Locke v. Karass , 129 S. Ct. 798 ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LOCKE ET AL. v. KARASS, STATE CONTROLLER, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 07–610. Argued October 6, 2008—Decided January 21, 2009
The collective-bargaining agreement between Maine and respondent
local union, the exclusive bargaining agent for certain state employ
ees, requires nonmember employees represented by the union to pay
the local a “service fee” equal to the portion of union dues related to
ordinary representational activities, e.g., collective bargaining or con
tract administration activities. That fee does not include noncharge
able union activities such as political, public relations, or lobbying ac
tivities. The fee includes a charge that represents the “affiliation fee”
the local pays to the national union. But, it covers only the part of
the affiliation fee that helps to pay for the national’s own chargeable
activities, which include some litigation activities that directly bene
fit other locals or the national itself, rather than respondent local.
The petitioners, nonmembers of the local, brought this suit claiming,
inter alia, that the First Amendment prohibits charging them for any
portion of the service fee that represents litigation that does not di
rectly benefit the local, i.e., “national litigation.” The District Court
found no material facts at issue and upheld this element of the fee.
The First Circuit affirmed.
Held: Under this Court’s precedent, the First Amendment permits a
local union to charge nonmembers for national litigation expenses as
long as (1) the subject matter of the (extra-local) litigation is of a kind
that would be chargeable if the litigation were local, e.g., litigation
appropriately related to collective bargaining rather than political ac
tivities, and (2) the charge is reciprocal in nature, i.e., the contribut
ing local reasonably expects other locals to contribute similarly to the
national’s resources used for costs of similar litigation on behalf of
the contributing local if and when it takes place. Pp. 4–13.
(a) Prior decisions frame the question at issue. The Court has long
2 LOCKE v. KARASS
Syllabus
held that the First Amendment permits local unions designated as
the exclusive bargaining representatives for certain employees to
charge nonmember employees a service fee as a condition of their
continued employment. With respect to litigation expenses, the
Court also held that a local could charge nonmembers for expenses of
litigation normally conducted by an exclusive representative, includ
ing litigation incidental to collective bargaining, but said (in language
that the petitioners here emphasize) that litigation expenses “not
having such connection with the bargaining unit are not to be
charged to objecting employees.” Ellis v. Railway Clerks, 466 U. S.
435, 453. Later, the Court held, with respect to the chargeability of a
local’s payment of an affiliation fee to a national, that the local “may
charge objecting employees for their pro rata share of the costs asso
ciated with otherwise chargeable activities of its state and national
affiliates, even if those activities were not performed for the direct
benefit of the objecting employees’ bargaining unit.” Lehnert v. Ferris
Faculty Assn., 500 U. S. 507, 524. The Court added that the local
unit need not “demonstrate a direct and tangible impact upon the
dissenting employee’s unit,” although there must be “some indication
that the payment [say, to the national] is for services that may ulti
mately inure to the benefit of the members of the local union by vir
tue of their membership in the parent organization.” Ibid. However,
the Lehnert Court split into three irreconcilable factions on the sub
ject here at issue, payment for national litigation. Pp. 4–9.
(b) Because Lehnert failed to find a majority as to the chargeability
of national litigation expenses, the lower courts have been uncertain
about the matter. Having examined the question further, however,
the Court now believes that, consistent with its precedent, costs of
such litigation are chargeable provided the litigation meets the rele
vant standards for charging other national expenditures that the
Lehnert majority enunciated. Under those standards, a local may
charge a nonmember an appropriate share of its contribution to a na
tional’s litigation expenses if (1) the subject matter of the national
litigation bears an appropriate relation to collective bargaining and
(2) the arrangement is reciprocal—that is, the local’s payment to the
national affiliate is for “services that may ultimately inure to the
benefit of the members of the local union by virtue of their member
ship in the parent organization.” 500 U. S., at 524. Logic suggests
that the same standard should apply to national litigation expenses
as to other national expenses, and the Court can find no significant
difference between litigation activities and other national activities,
the cost of which this Court has found chargeable. The petitioners’
arguments to the contrary, which rest primarily on their understand
ing of Ellis and Lehnert, are rejected. Pp. 9–11.
Cite as: 555 U. S. ____ (2009) 3
Syllabus
(c) Applying Lehnert’s standard to the national litigation expenses
at issue demonstrates that they are both appropriately related to col
lective bargaining activities and reciprocal, and are therefore charge
able. First, the record establishes that the kind of national litigation
activity for which the local charges nonmembers concerns only those
aspects of collective bargaining, contract administration, or other
matters that the courts have held chargeable. No one here denies
that under Lehnert this kind of activity bears an appropriate relation
to collective bargaining. See, e.g., 500 U. S., at 519. Second, al
though the location of the litigation activity is at the national (or ex
traunit) level, such activity is chargeable as long as the charges are
for services that may ultimately inure to local members’ benefit by
virtue of their membership in the national union. Ibid. Respondent
local says that the payment of its affiliation fee gives locals in general
access to the national’s financial resources—compiled via contribu
tions from various locals—which would not otherwise be available to
the local when needed to effectively negotiate, administer, or enforce
the local’s collective-bargaining agreements. Because no one claims
that the national would treat respondent local any differently from
other locals in this regard, the existence of reciprocity is not in dis
pute. Pp. 11–13.
498 F. 3d 49, affirmed.
BREYER, J., delivered the opinion for a unanimous Court. ALITO, J.,
filed a concurring opinion, in which ROBERTS, C. J., and SCALIA, J.,
joined.
Cite as: 555 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–610
_________________
DANIEL B. LOCKE, ET AL., PETITIONERS v. EDWARD
A. KARASS, STATE CONTROLLER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[January 21, 2009]
JUSTICE BREYER delivered the opinion of the Court.
The State of Maine requires government employees to
pay a service fee to the local union that acts as their exclu
sive bargaining agent even if those employees disagree
with, and do not belong to, the union. This Court has held
that, in principle, the government may require this kind of
payment without violating the First Amendment. See,
e.g., Railway Employes v. Hanson, 351 U. S. 225 (1956)
(upholding such an arrangement as constitutional); Abood
v. Detroit Bd. of Ed., 431 U. S. 209 (1977) (same); Lehnert
v. Ferris Faculty Assn., 500 U. S. 507 (1991) (same). At
the same time, the Court has considered the constitution
ality of charging for various elements of such a fee, up
holding the charging of some elements (e.g., those related
to administering a collective-bargaining contract) while
forbidding the charging of other elements (e.g., those
related to political expenditures). Compare, e.g., Ellis v.
Railway Clerks, 466 U. S. 435 (1984), with Machinists v.
Street, 367 U. S. 740 (1961).
In this case, a local union charges nonmembers a service
fee that (among other things) reflects an affiliation fee
2 LOCKE v. KARASS
Opinion of the Court
that the local union pays to its national union organiza
tion. We focus upon one portion of that fee, a portion that
the national union uses to pay for litigation expenses
incurred in large part on behalf of other local units. We
ask whether a local’s charge to nonmembers that reflects
that element is consistent with the First Amendment.
And we conclude that under our precedent the Constitu
tion permits including this element in the local’s charge to
nonmembers as long as (1) the subject matter of the (ex
tra-local) litigation is of a kind that would be chargeable if
the litigation were local, e.g., litigation appropriately
related to collective bargaining rather than political activi
ties, and (2) the litigation charge is reciprocal in nature,
i.e., the contributing local reasonably expects other locals
to contribute similarly to the national’s resources used for
costs of similar litigation on behalf of the contributing
local if and when it takes place.
I
Maine has designated the Maine State Employees
Association (the local union) as the exclusive bargaining
agent for certain executive branch employees. A collec
tive-bargaining agreement between Maine and the local
requires nonmember employees whom the union repre
sents to pay the local union a “service fee.” And that
service fee equals that portion of ordinary union dues that
is related to ordinary representational activities, e.g.,
collective bargaining or contract administration activities.
In calculating the fee, the union starts with ordinary
union dues and subtracts a sum representing the pro rata
cost of nonchargeable union activities such as political,
public relations, or lobbying activities.
The service fee includes a charge that represents the
affiliation fee the local pays to its national union, the
Service Employees International Union. The included
charge takes account of the affiliation fee, however, only
Cite as: 555 U. S. ____ (2009) 3
Opinion of the Court
insofar as the fee helps to pay for the national’s activities
that are of a chargeable kind, such as collective-bargaining
or contract administration activities. The local does not
charge nonmembers for the portion of the affiliation fee
that helps pay for the national’s activities of a kind that
would not normally be chargeable, such as political, public
relations, or lobbying activities.
The local includes in the chargeable portion of the
affiliation fee an amount that helps the national pay for
litigation activities, some of which do not directly benefit
Maine’s state employees’ local but rather directly benefit
other locals or the national organization itself. (For pur
poses of simplicity, we shall call all this extraunit litiga
tion “national litigation.”) As is true of all other parts of
the affiliation fee, the local’s charge to nonmembers re
flects these national litigation costs only insofar as the
national litigation concerns activities that are of a charge
able kind. The local does not charge nonmembers for the
portion of national litigation costs that concerns activities
of a kind that would not normally be chargeable, such as
political, public relations, or lobbying activities.
Numbers may help illustrate the scope of the issue. In
2005, the full service fee the local charged nonmembers
amounted to about 49% of a member’s ordinary union
dues. (The petitioners here, beneficiaries of grandfather
ing rules, paid a half fee, amounting to about 24.5% of a
member’s fee.) The full fee for employees like the petition
ers would have amounted to about $9.70 per month.
About $1.34 per month of that $9.70 reflected a pro rata
share of the portion of the national affiliation fee that the
local believed was chargeable. The portion of the $1.34
per month affiliation fee charge that represented national
litigation costs—the cost here at issue—amounted to
considerably less.
Although the amount at issue per nonmember may be
small, nonmembers believed the principle important. And
4 LOCKE v. KARASS
Opinion of the Court
in December 2005, nonmembers challenged in arbitration
several aspects of the local’s service fee, including the
element at issue here. In 2006, the arbitrator found all
aspects of the service fee lawful. Before the arbitrator
reached his decision, however, the petitioners, who are
nonmembers of the local union, brought this lawsuit in
Maine’s Federal District Court also challenging various
aspects of the service fee, including this element. In par
ticular, they claimed that the First Amendment prohibits
charging them for any portion of the service fee that
represents what we have called “national litigation,” i.e.,
litigation that does not directly benefit the local. The
District Court, finding no material facts at issue, upheld
this element of the fee. 425 F. Supp. 2d 137 (2006). The
Court of Appeals for the First Circuit affirmed the District
Court’s determination. 498 F. 3d 49 (2007). Because of
uncertainty among the Circuits as to whether, or when,
the Constitution permits charging nonmembers for the
costs of national litigation, we granted certiorari. Com
pare Otto v. Pennsylvania State Educ. Assn.-NEA, 330 F.
3d 125 (CA3 2003), with Pilots Against Illegal Dues v. Air
Line Pilots Assn., 938 F. 2d 1123 (CA10 1991).
II
Prior decisions of this Court frame the question before
us. In Hanson, Street, and Abood, the Court set forth a
general First Amendment principle: The First Amendment
permits the government to require both public sector and
private sector employees who do not wish to join a union
designated as the exclusive collective-bargaining represen
tative at their unit of employment to pay that union a
service fee as a condition of their continued employment.
Taken together, Hanson and Street make clear that the
local union cannot charge the nonmember for certain
activities, such as political or ideological activities (with
which the nonmembers may disagree). But under that
Cite as: 555 U. S. ____ (2009) 5
Opinion of the Court
precedent, the local can charge nonmembers for activities
more directly related to collective bargaining. In such
instances, the Court has determined that the First
Amendment burdens accompanying the payment require
ment are justified by the government’s interest in prevent
ing freeriding by nonmembers who benefit from the un
ion’s collective-bargaining activities and in maintaining
peaceful labor relations. Street, 367 U. S., at 768–772;
Hanson, 351 U. S., at 233–238.
In Abood, the Court explained the basis for a First
Amendment challenge to service fees as follows: “To be
required to help finance the union as a collective
bargaining agent might well be thought . . . to interfere in
some way with an employee’s freedom to associate for the
advancement of ideas, or to refrain from doing so, as he
sees fit.” 431 U. S., at 222. But the Abood Court rejected
such a challenge. It found that, “the judgment clearly
made in Hanson and Street is that such interference as
exists is constitutionally justified by the legislative as
sessment of the important contribution of the union shop
to the system of labor relations established by Congress.”
Ibid. The Court added that, “ ‘furtherance of the common
cause leaves some leeway for the leadership of the group.
As long as they act to promote the cause which justified
bringing the group together, the individual cannot with
draw his support merely because he disagrees with the
group’s strategy.’ ” Id., at 223 (quoting Street, supra, at
778 (Douglas, J., concurring)).
In Ellis and Lehnert, the Court refined the general
First Amendment principle. In particular, it refined the
boundaries of Abood’s constitutional “leeway” by describ
ing the nature of the cost elements that the local, constitu
tionally speaking, could include, or which the local could
not constitutionally include, in the service fee. In 1984,
the Court wrote in Ellis that service fees are constitution
ally permissible when they relate to the union’s duties of
6 LOCKE v. KARASS
Opinion of the Court
“negotiating and administering a collective agreement and
in adjusting grievances and disputes.” 466 U. S., at 446–
447 (citing Railway Clerks v. Allen, 373 U. S. 113, 121
(1963)). Accordingly, the Court explained, the local union
could charge the nonmember for union “expenditures
[that] are necessarily or reasonably incurred for the pur
pose of performing the duties of an exclusive representa
tive of the employees in dealing with the employer on
labor-management issues.” 446 U. S., at 448. In doing so,
the union could charge nonmembers for “the direct costs of
negotiating and administering a collective-bargaining
contract” and for “the expenses of activities or undertak
ings normally or reasonably employed to implement or
effectuate the duties of the union as exclusive representa
tive of the employees in the bargaining unit.” Ibid.
Applying this standard, the Ellis Court examined the
particular service fee charges challenged in that case. The
Court held that the local union could charge nonmembers
for the costs of a national convention, id., at 448–449; for
the costs of social activities, id., at 449–450; and for the
costs of those portions of publications not devoted to politi
cal causes, id., at 450–451. Convention expenses are
chargeable, the Court explained, because, if a local union
is to function effectively, “it must maintain its corporate or
associational existence.” Id., at 448.
The Court also held that the local union could charge
nonmembers for litigation expenses incidental to the local
union’s negotiation or administration of a collective
bargaining agreement, fair representation litigation,
jurisdictional disputes, or other litigation normally con
ducted by an exclusive representative. Id., at 453. But
the Court then said (in language that the petitioners here
emphasize) that “expenses of litigation not having such
connection with the bargaining unit are not to be charged
to objecting employees.” Ibid. (emphasis added).
In 1991, the Court in Lehnert again described when an
Cite as: 555 U. S. ____ (2009) 7
Opinion of the Court
expense is chargeable. The Court said that a chargeable
expenditure must bear an appropriate relation to collec
tive-bargaining activity. 500 U. S., at 519. (Its specific
description of that relation is not at issue here. Compare
ibid., with id., at 557–558 (SCALIA, J., concurring in judg
ment in part and dissenting in part)). The Court then
considered one aspect of the matter here before us, the
chargeability of a local union’s payment to a national
organization, say, an affiliation fee. The Court assumed
that, in any given year, such a payment would primarily
benefit other local units or the national organization itself,
but it would not necessarily provide a direct benefit to the
contributing local. The petitioners in the case (nonmem
bers of a teacher’s union) argued that the Constitution
forbids a local union to charge nonmembers for these
activities, i.e., for “activities that, though closely related to
collective bargaining generally, are not undertaken di
rectly on behalf of the bargaining unit to which the object
ing employees belong.” Id., at 519.
The Court divided five to four on the general affiliation
fee matter. The majority of the Court rejected the non
members’ claim. The Court noted that it had “never in
terpreted” the chargeability test “to require a direct rela
tionship between the expense at issue and some tangible
benefit to the dissenters’ bargaining unit.” Id., at 522.
Indeed, “to require so close a connection would be to ignore
the unified-membership structure under which many
unions, including those here, operate.” Id., at 523.
Rather, the affiliation relationship is premised on the
“notion that the parent will bring to bear its often consid
erable economic, political, and informational resources
when the local is in need of them.” Ibid. And that “part of
a local’s affiliation fee which contributes to the pool of
resources potentially available to the local is assessed for
the bargaining unit’s protection, even if it is not actually
expended on that unit in any particular membership
8 LOCKE v. KARASS
Opinion of the Court
year.” Ibid.The Court then held that “a local bargaining represen
tative may charge objecting employees for their pro rata
share of the costs associated with otherwise chargeable
activities of its state and national affiliates, even if those
activities were not performed for the direct benefit of the
objecting employees’ bargaining unit.” Id., at 524 (empha
sis added). Of particular relevance here, the Court added
that the local unit need not “demonstrate a direct and
tangible impact upon the dissenting employee’s unit.”
Nonetheless, it said, there must be “some indication that
the payment [say, to the national affiliate] is for services
that may ultimately inure to the benefit of the members of
the local union by virtue of their membership in the par
ent organization.” Ibid.Finally, the Lehnert Court turned to the subject now
before us, that of payment for national litigation. On this
point, the Court split into three irreconcilable factions. A
plurality of four wrote that, even though the union was
“clearly correct that precedent established through litiga
tion on behalf of one unit may ultimately be of some use to
another unit,” it nonetheless found “extraunit litigation to
be more akin to lobbying in both kind and effect.” Id., at
528. The plurality added that litigation is often “expres
sive.” It concluded that “[w]hen unrelated to an objecting
employee’s unit, such activities are not germane to the
union’s duties as exclusive bargaining representative.”
Ibid.The Member of the Court who provided the fifth vote for
the other portions of the Court’s opinion dissented from
the part of the opinion on national litigation. Justice
Marshall noted that the plurality’s discussion of national
litigation costs was dicta because no such costs were at
issue in the case. Id., at 544 (opinion concurring in part
and dissenting in part). Nevertheless, Justice Marshall
characterized any rule that found national litigation costs
Cite as: 555 U. S. ____ (2009) 9
Opinion of the Court
per se nonchargeable as “surely incorrect” and indicated
such costs should be assessed under the plurality’s own
test, i.e., whether the litigation bears an appropriate
relation to collective bargaining. Id., at 546–547.
At the same time, four Members of the Court agreed
with the nonmembers that including national costs in the
service fee violates the First Amendment except when
those costs pay for specific services “actually provided” to
the local. Id., at 561 (SCALIA, J., concurring in judgment
in part and dissenting in part). They thought that a local
union cannot charge nonmembers for national activities
unless there is a direct relationship between the expenses
and “some tangible benefit to the dissenters’ bargaining
unit.” Id., at 562 (internal quotation marks omitted). In
other words, the dissent expressly rejected the majority’s
chargeability test for national expenses. But the dissent
did not separately discuss national litigation activities,
perhaps because, as Justice Marshall pointed out, they
were not directly at issue in that case.
III
As a result of the Lehnert Court’s failure to find a ma
jority as to the chargeability of national litigation ex
penses, the lower courts have been uncertain about the
matter. Compare Otto, 330 F. 3d, at 138, with Pilots
Against Illegal Dues, 938 F. 2d, at 1130–1131. Having
examined the question further, we now believe that, con
sistent with the Court’s precedent, costs of that litigation
are chargeable provided the litigation meets the relevant
standards for charging other national expenditures that
the Lehnert majority enunciated. Under those standards,
a local union may charge a nonmember an appropriate
share of its contribution to a national’s litigation expenses
if (1) the subject matter of the national litigation bears an
appropriate relation to collective bargaining and (2) the
arrangement is reciprocal—that is, the local’s payment to
10 LOCKE v. KARASS
Opinion of the Court
the national affiliate is for “services that may ultimately
inure to the benefit of the members of the local union by
virtue of their membership in the parent organization.”
500 U. S., at 524.
We reach this conclusion in part because logic suggests
that the same standard should apply to national litigation
expenses as to other national expenses. We can find no
significant difference between litigation activities and
other national activities the cost of which this Court has
found chargeable. We can find no sound basis for holding
that national social activities, national convention activi
ties, and activities involved in producing the nonpolitical
portions of national union publications all are chargeable
but national litigation activities are not. See Ellis, 466
U. S., at 448–451. Of course, a local nonmember pre
sumably has the right to attend, and consequently can
directly benefit from, national social and convention ac
tivities; and a local nonmember can read, and benefit
from, a national publication. But so can a local nonmem
ber benefit from national litigation aimed at helping other
units if the national or those other units will similarly
contribute to the cost of litigation on the local union’s
behalf should the need arise.
The petitioners’ arguments to the contrary rest primar
ily upon their understanding of Ellis and Lehnert. Ellis,
we must concede, sets forth certain kinds of national
litigation—for the most part directly related to a local
union’s particular interests—as chargeable; but it then
goes on to say, as we have earlier pointed out, ante, at 6–7,
that “expenses of litigation not having such a connection
with the bargaining unit are not to be charged to objecting
employees.” 466 U. S., at 453. Nonetheless, as the Court
of Appeals noted, the Ellis Court focused upon a local
union’s payment of national litigation expenses without
any understanding as to reciprocity. Indeed, JUSTICE
KENNEDY pointed out in his Lehnert dissent, “Ellis . . .
Cite as: 555 U. S. ____ (2009) 11
Opinion of the Court
contains no discussion of whether a bargaining unit might
choose to fund litigation . . . through a cost sharing ar
rangement under the auspices of the affiliate.” 500 U. S.,
at 564 (opinion concurring in judgment in part and dis
senting in part). Ellis nowhere explains why reciprocal
litigation funding arrangements would fail to benefit a
local union. Hence, Ellis does not answer the question
presented here.
We must also concede that a plurality in Lehnert wrote
that national litigation expenses were not chargeable
“[w]hen unrelated to an objecting employee’s unit.” 500
U. S., at 528. But, again, reciprocal litigation funding was
not before the Court; hence the plurality could not (and
did not) decide whether an understanding as to reciprocity
produced the relationship necessary for chargeability.
Regardless, a plurality does not speak for the Court as a
whole.
Nor can one simply add together the four Lehnert dis
senters and the four Members of the plurality in an effort
to find a majority of Justices who hold the petitioners’
view. That is because the Lehnert majority, speaking for
the Court, adopted a more liberal standard of charge
ability than the standard embraced by the dissent. And
the question here is whether that standard permits charg
ing nonmembers for national litigation expenses. There
was no majority agreement in Lehnert about the answer to
this last mentioned question. The best we can do for the
petitioners is to find Lehnert ambiguous on the point at
issue.
IV
Applying Lehnert’s standard to the national litigation
expenses here at issue, we find them chargeable. First,
the kind of national litigation activity for which the local
charges nonmembers concerns only those aspects of collec
tive bargaining, contract administration, or other matters
12 LOCKE v. KARASS
Opinion of the Court
that the courts have held chargeable. Ellis, supra, at 446–
447. The lower courts found (and the petitioners here do
not dispute) that the local charges nonmembers only for
those national litigation activities that, in respect to sub
ject matter, “were comparable to those undertaken” by the
local and which the local “deemed chargeable” in its calcu
lation of the “service fee.” 498 F. 3d, at 52, 64–65. And no
one here denies that under Lehnert this kind of activity
bears an appropriate relation to collective bargaining.
See, e.g., Lehnert, 500 U. S., at 519; see also id., at 524(“[A] local bargaining representative may charge objecting
employees for their pro rata share of costs associated with
otherwise chargeable activities of its state and national
affiliates . . . ”).
Second, the location of the litigation activity is at the
national (or extraunit), not the local, level. But, as we
have just said (under Lehnert), activity at the national
level is chargeable as long as the charges in question are
“for services that may ultimately inure to the benefit of
the members of the local union by virtue of their member
ship in the parent organization.” Ibid.The Court of Appeals treated the litigation charge at
issue as reciprocal in nature, and concluded the District
Court must have done so as well. See 498 F. 3d, at 64–65.
The local union here says that the payment of its affilia
tion fee gives locals in general access to the national’s
financial resources—compiled via contributions from
various locals—“which would not otherwise be available to
the local union when needed to effectively negotiate, ad
minister or enforce the local’s collective bargaining agree
ments.” Brief for Respondents 18–19. The resources in
question include resources related to litigation. No one
claims that the national would treat the local union before
us any differently, in terms of making these resources
available, than the national would treat any other local.
The petitioners do not suggest the contrary. And we
Cite as: 555 U. S. ____ (2009) 13
Opinion of the Court
consequently conclude, as did the lower courts, that the
existence of reciprocity is assumed by the parties and not
here in dispute.
The record then leads us to find that the national litiga
tion expenses before us are both appropriately related to
collective bargaining and reciprocal. Consequently, con
sistent with our precedent, those expenses are chargeable.
The similar determination of the Court of Appeals is
affirmed.
It is so ordered.
Cite as: 555 U. S. ____ (2009) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–610
_________________
DANIEL B. LOCKE, ET AL., PETITIONERS v. EDWARD
A. KARASS, STATE CONTROLLER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[January 21, 2009]
JUSTICE ALITO, with whom THE CHIEF JUSTICE and
JUSTICE SCALIA join, concurring.
I join the opinion of the Court but write separately to
note that our decision, as I understand it, does not reach
the question of what “reciprocity” means. Petitioners have
taken an all-or-nothing position, contending that non
members of a local may never be assessed for any portion
of the national’s extraunit litigation expenses. See ante, at
4 (noting that petitioners “claimed that the First Amend
ment prohibits charging them for any portion of the ser
vice fee that represents what we have called ‘national
litigation,’ i.e., litigation that does not directly benefit the
local” (emphasis added)). The opinion correctly concludes,
“as did the lower courts, that the existence of reciprocity is
assumed by the parties and not here in dispute.” Ante, at
13.
Thus, this case does not require us to address what is
meant by a charge being “reciprocal in nature,” or what
showing is required to establish that services “ ‘may ulti
mately inure to the benefit of the members of the local
union by virtue of their membership in the parent organi
zation.’ ” Ante, at 12 (citing Lehnert v. Ferris Faculty
Assn., 500 U. S. 507, 524 (1991)). I understand the Court’s
opinion to conclude that the litigation expenses at issue
here are chargeable only because the parties assumed that
2 LOCKE v. KARASS
ALITO, J., concurring
the benefit of any such expenses would be reciprocal.
In its brief as amicus curiae, the United States argues
that a national union must bear the burden of proving
that any expenditures charged to nonmembers of a local
are made pursuant to a bona fide pooling arrangement.
See Brief for United States 28–29. Once nonmembers
object to a charge, the Government submits, the union
must prove that the challenged expenditure was made
pursuant to an arrangement that is akin to an insurance
policy. See id., at 7. This is necessary, the Government
contends, to ensure that a charge is in fact “reciprocal in
nature.”
Because important First Amendment rights are at
stake, the Government’s argument regarding the burden
of establishing true reciprocity has considerable force.
Nonetheless, since petitioners in this case did not raise the
question whether the Maine State Employees Associa
tion’s pooling arrangement was bona fide, we need not
reach that question today.