer entries. If the IAM
recognized continuing objections made expressly and in writing, the
employee would notify the union only once and neither the union nor
the individual would be bothered with annual database entries.
The IAM has not proffered any legitimate reason why an annual
written objection requirement is necessary when the employee has
previously furnished (and not withdrawn) a continuing written
objection. It seems to us that the unduly cumbersome annual
objection requirement is designed to prevent employees from
exercising their constitutionally-based right of objection, and
serves only to further the illegitimate interest of the IMA in
collecting full dues from nonmembers who would not willingly pay
more than the portion allocable to activities germane to collective
bargaining. Certainly the procedure that least interferes with an
employee’s exercise of his First Amendment rights is the procedure
by which an employee can object in writing on a continuing basis.
As demonstrated by this case, the current annual objection
procedure can interfere with an employee’s exercise of his rights,
because if he fails to again object, he must pay the equivalent of
full union dues and thereby support the union’s political
14
activities.4 If the IAM could bring forth a legitimate reason why
written objections must be annually renewed and cannot be
continuing, then perhaps we would have to evaluate whether the
infringement is reasonably necessary. But in the absence of such
a reason, we hold that the annual written objection procedure is an
unnecessary and arbitrary interference with the employees’ exercise
of their First Amendment rights.
Our holding today is in conflict with the holdings of the D.C.
and Sixth Circuits, which both upheld the annual objection
requirement. In Tierney v. City of Toledo, 824 F.2d 1497, 1506
(6th Cir. 1987), the court held that the union’s annual objection
requirement is not unreasonable. To reach this conclusion, the
court merely noted that Hudson had placed the burden of objection
on the employee, and from this the court leaped to the conclusion
that because the burden was on the employee, the annual objection
procedure was not unreasonable. Only a single, brief sentence of
the Tierney opinion is devoted to this issue. We disagree with
Tierney’s logic, and can see no basis for concluding that because
the employee bears the burden of objection, he must object
annually. The burden of objection was first placed upon the
employee by Street, which held that an employee’s objection “must
4
There is nothing to suggest that not requiring that written
objections be annually renewed would result in any nonmember
employee within the bargaining unit who had filed a written
objection being classified in a subsequent year as an objector when
he was then in fact willing to pay full dues. Nor is there
anything to suggest that requiring written objections to be
annually renewed was less costly or more efficient from a
bookkeeping or administrative perspective.
15
affirmatively be made known to the union by the dissenting
employee.” Street, 81 S. Ct. at 1803. Under our reading of Street
and the cases that followed, however, the Court was primarily
concerned with protecting the employees’ First Amendment rights and
minimizing the infringement on those rights. Nothing in those
cases requires repeated objection. Tierney’s reliance on Hudson is
therefore misplaced. Although Hudson, like Street, placed the
burden of objection on the employee, the Court also required that
the objection procedure be “carefully tailored to minimize the
infringement.” Hudson, 106 S. Ct. at 1074 (emphasis added). In
light of this latter requirement, we cannot agree with Tierney that
the annual objection procedure for which there is a less
burdensome, more logical alternative is “reasonable.”
We also disagree with the D.C. Circuit, which held in Abrams
v. Communications Workers of America, 59 F.3d 1373, 1381-82 (D.C.
Cir. 1995), that in light of Street’s directive that the employee
must make his objection known, the annual objection requirement was
permissible. Abrams devotes only two sentences to this issue and
merely cites Street and Tierney. For the reasons stated above, we
do not agree with Abrams in this respect.5
5
Another case, Kidwell v. Transportation Communications
International Union, 731 F. Supp. 192, 205 (D.Md. 1990), aff’d in
part, rev’d in part on other grounds 946 F.2d 283 (4th Cir. 1991),
followed the logic of Tierney and held that the annual renewal
requirement is “not unduly restrictive of plaintiffs’ rights” and
that it is a reasonable requirement “since objections are not to be
presumed.” The Kidwell court held that “the union is not required
to provide the least restrictive procedure imaginable.” If the
“imaginable” in this statement is replaced by “reasonably
practicable,” then the statement would be contrary to Hudson. We
impose no obligation on the Union that is not reasonably
16
The plaintiffs in Abrams alleged that the objection procedure
violated the union’s duty of fair representation. The Abrams court
did not explicitly base its holding on the DFR, but other courts
have. In Nielsen v. International Ass’n of Machinists and
Aerospace Workers, 94 F.3d 1107, 1113 (7th Cir. 1996), for example,
the Seventh Circuit held that the DFR standard was the appropriate
standard for reviewing the procedures related to the union shop
agreement under the NLRA. The court was not presented with the
issue of an annual renewal requirement, but it did conclude that
the union had not violated its duty of fair representation by
imposing a window period for registering objections. In support of
its holding that the DFR standard applied, the Nielsen court cited
Airline Pilots Ass’n v. O’Neill, which held that the DFR standard
announced in Vaca v. Sipes “applies to all union activity,
including contract negotiation.” Airline Pilots Ass’n v. O’Neill,
111 S. Ct. 1127, 1130 (1991) (emphasis added). In another union
shop case decided under the NLRA, the National Labor Relations
Board held that “[i]n light of the Court’s explicit directive [in
Vaca and O’Neill] that the duty of fair representation applies to
all union activity, we find inescapable the conclusion that a
union’s obligations under Beck are to be measured by that
standard.” California Saw & Knife Works, 320 N.L.R.B. 224 (1995).6
practicable, and we disagree with Kidwell.
6
The annual renewal requirement was not before the NLRB in
California Saw & Knife Works.
17
Both Nielsen and California Saw & Knife Works are
distinguishable from the current case because they were decided
under the NLRA. Some Supreme Court decisions may have arguably
indicated that under the NLRA there is not sufficient state action
to trigger constitutional protections. See Communications Workers
of America v. Beck, 108 S. Ct. 2641, 2656-57 (1988) (citing
Steelworkers v. Sadlowski, 102 S. Ct. 2339, 2350 n.16 (1982), and
Steelworkers v. Weber, 99 S. Ct. 2721, 2725 (1979)). Beck left that
issue open. Id. at 2657 (“We need not decide whether the exercise
of rights permitted, though not compelled, by § 8(a)(3) involves
state action.”). The NLRA, unlike the RLA, preserves the authority
of states to outlaw union shop agreements, and thus it may be
arguable that there is no constitutional question and that courts
deciding NLRA cases cannot directly invoke the Hudson First
Amendment standard. But the case before us arises under the RLA,
which preempts state laws that ban union shop agreements, and this
preemption has been held to be sufficient governmental action to
trigger constitutional limitations. See Beck, 108 S. Ct. at 2656-
57; Railway Employees v. Hanson, 76 S. Ct. 714 (1956). Because the
RLA is subject to constitutional limits, a reviewing court may
properly invoke the protections of the First Amendment and need not
rely on the arguably weaker DFR standard. For this reason we apply
the Hudson First Amendment standard rather than the DFR standard.
The district court in this case, however, did not follow
Hudson, and instead reviewed the objection procedures under the DFR
standard. Under the DFR, the court found that the objection
18
procedure must be upheld because it is not arbitrary,
discriminatory, or in bad faith towards the objecting nonunion
employees. The lower court’s reliance on the DFR standard is
misplaced. First, the DFR standard is not the appropriate standard
of review in this case, and second, even if the DFR were the
appropriate standard, the annual objection requirement violates it.
Since the union can give no justification for this annual
objection procedure, and since it is more cumbersome and less
efficient than a system that allows continuing written general
objections, the procedure is unreasonable and arbitrary. It is an
unnecessary and arbitrary interference with the employees’ First
Amendment rights that fails to meet the union’s duty of fair
representation as it has been defined in Vaca and O’Neill. See
Vaca v. Sipes, 87 S. Ct. 903 (1967); see also O’Neill, 111 S. Ct. at
1136 (1991) (a breach of the duty of fair representation occurs
only if the union’s actions “can be fairly characterized as so far
outside of a ‘wide range of reasonableness,’ that it is wholly
‘irrational’ or ‘arbitrary.’” (citations omitted)).
More fundamentally, we remain unconvinced that the union’s
objection procedures should even be reviewed under the DFR
standard. Even though other union shop cases have been decided
under the DFR, we will not apply the DFR standard in this case.
The DFR standard is applicable to evaluate a union’s treatment
of its members and represented nonmembers in the context of a
collective bargaining agreement, that is, when a union is
performing traditional representational union functions on behalf
19
of those that it represents. Issues such as the administration of
the collective bargaining agreement, the fairness of the IAM’s
representation of the employees in negotiations with the employer,
or how a union treats those that it represents, are susceptible to
DFR review. A highly deferential standard of review is appropriate
in those cases because the court is being called upon to review the
union’s performance of union functions and should not substitute
its own judgment of how a union should conduct its affairs. Cf.
O’Neill, 111 S. Ct. at 1135 (1991) (“Congress did not intend
judicial review of a union’s performance to permit the court to
substitute its own view of the proper bargain for that reached by
the union. Rather, Congress envisioned the relationship between
the courts and labor unions as similar to that between the courts
and the legislature. Any substantive examination of a union's
performance, therefore, must be highly deferential, recognizing the
wide latitude that negotiators need for the effective performance
of their bargaining responsibilities.” (citations omitted)). To
avoid over-reaching, courts must give great leeway to unions in
cases concerning such disputes. But, this is a dispute between the
union and the objecting employees that does not require us to
second-guess the union’s judgment as exclusive bargaining
representative. Rather we are called upon to protect the free
speech rights of objecting 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. See Boos v.
20
Barry, 108 S. Ct. 1157, 1162 (1988); Abood.7 In this character of
case, we will follow Hudson and require a union to adopt those
reasonably practicable procedures that least interfere with an
objecting employee’s exercise of his First Amendment rights.
We hold that the IAM’s procedure violates Hudson’s requirement
that the First Amendment infringement be minimized. Alternatively,
we hold that the annual objection requirement violates the IAM’s
duty of fair representation. For these reasons, we reverse the
district court’s grant of summary judgment and remand for further
proceedings.
REVERSED and REMANDED
7
As the Court stated in Abood:
“It is no doubt true that a central purpose of the First
Amendment ’”was to protect the free discussion of
governmental affairs.’” . . . [citations] But our cases
have never suggested that expression about philosophical
social, artistic, economic, literary, or ethical
matters——to take a nonexhaustive list of labels——is not
entitled to full First Amendment protection.” Id. at
1797 (footnote omitted).
21