Follow the Money

What is Propaganda?

Propaganda avoids facts, Rush Limbaugh claims moral superiority while forgetting his own drug use, willingness to collect unemployment when he was in need, and I think it is now four failed marriages. Propaganda has at its core the intent to encourage hate and prejudice against a targeted group while providing an excuse and a distraction from rational thought.

The user of propaganda tries to get others to accept claims without thought, or to act without weighing hidden motives. The use of inference and anger as a propaganda tool can be heard on any talk radio show, the yelling and the hate for whatever group the host has picked as a target. Talk show hosts and right wing politicians hope to lead the public to accept claims with no logical grounds and with no balancing points of view. "Fair and balanced". The “talking heads” avoid logical arguments from the audience, so creating an enemy is the most important tool and is the first step.

How to build the lie? First make broad and positive statements, “Republicans believe in smaller government” regardless of the truth. Statements are presented using tag lines and familiar language. By refusing to admit, or even suggest, that there is another side to the question they create the devil, saying “All Unions protect lazy workers”, "Democrats hate free enterprise", "Union thugs". These are examples of propaganda. Another example is the repeated claim that Union members are the cause of government waste while ignoring the fact that the public wants the snow plowed, the potholes fixed, and the ambulance to come when needed.

Slogans are a highly powerful form of attack; “drinking Union Cool Aid” suggests that Union members are killing themselves following insane leadership is a common theme.

First they say what everyone knows, times are tough. Then they show sympathy for the audience claiming that they know how hard it is for the public. Then they talk about cutting State Government and then cutting State Employees and their benefits. They never say put a fire a fire fighter, fire a State police officer or stop maintaining the roads. They always say “State Employees” as if it is a group from another world.

A second method of propaganda is appealing to the desires of the audience. Desire is an important factor in belief. The public is frustrated with how government and corporate interests have worked to destroy the middle class. The right needs to find someone to blame for their failed policies and needs a target.

Like advertisers they study public opinion to find out what things people are “for” or “against” in order to decide on labels to use to bring about desired reactions. Using words such as “justice,” “promoting efficient Government” “lower taxes” and “equal opportunity,” will work as positive hooks, and are used in every message. The use of negative words—for example, “Union Bosses” or “Lazy employees” and "government waste" is used to influence the public to justify hate for the intended target.

The desire for lower taxes, a better job, appeals to the target audience. The desire to be respected, capable of taking care of a family, and to be socially acceptable, sells ideas and at the same time the claim that all the problems can be fixed by fixing those who are stealing from the public, state employees is worked in. Anyone who has listened to the radio, or reads knows of dozens of ads now attacking and blaming state employees.

Tax cuts sound great, follow the money, Bush mainly cut taxes for the rich and put billions of your tax dollars into the vaults of the already rich oil companies. Cutting tax rates for billionaires to less than that paid by a janitor can be ignored if you just keep saying tax cuts are good!

The real trick is to “make the idea stick.” That is why key words and slogans, cartoons, are used. “I could have had a V8!” and a hand slap to the forehead, sticks in your mind.

Slogans pack meaning into short sentences. The purpose is to get them noticed. They will burrow into the minds of people. CEOs and political leaders know that slogans are a great viral marketing tool. Advertisers know that reasoned, logical appeals are not always effective. Political debates, have been shortened and emotionalized, “Read my lips, no new taxes!" because much of the audience will not listen to reasoned, point, counter point arguments. The Union message relying on concern for people and on logic and rationality is out of place in this bloody arena.

Political propaganda is full of examples of the use of striking slogans. For example, “Mr. Gorbachev, tear down this wall” used by Ronald Reagan. Reagan’s technique painted the U.S. as the lone defender of democracy, while the Soviet Union was ‘the evil empire”.

Slogans have inspired the imaginations of people in the past and continue to the present. We remember “No Taxation without Representation” and it is has become part of American culture and language.

Propaganda uses slogans, and it uses symbols. We have seen the Kool Aid pitcher with “Union Kool Aid” across the front. A symbol avoids logic and discussion and leaves no opportunity for debate. This symbol is used to disguise the true intent, the intent to turn Maine into a “right to work” state.

A symbol is the glue that holds together a group together.

A propagandist knows how to use symbols. Symbols are used to build both positive and negative attitudes.

Cartoons have been used to represent the taxpayer in tattered clothing, the “union boss” and others. The “union boss” is usually pictured as a fat and wearing a diamond pinky ring.

For the big lie to work blame must be placed on individuals or groups that are not responsible, relieving feelings of guilt from responsible parties and distracting attention from the need to fix the problem for which blame is being assigned. By blaming Unions, for failures of industry, the need to worry about products produced by slave or child labor for Wal-Mart can be forgotten.

The history of corporations claiming bankruptcy and canceling benefits for employees and retirees before paying millions in bonuses to the boards can be conveniently ignored.

The fact that many people work for employers that pay little, and respect their employees less can be forgotten by blaming Unions.

The use of “State Employee” as a term of hate is a device to encourage the persecution of scapegoats, while denying the humanity of the group. It is hard to hate when the Union worker taking care of your grandmother is known by her first name, hard to hate when you need the help of a Union police officer or nurse. The creation of a faceless group is done to avoid engaging in reasoned debate and foster hate.

Catchwords and slogans abound in right to work propaganda, contrived for the sake of impressing voters in certain groups. “No Fair Share” uses such important and high-sounding words as “personal merit,” and “right to choose”. “Right to Work,” is a false slogan that does NOT guarantee anyone the “right” to employment and does not protect any worker from being laid off or fired, but it make a great sound bite.

Propaganda can be effective. The support of G.W. Bush and his totally anti-labor appointees by many of our own members is something that I as a Union supporter find impossible to understand. To me it is incredible that a labor hating, former party boy, C student at best, and total failure in all prior business dealings, after having destroyed the Texas budget, should be have ever been turned into an all-powerful and “infallible” leader, “The Decider,” who claims the right to reinterpret our constitution.

How did even some members of labor Unions come to accept this legend surrounding a failed businessman? Perhaps it was because millions of Americans were hoping for “an end of confusion, and no longer felt that their actions in the conduct of their own affairs was effective. The two presidential election won by G. Bush both were under a cloud of suspicion and voters felt they could not make a difference. To many the idea of a leader, a symbol of moral authority, a man to turn things around, allowed the public to forget their role in affairs and to turn the nation over to a ruler who claimed a mandate and all the public had to do was to give him complete trust, blind faith, and the keys to the treasury.

When a group is trying to influence your opinions and actions, ask yourself if their purpose is selfish or unselfish? Will the results of right to work (for less) laws benefit the employees or will it serve to generate political power for the right?

What is likely to be the effect of destroying the current Union? Will the public and the legislature trim government and reward the remaining employees with benefit and wage increases? Is it more likely that projects will be handed out to the private sector to benefit only the owners at the tax payer’s expense?

As an example of facts not revealed, workers in Right to Work states earn on average $6,590 less than workers in free-bargaining states. That’s a 17% pay cut! Women earn 12% less and on average, Right to Work states have a 16% higher poverty rate with job fatality rates 54% higher. The average employee in a free bargaining state is 24.1% more likely to have health insurance.

If personal merit alone guarantees success, why would the best athletes in the world in U.S. baseball, hockey and football join Unions?

It all boils down to some very simple questions: What is the source of the propaganda? Are there any actual facts to support the claims? What really started the movement? Follow the money and ask who will make a buck? Propaganda presents one point of view as if it were the best or only way to look at a situation. Perhaps it is a weakness of Unions that they are willing to listen to many points of view.

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Marijuana, Guns, Social Security, Unions, Questions for Chellie Pingree

First: The distribution notices were gummed up by BLOGGER yesterday, but they seem to have cleared up the problems. You may have gotten a 403 forbidden and contrary to popular belief the conservatives have not found a way to block free speech........yet.
The same topics keep coming up again and again, and while IRAQ is on everyone's lips "all politics are local" and voters want to know if their representative will represent them.

1. Social Security Offset State employees that have contributed to the Social Security system are punished by the Social Security offset. As a member of congress, will you work to repeal this unjust law? What will you do?

2. Describe what you would do to improve the Department Of Labor and how you would make it friendlier to labor. Will you support a card check law on the Federal level? Would you support and Enforce prevailing wage across the country?

3. Unions believe in the right of workers to organize and to bargain collectively. Will you work with Unions to extend and return collective bargaining rights to (ALL) Federal workers that have been denied bargaining rights?

4. What are other major issues upon which your campaign is based?

5. What is your position on the war in Iraq and how soon it can be ended?

EDITOR: So far number 6 has been a third rail for Democrats in Congress or for Candidates. Democrats are portrayed as “gun grabbing liberals” that want national registration leading to confiscation. The “assault weapons” ban is seen as the first step in following in the footsteps of Australia and England.

6. On the second amendment, do you believe your views are consistent with the majority of Mainers? Do you believe the second amendment is an individual right or a collective right? Do you see the need for more gun laws or do you believe we should enforce the laws we have?

Do you support the assault weapons ban? Registering all weapons?

7. Would you vote to allow undocumented workers to collect Social Security?

8. What is your position on Bush tax cuts?

9. What role does the Federal Government have in helping to alleviate the health care crisis in this country?

10. What are the most important things Mainers need to know about you that will help us to decide how to vote?

11. What can you do to help Maine if you are elected? Our current (R) representatives have been ineffective in getting LIHEAP money, increasing the road weight limits, or anything else a congressional representative is supposed to do to help their state.

12. Do you have a position on the legalization of marijuana research and the legalization for medical purposes?

13. This next question comes from Helen Hanson, president of the new MSEA-SEIU Union Local 771

What does she think about cutting Medicare benefits that cover the cost of home health care for our elders? This is a program that pays for the health services an elder receives in their home. Like having a nurse go into the home to do a routine check up or having a physical therapist go into the home to do some physical therapy to help keep the person mobile. Is it better to put these people in a nursing home where those costs are high, the care is not that great? Not to mention that the elders would rather stay in their own homes and be comfortable. The work I do is not covered under Medicare. Home Care for Maine does not receive any Medicare money. HCM does not employ nurses that go into the home for these types of services. But a lot of the consumers that Home Care for Maine helps do receive these types of services from other agencies like Health Reach.
Is Ms. Pingree aware of PCAs and PSSs and the type of work we do? I can give her a brief outline. Please let me now if you'd like a brief outline of what a PCA/PSS does and I'll be glad to send it.

Editor: I am posting the job description that was previously sent in.

A Personal Support Specialist usually works with a consumer, right in the consumer's home. The work entails personal care like assisting with bathing, dressing, toileting, etc.

It might entail feeding a consumer. It may be helping them take care of a colostomy or help them take care of a catheter.

It also involves doing things like light housekeeping, meal preparation, laundry and taking the consumer to doctors' appointments, shopping, and on errands.

The best part of it is the interaction with a consumer. For the most part, they enjoy your visits and greatly appreciate the help they are receiving.

This type of work helps consumers remain in their homes, where they are most comfortable.

Most of the consumers at Home Care for Maine are elders, but there are a few who are younger and disabled from disease.

Personally, I enjoy working with elders. They have so much to offer with their life-long experiences. I love hearing their stories of times gone by.

Helen Hanson
President Local 771
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Chellie Pingree wants your questions.

UnionMaine has received a number of questions about the Iraq war, guns, Union Issues, and health care. All the questions have been grouped and the common themes have been put together in a series of questions.

Your questions will be posted here tomorrow and the candidates replies will go up as soon as they arrive.

Republican Candidates have been offered chances to post or to respond to questions. No answers. No replies. Nothing. I may be impatient but we have a bounty of good Democratic candidates for office that are willing to talk to the public in an arena that does not cost $200.00 a plate. Democrats recognize the power of communication and have been willing to reach out to us.

In this case, Thank you Chellie Pingree for being open and accessible to the voters.


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I don't want a raise. I don't want you to get one either.

E.T.I. 2009

I want to set the record straight. In the next contract I don’t want a raise. The State has had some rough times, but so have we. We have shared the bad years. The contract was changed to give us the “Cliff”. The early retirement penalty was more than doubled. We go year after year with small increases or no increase at all. Every year our buying power in real dollars has gone down because our raises have not kept up with inflation. I don’t want a raise. I want a COST OF LIVING ADJUSTMENT that will bring us back to what we would be earning if we had only kept even with inflation. Check the U.S. Gov figures here. Look at the annual figures from 1997. http://data.bls.gov/PDQ/servlet/SurveyOutputServlet?data_tool=latest_numbers&series_id=CUUR0000SAM&output_view=pct_12mths

I don't want to get too financially geeky. Another little known fact is that the the Gov. changed the inflation figures a couple of years ago to remove the cost of gas and heating costs from the numbers. That way the inflation figures look smaller and wages that depend on a COLA could be cheated. I still have to pay for gas, and oil, you too? One of the things your dues buy is the smartest person in Maine for extracting information and presenting information in a completely honest way. Steve Butterfield has worked for the Union for about 2.5 million years and is still doing the best job possible. When the Union deals with the State both sides use real numbers. We have never lost an argument based on Steve Butterfield's figures. The State has refused to deal realistically, but we have NEVER had the State able to disprove Steve's numbers.

Compared to Inflation State employees have lost money in every contract for more than a decade and that loss is backed up by facts. In every contract for years the State and the Union have used the Consumer Price Index. Year after year we have been taking losses, not making small gains. It would be logical to ask what the Union has done for us. My answer is easy. I ask you to imagine your pay and your benefits at the mercy of a legislature that does not have to face an organized work force. I can just see it now. At every motor vehicles window when you get your plates you would hear "Ya want fries with that?"

Current Employees have lost over twelve percent in real purchasing power since 1990. While our contracts and benefits are used as political footballs by Union hating politicos the facts do not support their arguments. Our wages do not go up year after year. Our "raises" have been less than our sister states in New England, less than any big corporation in Maine, less than inflation. In Maine the general increase in wages has kept pace with or even out paced the consumer price index. State Employee wages have not kept up.

I don’t want a raise; I want a COST OF LIVING ADJUSTMENT. Make up for the losses of the last ten years. I don’t want to fight for a fair deal year after year. Implement contracts based on the same figures the retirement board uses. Get that ugly fight out of the way and we can all move forward. I want my pay to be Equal To Inflation in 2009.

E.T.I. 2009

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Ethan Strimling Reaching out to Maine

This is my first post on this blog. I want to take this opportunity to introduce myself to you, to share the reasons why I am running in June's Democratic Primary to represent Maine's 1st Congressional District, and most importantly, to begin a dialog with you about how we can together change the direction of this country.

I want to do on the internet what I have already been doing in person all around the First District- talking and listening to people. The internet not only affords an opportunity for more two-way communication between politicians and their constituents, but demands it. As a Senator in the Maine legislature, I have always seen myself as the facilitator of a collaborative effort between me and my constituents. On the internet, I can reach out and collaborate with more people than ever before. I hope you'll join me.

So now let me tell you about why I am running for Congress, and then I hope to hear from you about what you think we need to do, and about how we can do it.

In the months before I announced my candidacy, I traveled to towns all over Maine attending over 70 house parties in 70 different towns, and talked with hundreds of people. I did more than just say “hello” and shake their hands during a photo op. I sat in their living rooms and their kitchens, and one-on-one I heard their stories. The experience changed me.

Before doing that, I already knew what we all know: that most people aren't being listened to; that the middle class has been neglected and forgotten by Washington; that average wage earners are being hammered while the richest Americans and corporations are given extraordinary tax breaks; that the nation is pouring billions into the Iraq War, raising the income tax burden on the middle class and siphoning precious dollars from better wages, better health care, cheaper alternative energy, and college loan programs.

I knew those things, but talking with hundreds of people, and hearing from people from all walks of life, gave me a deeper understanding. Over and over I heard from Maine people who are struggling just to get by.

In Shapleigh, I talked with a retiree who had to go back to work because everything from taxes to health care are far more expensive than he had carefully planned for. In Saco, I met a man whose kidney cancer is now terminal; it was detected too late because he did not have health insurance in his hourly job and hadn't been able to afford physicals. I heard from a Portland couple who are struggling to pay a second mortgage on their house because their two boys are both in college.

I am running for Congress because I know it is wrong that the people I met and so many others just like them here in Maine are struggling just to get by. But I also know that it doesn't have to be this way. These struggles are the direct consequences of bad choices made by the leaders of our elected government who aren't listening to the same people I'm listening to.

I have always made fighting for the pocket books of Maine families my top priority. For the past three years, I have been the Senate Chair of the Labor Committee. During that time I have led efforts to raise the minimum wage, expand unemployment benefits for laid off Mainers, and provide for workers who are injured on the job. I have fought to provide health care for Fire Fighters, enhance retirement for mental health and correctional workers, and stood up to General Dynamics when they wanted to outsource union jobs.

So with your help, and with you behind me, I will go to Congress and I will fight every day to make taxes fairer, reduce our dependence on foreign oil, bring our troops home, and increase wages and benefits for working families.

I hope I can earn your support and that you will take some time to ask me questions, to learn more about me, and also to tell me your stories and ideas so that I can learn more about you. If you visit my website, you can learn more about my experience in the Maine Legislature, where I have served since 2002, and about my ten-plus years as executive director at Portland West, a nonprofit that helps at-risk and lower income children and families. You can also learn about my positions on other issues. I look forward to your feedback and comments on those as well.

Finally, I am proud and honored to count among my strongest supporters hundreds of workers and organizers from around Maine, including these Union members:

CJ Betit, Southern Maine Labor Council

John Bogart, American Postal Worker's Union Doug Born, International Alliance for Theatrical Stage Employees, Local 114 Sal Crisci, Maine State Employees Association - Service Employees International Union George Lawson, Brotherhood of Maintenance of Way Employees Jim MacAdam, International Brotherhood of Boilermakers Thomas MacLean, Amalgamated Transit Union, Local 714 Zack Matthews, Business Agent AFSCME Council 93 Winston McGill, International Association of Fire Fighters, Local 740 David Paul, International Brotherhood of Electrical Workers, Local 2327 Doris and Wayne Poland, American Postal Workers Union, Local 458 Stephen Quinlan, American Postal Workers Union, Local 458 Leo Todd, Maine Education Association

(Please note: Unions listed for identification purposes only)

Send me your name, occupation, town, and union affiliation, and I will add you to a list of Labor supporters that will be on our web site. Send it to labor@ethan08.com.

Editorial Comment:

The following questions are representative of the questions that have been emailed to this site. Other questions can be found in the comments on the post. Other candidates may choose to post and other candidates have been invited. Mr. Strimling received the first invitation and was ready to take questions and state what he believes in.
No candidate can provide specifics completely until they have gained the office and the information that a member of Congress has access to. But this candidate is willing to tell us what his goals are. What he believes is important to us. How he achieves them will be up to how much of a majority the electorate gives to candidates who support the same ideals.

1. Social Security Offset
State employees that have contributed to the Social Security system are punished by the Social Security offset. As a member of congress, will you work to repeal this unjust law? What will you do?

2. Describe what you would do to improve the Department of Labor and how you would make it friendlier to labor.

Will you support a card check law on the Federal level?

Support and Enforce prevailing wage across the country?

3. Unions believe in the right of workers to organize and to bargain collectively.

Will you work with Unions to extend and return collective bargaining rights to Federal workers that have been denied bargaining rights?

4. What are other major issues upon which your campaign is based?

5. What is your position on the war in Iraq and how soon it can be ended?

6. On the second amendment, do you believe your views are consistent with the majority of Mainers?

Do you believe the second amendment is an individual right or a collective right?

Do you see the need for more gun laws or do you believe we should enforce the laws we have?

7. Would you vote to allow undocumented workers to collect Social Security?

8. What is your position on Bush tax cuts?

9. What role does the Federal Government have in helping to alleviate the health care crisis in this country?

10. What do Mainers need to know about you that will help us to decide how to vote?

Editorial addition: A friend of mine sent the following question but as I have not yet gotten permission to use a name I have removed personally identifying information.

I have some questions for Mr. Strimling.
What does he think about the health care crisis in this country? It is not only the fact that health insurance is very expensive and for many folks unattainable, but it is also the runaway costs of getting sick! Simple tests like mammograms are now almost $200 when not that long ago the cost was about $75.

What does he think about cutting Medicare benefits that cover the cost of home health care for our elders? This is a program that pays for the health services an elder receives in their home. Like having a nurse go into the home to do a rountine check up or having a physical therapist go into the home to do some physical therapy to help keep the person mobile.
Is it better to put these people in a nursing home where those costs are high, the care is not that great? Not to mention that the elders would rather stay in their own homes and be comfortable. The work I do is not covered under Medicare. Home Care for Maine does not receive any Medicare money. HCM does not employ nurses that go into the home for these types of services. But a lot of the consumers that Home Care for Maine helps do receive these types of services from other agencies like Health Reach.

Is Mr. Strimling aware of PCAs and PSSs and the type of work we do?
I can give him a brief outline.

Please let me now if you'd like a brief outline of what a PCA/PSS does and I'll be glad to send it.



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Court Rules! Fair Share is Fair!

E.T.I. 2009


I will shorten this post later, but for now I am including the whole ruling. This shows that the whining about fair share has been about as the court says fifteen to thirty cents a month! The rest of the fair share fee is not in any doubt and even the pennies a month that are being fought over are legal.


The court further says that the arguments by the union haters was nothing more than a replay of the last arguments they made. This just goes to show that they have nothing and the sole intent is to bust a union.

Well,
I suppose it is off to the Supreme Court now. I hope the SEIU does not use a female lawyer as the current chief justice might rule that a woman should be pregnant and barefoot, not carrying a briefcase. Although Justice Roberts has many fine qualities such as hating the workers of the country, despising women, and supporting corporations over people, maybe this time he will listen to the law.

United States Court of Appeals

For the First Circuit

---

No. 06-1747

DANIEL B. LOCKE, ET AL.,

Plaintiffs, Appellants,

v.

EDWARD A. KARASS, STATE CONTROLLER; MAINE STATE EMPLOYEES ASSOCIATION, SEIU LOCAL 1989, ET AL.,

Defendants, Appellees.

---

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

---

Before

Lynch, Circuit Judge,

Campbell, Senior Circuit Judge, and

Lipez, Circuit Judge.

---

W. James Young, with whom Stephen C. Whiting and The Whiting Law Firm were on brief, for appellants.

Robert W. Alexander, with whom Jeremiah Collins and Bredhoff & Kaiser, PLLC were on brief, for appellees.

August 8, 2007

LIPEZ, Circuit Judge. This case raises a significant question under the First Amendment: may a union, functioning as the exclusive bargaining agent for certain state employees, charge nonmembers for litigation expenses incurred by its national affiliate, if that litigation is substantively related to the bargaining process and is funded through a pooling arrangement? Two other circuits have responded in the affirmative; one has answered in the negative. Our reading of the Supreme Court's most recent decision on this subject leads us to reply in the affirmative and hold that "extra-unit litigation"

The term "extra-unit litigation" refers to litigation onbehalf of, or by, a union entity other than the local whichrepresents the nonmember employees. It may encompass litigationundertaken by other local units or by a state or nationalaffiliate.

may be charged to nonmembers where it satisfies the "germaneness test" that generally applies to other pooled resources.

Although the Lehnert Court did not define "pooled resources"nor the related terms "pooling arrangement" or "affiliationrelationship," we use all of those terms to refer to an agreementbetween a local union and a state or national union, by which thelocal contributes money to the state or national union, with theunderstanding that the latter will provide services, personnel, andresources to the local unit when that local needs them.

See Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991). We therefore affirm the district court's entry of summary judgment for the union and against the nonmember employees.

I.

A. Factual Background

Both parties moved for summary judgment below; none of the material facts are in dispute.

The Maine State Employees Association ("MSEA") is a union representing state workers, and has been designated by the state as the exclusive bargaining agent for certain employees of its executive branch. Under MSEA's collective bargaining agreement, it must provide certain administrative services for all of these employees, regardless of whether they elect to join the union. As a result, MSEA is entitled to receive a "service fee" (also known as an "agency fee") from those nonmember state employees whom it represents.

This is called an "agency shop" arrangement. "An 'agencyshop' agreement generally provides that while employees are notrequired to join the union, they are required to pay the union anamount equal to union dues." Pilots Against Illegal Dues v. AirLine Pilots Ass'n, 938 F.2d 1123, 1126 n.1 (10th Cir. 1991). Although it is undisputed that the appellant-employees in this caseare not (and cannot be) required to pay the full amount of unionmembership dues, the arrangement is nonetheless referred to as an"agency shop." A related arrangement is referred to as the "unionshop": a union shop describes an agreement requiring that allemployees become members of the union. Id.

Close The state and MSEA negotiated a new collective bargaining agreement in 2005, which included a provision requiring all nonmember employees to begin paying this service fee as of July 1, 2005. The service fee is intended to be equal to the amount of union dues minus those expenses not related to the provision of collective bargaining and contract administration services.

The term "contract administration services" refers to allservices undertaken by the union to carry out its obligations underthe collective bargaining agreement. These services includesettling disputes, processing grievances, administering theagreement, negotiating the agreement, and any other activities thatare required by or closely related to the union's role asrepresentative under the bargaining agreement. Throughout thisopinion, when we refer to litigation related to collectivebargaining, we include contract administration within the conceptof collective bargaining.

Close In other words, MSEA is permitted to charge nonmember employees their share of all expenditures related to its services as the exclusive bargaining agent;

We use the term "chargeable" to refer to those unionexpenditures which may be included within the nonmembers' pro ratashare of the costs of collective bargaining and contractadministration. The costs of activities to which nonmembers cannotbe compelled to contribute, such as political or ideologicalexpressions or actions, are termed "nonchargeable." Both termsrefer to whether a particular cost may be included in the union'scalculation of the percentage of the membership dues thatcorrelates to collective bargaining activity, and, therefore, thatcan be charged to nonmembers.

Close those MSEA expenditures that are not related to bargaining and contract administration, such as political campaign donations or benefits provided only to members, cannot be "charged" to the nonmembers.

MSEA's collective bargaining agreement with the stateprovides that those employees who were hired prior to July 2, 2003,and who elected not to join MSEA, would be "grandfathered" into thecurrent service fee arrangement. Therefore, this group ofnonmembers was required to pay only half of the service fee throughJune 2006. After that date, these "grandfathered" nonmembers hadto pay the same service fee as all other nonmembers. Although thisprovision affected the actual size of the fee paid by theplaintiffs (who are all covered by the grandfathering clause), wedo not factor this provision into our decision because the fullservice fee now applies to all employees.

Close

MSEA initially sent notices to all nonmember employees in April and June 2005, providing a description of the service fee and how it was calculated. In July 2005, MSEA sent a superseding notice, accompanied by additional (and updated) financial information. The July notice calculated the service fee based on MSEA's 2004 fiscal year, the most recent year for which such data was available. In the July notice, as compared to the earlier April and June notices, MSEA opted to classify all of its organizing expenditures as nonchargeable; activities such as public relations and lobbying were also classified as nonchargeable.

MSEA's expenditures include the affiliation fee, see supra note 2, that it pays to the Service Employees International Union ("SEIU") to maintain its affiliation relationship with that organization. MSEA's July notice also included financial information for SEIU and classified as chargeable that proportion of its affiliation fee that represented SEIU's expenditures on chargeable activities. In other words, all of SEIU's activities that were comparable to those undertaken by MSEA, and which MSEA deemed chargeable in the calculation of the service fee, were included in the calculation of the proportion of MSEA's affiliation fee that could be charged to nonmembers.

MSEA included in its calculation of chargeable expenditures those costs of litigation (by both itself and SEIU) that was germane to collective bargaining. This meant that nonmembers contributed, through their service fees, to some litigation that was not undertaken specifically for their own bargaining unit, but rather was conducted by or on behalf of other units or the national affiliate, sometimes in other states. Included within this general category of expenditures were the salaries of SEIU's lawyers, and other costs of providing legal services to bargaining units throughout the country. Costs of litigation that was not related to collective bargaining, however, were not included in the service fees assessed to MSEA's nonmembers.

MSEA's July notice stated that 49.13% of the expenditures in its 2004 budget were chargeable to nonmembers; therefore, the service fee charged to nonmembers was 49.13% of the dues that members were required to pay. In addition to announcing the amount of the service fee, the July notice contained extensive additional information, such as: an affidavit from MSEA's Director of Finance explaining the calculation of the fee, a statement of all MSEA expenses classified into categories of chargeable and nonchargeable, an auditor's report on the statement of chargeable and non-chargeable expenses, and an independent auditor's report on SEIU's most recent financial statement (2003) on chargeable and nonchargeable expenses. The July notice also provided nonmembers with information on how they could challenge the service fee if they disagreed with any of the expenditure allocations described within it. The notice informed nonmembers that if any nonmembers challenged the fee amount or calculations, all fees paid by nonmembers would be placed in an interest-bearing escrow account until arbitration was complete.

Some nonmembers did challenge the service fee and an arbitration was scheduled for all objections. The arbitration took place in December 2005, and the arbitrator issued a decision in May 2006, upholding MSEA's service fee calculation. In accord with the notice, all fees paid by nonmembers were held in escrow until after the arbitrator's decision was announced.

B. Procedural Background

Before the arbitration process was complete, the twenty appellant-plaintiffs in this case filed suit in the District of Maine under 42 U.S.C. § 1983, seeking class action status, injunctive and declaratory relief, damages, and restitution. The employees then moved for a preliminary injunction, as well as class certification. After a hearing on the preliminary injunction motion, the district court denied it. Following the close of discovery, both parties moved for summary judgment. The district court granted summary judgment for the defendants, holding that "the inclusion of the cost of extra-[unit] litigation does not violate Plaintiffs' constitutional rights." The court also held that, because "the MSEA has placed all objecting nonmember service fees in an escrow account pending the ruling from the impartial arbitrator," there is "no constitutional violation." As the court explained: "the use of an impartial arbitrator and the escrowing of objectors' fees pending resolution of the complaint is sufficient to safeguard the nonmembers' constitutional rights" under Supreme Court precedent.

Before the district court, the employees raised additionalarguments, not at issue in this appeal. On these points, thedistrict court held that MSEA's notice to nonmembers wasconstitutionally adequate, that nonmembers were given adequate timeto object to the service fee, and that the indemnification clausein MSEA's collective bargaining agreement was lawful.

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On appeal, the nonmember employees raise only two issues.

Appellants' brief lists a putative third issue: whether thedistrict court erred in holding that the class certification issuewas moot. Because we agree with the district court's entry ofsummary judgment, we need not reach this issue.

Close First, they claim that SEIU's expenditures on litigation related to or on behalf of other bargaining units (also known as "extra-unit litigation" expenses) are not chargeable to nonmembers under the First Amendment because "the State of Maine has no 'compelling state interest' in SEIU's far-flung litigation activities nationwide." Second, the appellants claim that the "district court erred when it held that the constitution imposes no obligation to calculate an adequate advance reduction of the fee."

II.

The first issue in this case — the chargeability of extra-unit litigation that is related to collective bargaining and that is subject to a pooling arrangement — requires us to examine a series of Supreme Court decisions and to resolve an area of uncertainty. Although none of the Supreme Court's opinions has squarely addressed the issue presented in this case, we explain below our view that the constitutionality of charging extra-unit litigation costs to nonmember employees turns on the same "germaneness" test that applies to all other pooled services under Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991).

A. Origins of Supreme Court Doctrine

Over the course of the past thirty years, the Supreme Court has repeatedly addressed the First Amendment implications of "union shops" or "agency shops," where union membership, or service fee payment, is required as a condition of continued employment. See supra note 3. The early cases in this field dealt with railroads and their employees, after Congress passed a provision of the Railway Labor Act that required every employee working for a particular unit to provide financial support to the exclusive bargaining representative for that unit. See, e.g., Railway Employees' Dep't. v. Hanson, 351 U.S. 225 (1956); Machinists v. Street, 367 U.S. 740 (1961). Those cases upheld the constitutionality of the relevant provisions of the Railway Labor Act and concluded that Congress could impinge on employees' rights to free speech and free association by requiring their payment of dues to a union, in order to promote peaceful labor relations and efficient labor representation. Hanson, 351 U.S. at 235-38; Street, 367 U.S. at 768.

In Street, the Court held that Congress's permissible reasons for passing the statute meant that fees or dues could be required from nonmembers only insofar as those fees were related to the union's role as negotiator and administrator of the collective bargaining agreement. Street, 367 U.S. at 768-69. Thus, it would be a violation of the First Amendment if Congress permitted railroads (or other private sector employers) to forcibly collect funds from employees in order to "finance the campaigns of candidates for federal and state offices whom [the nonmember employees] opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which [they] disagreed." Id. at 744. Given these principles, employers who designate a particular union as the exclusive bargaining agent for their employees cannot require those employees to subsidize or financially support the political or ideological activities of the union.

B. Abood v. Detroit Board of Education

In 1977, in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Court considered a Michigan statute allowing local governments to create "agency shops." The Supreme Court thus faced the question whether, and to what degree, the constitutional implications of the agency shop arrangement were altered by the nonmembers' role as government employees. The Court concluded that the same legislative purposes underlay the state's and Congress' endorsement of an agency shop, meaning that the same government interests were at stake in the two situations. Id. at 224-26. The Court explained:

To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, 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. But the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. 'The 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 withdraw his financial support merely because he disagrees with the group's strategy. If that were allowed, we would be reversing the Hanson case, sub silentio.'

Id. at 222-23 (quoting Street, 367 U.S. at 778 (Douglas, J., concurring) (footnote omitted)). The Court also found that the same First Amendment interests in speech and association were at stake, regardless of whether the nonmember employees were employed by a state government or a private entity. Id. at 231-32. Therefore, the Abood majority endorsed the same basic constitutional framework for government employees as had previously been adopted in Hanson and Street. Id. at 225-26, 235-36.

C. Ellis v. Brotherhood of Railway Clerks

After the Supreme Court held in Street and Abood that nonmember employees' service fees could not be used to support political or ideological expression, the focus of litigation shifted to implementation of the general principles articulated in those cases. A series of subsequent cases required the Court to determine two key questions: what sorts of union activities qualify as political or ideological (and therefore are not chargeable to nonmembers), and what procedures must a union adopt to ensure that nonmembers' fees are used properly?

In Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435 (1984), nonmember employees sued a union, claiming that its method of fee collection was unconstitutional. The union collected the same amount from all employees, including dues-paying members and fee-paying nonmembers. At the end of a fiscal year, it would then rebate a portion of the fee to the nonmembers, returning the amount of the fee that correlated to the union's expenditures on political or ideological activities (i.e., nonchargeable expenses). Id. at 439-40. The Court held that the "pure rebate approach is inadequate." Id. at 443. It explained that collection of the full dues amount, and rebate of the improperly collected funds, was tantamount to an "involuntary loan" by the nonmembers, and was impermissible because the union had other, less intrusive ways to collect the service fee. Id. at 444. Although Ellis did not prescribe a particular method for collection of service fees from nonmember employees, it suggested (without requiring) that advance reduction of fees and interest-bearing escrow accounts might be used to resolve the problem. Id.

Having declared invalid the procedure by which this union collected its funds, the Court then addressed the particular expenditures that were challenged by nonmembers. In evaluating these expenditures, the Court recognized that the agency-shop arrangement inherently entailed some "significant impingement on First Amendment rights" because the nonmember employees were, for the sake of peaceful labor relations, being required to "support financially an organization with whose principles and demands [they] may disagree." Id. at 455. The Court nonetheless recognized that this infringement of constitutional rights had been permitted, by its prior decisions in Hanson and Street, because of the strong governmental interests at stake. With those preliminary considerations in mind, it articulated the standard for permissible charges to nonmembers as

whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.

Id. at 448. Pursuant to this standard, only those expenditures arising from activities related to the union's duty of representation to all of the employees in the bargaining unit could be charged to all employees.

One of the six specific expenditures at issue in Ellis was litigation costs. The Court held:

The expenses of litigation incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit are clearly chargeable to petitioners as a normal incident of the duties of the exclusive representative. The same is true of fair representation litigation arising within the unit, of jurisdictional disputes with other unions, and of any other litigation before agencies or in the courts that concerns bargaining unit employees and is normally conducted by the exclusive representative. The expenses of litigation not having such a connection with the bargaining unit are not to be charged to objecting employees.

Id. at 453. Consistent with Ellis' general definition of relevance (or "germaneness," as the Court would later describe it), which focuses on activities that are related to a union's collective bargaining duties, litigation expenses chargeable to nonmembers would also have to be related to the bargaining process for the particular local unit. Extra-unit litigation, by definition, could not satisfy this standard. See supra note 1.

D. Chicago Teachers Union v. Hudson

In Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), the Court addressed one union's attempt to implement the Ellis decision. The union charged all nonmember employees a service fee equal to 95% of the dues required of members; the proportion was calculated based on the union's expenditures on chargeable activities during the prior fiscal year. Id. at 295. The union informed all nonmembers that they would be required to pay this amount and that they could object to the "proportionate share" (i.e., the fee calculation) in writing, if they did so within thirty days of the first payment. Id. at 296. Once an objection was raised, a three-step process would begin. First, the union's executive committee would consider the objection. If the committee did not agree with the objection, the objector could appeal the issue to the union's executive board. Finally, if the objection remained unresolved, the union president would select an arbitrator, to be paid by the union, who would resolve the issue. An objector who prevailed at any of these levels would receive a rebate for the contested amount, and all future service fees would be reduced accordingly. Id. The issue in Hudson, therefore, was whether the union had taken sufficient precautions to prevent "'compulsory subsidization of ideological activity.'" Id. at 302 (quoting Abood, 431 U.S. at 237).

The Supreme Court began by observing once again that the government's interests in efficient and peaceful labor relations, while sufficient to permit enforcement of an agency shop policy, were not so great as to render the First Amendment interests of nonmember employees irrelevant. Therefore, it stated that unions must devise a means to collect the service fee which would be "carefully tailored to minimize the infringement," and the nonmember employees must be given enough information and adequate procedural mechanisms to allow them to "identify the impact of the governmental action on [their] interests and to assert a meritorious First Amendment claim." Id. at 303.

The Court first held that the union's fee collection was unconstitutional because it was functionally comparable to the pure rebate system that had been rejected in Ellis. Id. at 305. Next, the Court held that the union's method of making an advance reduction of dues (the 5% reduction from the full dues amount) was inadequate because it failed to provide nonmembers with sufficient information to allow them to determine whether they wished to object. Id. at 306-07. The Court emphasized that the union had a duty to provide an explanation of how the advance reduction was calculated and some expenditure information. Id. at 306-07 & n.18. The Court also held that placing the entire fee paid by nonmembers into an escrow account could not cure otherwise defective procedures (such as inadequate explanation of the fee or a biased dispute resolution procedure), but that a union must escrow the "amounts reasonably in dispute" pending the resolution of any objections raised by nonmembers. Id. at 310. Finally, the Court held that the union must "provide for a reasonably prompt decision by an impartial decisionmaker" after a nonmember employee files an objection. Id. at 307. Summarizing its conclusions, the Court held that the "constitutional requirements for the Union's collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." Id. at 310.

The Supreme Court recently decided Davenport v. WashingtonEducation Ass'n, 127 S. Ct. 2372 (2007), in which it elaborated onthe procedural requirements previously articulated in Hudson. Davenport, however, is not relevant here because it focused on thepermissibility of a state statute imposing a requirement on unionsoperating under agency shop agreements that they obtain affirmativeconsent from nonmembers before spending those nonmembers' agencyfees on election-related activities. Id. at 2379. There is nosuch issue in this case.

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E. Lehnert v. Ferris Faculty Association

In Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991), the Court addressed, for the first time, the chargeability of "pooled expenses." The defendant union in Lehnert was a local affiliate of both a state union (the Michigan Education Association, or "MEA") and a larger, national union (the National Education Association, or "NEA"). It paid affiliation fees to the MEA and the NEA; these fees, along with the fees paid by all other local affiliates, were used by the state and national unions to support various activities at the state and national level. The affiliation fees also ensured the local unit's access to the MEA's and NEA's resources when the unit needed them (and the correlative availability of those resources to other local units when they were in need). The union passed a portion of its affiliation fees obligation on to nonmembers, by counting a percentage of the affiliation fees within the chargeable category of expenditures. That chargeable category was calculated by dividing the MEA's and NEA's total expenditures by those expenditures it made on "chargeable" activities. The nonmember plaintiffs in Lehnert challenged the amount of the service fee, based on the inclusion of certain expenditures in the category of "chargeable" expenses.

The Lehnert Court began by reviewing the relevant precedents and deriving from them a three-part test for determining whether a particular union expenditure is chargeable to nonmembers: "chargeable activities must (1) be 'germane' to collective-bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding 'free riders'; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop." Id. at 519.

We refer to this three-part test as either the"chargeability test" or the "Lehnert test."

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The Court then analyzed the nonmembers' claim "that they may be charged only for those collective-bargaining activities undertaken directly on behalf of their unit." Id. at 522. It focused on the language from Hanson requiring that expenditures charged to nonmembers be "germane" to collective bargaining and concluded that such expenditures need not have "a direct relationship" to the nonmembers' bargaining unit in order to satisfy the germaneness prong of the chargeability test. Id. at 522-23. The Court explained:

The essence of the affiliation relationship is the notion that the parent will bring to bear its often considerable economic, political, and informational resources when the local is in need of them. Consequently, 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 year.

Id. at 523. Thus the nonmembers' service fees could include "their pro rata share of the costs associated with otherwise chargeable activities of [the local unit's] state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees' bargaining unit." Id. at 524. In other words, the Court concluded that the use of a pooling or affiliation arrangement, with its requirement that a local union pay an affiliation fee to the state or national union, would not render expenditures that were otherwise chargeable (that is, substantively relevant to collective bargaining) non-germane to the local bargaining unit.

The Court cautioned, however, that the permissibility of pooling arrangements "does not serve to grant a local union carte blanche to expend dissenters' dollars for bargaining activities wholly unrelated to the employees in their unit." Id. The Lehnert Court, therefore, adopted a different standard of germaneness than that used by the Ellis Court. While Ellis defined germane activities as those directly related to the local unit's bargaining process, 466 U.S. at 448, Lehnert recognized germaneness as having two distinct components: charged expenditures must be (1) substantively related to collective bargaining, and (2) "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. Thus, Lehnert defined germaneness more broadly to take account of the nature of affiliation relationships and the pooling of resources characteristic of such relationships.

Although a majority of the Justices agreed on this general standard for evaluating the chargeability of pooled expenses, they did not reach agreement on the permissibility of charging nonmembers for extra-unit litigation funded through a pooling arrangement. Justice Blackmun's majority opinion, joined in some parts by four other Justices, did not garner five votes for the paragraph discussing extra-unit litigation and is not controlling on that subject. Id. at 510, 528. There, Justice Blackmun said that the costs of litigation "that does not concern the dissenting employees' bargaining unit" would not be "germane to the union's duties as exclusive bargaining representative." Id. at 528.

Justice Blackmun's approach to extra-unit litigation wasbased on his view that such litigation was analytically similar topolitical lobbying or ideological expressive activities. He statedthat extra-unit litigation is "more akin to lobbying in both kindand effect," Lehnert, 500 U.S. at 528 (plurality), because of its"political and expressive nature," id. He then concluded:

Moreover, union litigation may cover a diverse range ofareas from bankruptcy proceedings to employmentdiscrimination. When unrelated to an objectingemployee's unit, such activities are not germane to theunion's duties as exclusive bargaining representative. Just as the Court in Ellis determined that the RLA, asinformed by the First Amendment, prohibits the use ofdissenters' fees for extraunit litigation, we hold thatthe Amendment proscribes such assessments in the publicsector.

Id. (internal citations omitted).

Close Justice Blackmun concluded that extra-unit litigation, which does not involve the nonmembers' own unit by definition, was categorically not germane because it does not "concern" the union's role as bargaining agent for that specific unit. Id. He declined to apply the two-part germaneness test that he prescribed for other pooled expenses (requiring a substantive relationship to bargaining and a benefit conferred on the unit, through the reciprocal pooling arrangement), and specifically rejected the notion that such litigation might be germane where it would "ultimately be of some use to" the particular unit. Id.

Justice Marshall, who concurred in part and dissented in part, wrote separately about the litigation issue and expressly noted that Justice Blackmun's paragraph on the topic was dicta. Id. at 544 ("The [principal] opinion's discussion of extra-unit litigation costs is no more than dicta since . . . no such costs are at issue in this case.") (Marshall, J., concurring in part and dissenting in part). Justice Marshall also stated that he would reject any per se rule against charging for extra-unit litigation expenses, suggesting that such expenditures would be subject to the same germaneness test as other pooled resources (and thus would be potentially chargeable). Id. at 546-47.

Justice Marshall observed that it is not entirely clearwhether Justice Blackmun intended to endorse a per se rule againstthe chargeability of extra-unit litigation or whether he intendedto allow for the possibility that some such litigation could becharged to nonmembers. 500 U.S. at 546-57 (Marshall, J.,concurring in part and dissenting in part). As indicated, we readJustice Blackmun's opinion as adopting a per se rule against thechargeability of extra-unit litigation costs. If he intended amore flexible approach, Justice Blackmun's articulation wouldpermit charging for extra-unit litigation only in rarecircumstances.

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Finally, Justice Scalia, joined by Justices O'Connor, Souter, and Kennedy (in part), dissented and argued that the only chargeable costs are those arising from performance of the union's "statutory duties as exclusive bargaining agent." Id. at 550 (Scalia, J., concurring in part and dissenting in part). Justice Scalia rejected the "germaneness" test and argued that the governmental interest in preventing the "free rider" problem was limited to the union's statutory duties to such potential free riders. In other words, the union could collect service fees only for its involvement in those activities that it was required by law to pursue. Id. at 556-57. Justice Scalia did agree with the majority, however, that nonmembers could be charged for the costs of providing statutorily required services through a pooling arrangement. Id. at 561 ("It would . . . be appropriate to charge the cost of [national-affiliate provided] services actually provided to [the local unit] itself, since they relate directly to performance of the union's collective-bargaining duty. It would also be appropriate to charge to nonunion members an annual fee charged by NEA in exchange for contractually promised availability of such services from NEA on demand."); id. at 562 (explaining that pooled resources are chargeable where they provide a tangible benefit to the particular bargaining unit and its duties as exclusive representative, because there is a "tangible benefit . . . [in having] expert consulting services on call, even in the years when they are not used"). Justice Scalia did not mention extra-unit litigation specifically, most likely because no such charges were at issue in Lehnert. Id. at 544 (Marshall, J., concurring).

In light of this fractured opinion, Lehnert did not resolve the specific question before us in this case: whether a union may charge nonmembers for expenses related to litigation conducted by a national affiliate, if the litigation is substantively related to the bargaining process and is funded through a pooling arrangement. Lehnert did provide the framework, however, for analyzing the question.

III.

Before applying the Lehnert test to the facts of this case, we review some of the decisions from other circuits which have addressed the chargeability to nonmembers of the costs of extra-unit litigation in light of the Supreme Court decisions that we have discussed.

A. Other Circuits' Decisions

In Pilots Against Illegal Dues v. Air Line Pilots Ass'n, 938 F.2d 1123 (10th Cir. 1991) ("PAID"), a case decided shortly after Lehnert, the Tenth Circuit nevertheless relied heavily on Ellis in its analysis. The Air Line Pilots Association ("ALPA") charged nonmember employees of United Airlines for some of its costs associated with the litigation surrounding Continental Airlines' bankruptcy proceedings. Id. at 1127. ALPA claimed that these costs were properly chargeable because its success in the Continental litigation, which related to the Continental employees' collective bargaining rights, would generally strengthen the union, and thereby benefit the United bargaining unit. Id. at 1129. The Tenth Circuit rejected this argument because it applied the definition of "germaneness" articulated in Ellis and concluded that the Continental litigation did not "concern" or "relate to" the United bargaining unit. Id. at 1129-30.

The PAID court upheld the chargeability of pooled expensesfor contract administration and bargaining. 938 F.2d at 1128-29. Therefore, the Tenth Circuit did not find the pooling arrangementitself problematic, but concluded, in the context of extra-unitlitigation, that the particular litigation at issue in that casecould not satisfy the germaneness test because it did not benefitthe local unit. Id. at 1129. It is frankly unclear whether thelitigation charges at issue in PAID were part of a poolingarrangement, or were simply expenses that nonmembers were asked todefray (without any specific reassurance that future litigationdirectly relating to their unit would be funded by other units,creating the reciprocity that was necessary to the Lehnert Court'sapproval of pooling arrangements). We assume, however, given thebrief description of ALPA's method of calculating chargeableexpenses, that the litigation was funded through a poolingarrangement.

Close The PAID court quoted from Ellis at length and concluded that only expenditures which "directly concerned" or "benefitted" the particular bargaining unit could be germane. Id. at 1130 ("In order for litigation expenses to be charged to a bargaining unit, the litigation must concern the members of the bargaining unit."). Therefore, the court held that the "ALPA may not charge objecting United pilots for expenses incurred in litigation on behalf of the Continental bargaining unit" because the United unit did not benefit from that litigation. Id. at 1129. This approach effectively prevents unions from charging nonmembers for any extra-unit litigation because, by definition, extra-unit litigation will not directly involve or concern the nonmembers' unit.

PAID does include some language that hints at thepossibility of permitting some extra-unit litigation expendituresto be charged to nonmembers. E.g., 938 F.2d at 1130 (stating thatthe extra-unit litigation costs were not chargeable because theunion "failed to show that the litigation involving Continental wasrelated to the plaintiffs' bargaining unit," thereby suggesting thepossibility that other extra-unit litigation might be chargeable ifsuch a relationship were shown). This suggestion creates anunresolved tension in PAID with the "directly concerned" or"benefitted" language in the opinion which reflects a per seapproach to the extra-unit litigation issues.

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Four years later, the Sixth Circuit came to a different conclusion because it applied a different legal standard. In Reese v. City of Columbus, 71 F.3d 619, 624 (6th Cir. 1995), that court held that the Lehnert chargeability test applies to extra-unit litigation expenses and that such expenses are, therefore, chargeable to nonmembers where they are shown to be related to collective bargaining and ultimately "inure to the benefit" of the local unit (as pooling arrangements inevitably do). In other words, the Reese court adopted the definition of germaneness articulated in Lehnert, rather than the narrower definition adopted in Ellis. This approach, in contrast to that taken in PAID, means that extra-unit litigation funded through pooling arrangements will be chargeable whenever it substantively involves collective bargaining because the affiliation relationship itself provides the required connection between the expenditure and the local unit. The Reese court examined the fractured Lehnert decision closely and found that the general approach to pooled expenses endorsed by the majority of the Supreme Court (i.e., that costs incurred through pooling arrangements could be charged to nonmembers if they were germane to collective bargaining) applied to extra-unit litigation, as it did to other pooled resources. Id.

Most recently, the Third Circuit addressed the chargeability of extra-unit litigation in Otto v. Pennsylvania State Education Ass'n, 330 F.3d 125 (3d Cir. 2003), and aligned itself with the Sixth Circuit. In Otto, the nonmember employee-plaintiffs worked for a local school district and were required to pay agency shop fees to the local and state education associations. The plaintiffs claimed, among other things, that the local unit's expense pooling arrangement with the state association resulted in their payment of unconstitutional charges for extra-unit litigation. Id. at 128-29. The Third Circuit framed the question before it this way: "[W]hether a union may charge non-members for their pro rata share of expenses that relate to litigation and that were incurred on behalf of an affiliate union pursuant to a cost-sharing agreement." Id. at 135. The court noted that the Lehnert decision had not agreed on how such extra-unit litigation costs would fare under its definition of germaneness, meaning that there was no "definitive Supreme Court guidance." Id. at 136-38.

The Otto court applied the Lehnert germaneness test to the particular extra-unit litigation costs that the local union had charged to the nonmembers. It concluded that those expenditures provided a sort of insurance to the local unit by ensuring "the [future] availability of resources for [the unit's own] collective-bargaining-related litigation," and, in that way, inuring to the benefit of the local unit. Id. at 139. The court thus deemed the expenditures germane to the local unit's role as collective bargaining agent. Id. Under the second prong of the Lehnert chargeability test, the court said that "the free-rider concerns applicable to other pooled-expense arrangements apply with equal force to extra-unit litigation expenditures." Id. Finally, under the third prong of the test, the court concluded that where the pooled resources are being used for litigation that relates to collective bargaining, there would be "'little additional infringement of First Amendment rights beyond that already accepted.'" Id. (quoting Ellis, 466 U.S. at 456). Therefore, the Third Circuit concluded that pooling arrangements for extra-unit litigation should be treated like other pooling arrangements, with costs chargeable to nonmembers so long as they satisfied the three-part Lehnert test, including the Lehnert definition of germaneness. Id.

B. MSEA's Extra-Unit Litigation Charges

In granting summary judgment for MSEA, the district court held "as a matter of law that the inclusion of the cost of extra-unit litigation does not violate Plaintiffs' constitutional rights." Locke v. Karass, 425 F. Supp. 2d 137, 147 (D. Me. 2006). It cited the decisions of the Sixth and Third Circuits, and stated that "[t]hose circuit courts that have ruled on the issue have found that it is constitutionally permissible for unions to include extra-unit litigation expenses in the service fees charged to nonmembers." Id. at 146-47.

The appellants argue that the district court failed to give due weight to the Supreme Court's earlier decision in Ellis, which stated 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. at 453. They claim that this language is dispositive and bars the union from charging nonmembers for any extra-unit litigation costs. In addition, they cite to Justice Blackmun's opinion in Lehnert, representing four Justices, and its endorsement of the Ellis per se prohibition on charging for extra-unit litigation, 500 U.S. at 528, in support of their argument. They also contend that our decision in Romero v. Colegio de Abogados de Puerto Rico, 204 F.3d 291, 299 (1st Cir. 2000), is controlling here because, they say, it holds that charging nonmembers for litigation, other than that conducted by or for the particular bargaining unit, is unconstitutional.

In response, MSEA argues that Ellis is not relevant to this case because it did not address the chargeability of pooled resources, and its discussion of extra-unit litigation is therefore inapplicable to the facts here. The union also challenges appellants' reliance on Romero, arguing that its discussion of chargeability for extra-unit litigation was dicta.

Romero involved a challenge to certain expenditures by thePuerto Rico bar association, to which all lawyers in Puerto Ricoare required to pay dues. We held that the chargeability test,articulated in Lehnert, 500 U.S. at 519, applied to expenditures onideological and non-ideological activities alike. 204 F.3d at 300-02. In the course of its discussion, the panel stated that the"[Supreme] Court also said that the union could not compel paymentfor litigation expenses not arising out of the contract or notnormally conducted by an exclusive bargaining agent, despite thefact that there could be some indirect benefit to union members." Id. at 299 (citing Ellis, 466 U.S. at 453). This sentence wasdicta. Extra-unit litigation expenses were not at issue in Romero.

Close MSEA urges us to adopt the reasoning of the Third and Sixth Circuits, finding that the three-part Lehnert test should apply to extra-unit litigation in the same way that it applies to all other pooling arrangements.

We agree with MSEA that both Lehnert's germaneness definition and three-part chargeability test are applicable here. Like the Third Circuit, we believe the chargeability of extra-unit litigation "lies in the intersection of the Ellis and Lehnert holdings," 330 F.3d at 135. The Ellis decision holds that nonmembers cannot be charged for litigation that does not "concern" their own bargaining unit. 466 U.S. at 453. While the language in Ellis suggests, at first blush, that only litigation by or for the particular bargaining unit involved can be charged to nonmembers, a closer reading of the opinion reveals a more limited holding. As Otto noted, the Ellis court was not confronted with a pooling arrangement, 330 F.3d at 136; its decision pertained only to the direct contribution of local union monies to litigation efforts by other units (or by a national affiliate) — meaning contributions to litigation expenses given without expectation of reciprocal contributions at a later time.

Such "direct" contributions describe two means by which alocal unit could contribute to extra-unit litigation outside of apooling arrangement. First, the term encompasses direct donationsto another local unit to support litigation efforts by that otherunit. Second, the term also covers donations by a local unit tothe national affiliate, above and beyond the amount of theaffiliation fee, to be used to support litigation efforts. Inother words, "direct contribution" describes any contribution toextra-unit litigation that is made outside of the normalaffiliation fee or participation in a pooled resources arrangement. Cf. Lehnert, 500 U.S. at 524 (distinguishing between pooledresources and "direct donation[s] or interest-free loan[s] to anunrelated bargaining unit," or "contribution[s] by a local union toits parent that is not part of the local's responsibilities as anaffiliate but is in the nature of a charitable donation").

Close See also Lehnert, 500 U.S. at 564 (Kennedy, J., concurring in the judgment in part and dissenting in part) (noting that Ellis "contains no discussion" of whether it would be permissible for a local unit to charge nonmembers for bargaining-related litigation "through a cost sharing arrangement under the auspices of the affiliate"). Moreover, the litigation that was deemed nonchargeable in Ellis was specifically defined as "litigation not involving the negotiation of agreements or settlement of grievances." 466 U.S. at 440. Therefore, the import of the decision in Ellis, relying on a narrow definition of germaneness, is limited by its factual background (i.e., a direct funding arrangement).

Lehnert addressed a different factual context — a pooling arrangement — and explored the reasons that pooled expenditures for litigation fall outside the rule articulated in Ellis. 500 U.S. at 523-24. The best way to reconcile Ellis and Lehnert is to recognize this distinction. Ellis continues to be good law, and to mean what it literally says, in cases involving a unit's direct expenditures to support litigation by other bargaining units. But where monies are spent in a pooling arrangement, as described by Lehnert, Ellis does not bar the chargeability of extra-unit litigation expenses, and Lehnert's definition of germaneness, applicable generally to pooling arrangements, applies sensibly to litigation expenses funded by such a pooling arrangement.

Under Lehnert, an activity is germane if it is substantively related to bargaining and will "ultimately inure to the benefit of the members of the local union," 500 U.S. at 524. Where a unit enters a pooling arrangement, the pool itself provides a benefit to the local unit. As noted in Otto, the pooling arrangement is akin to insurance, whereby the local unit contributes certain amounts to a larger fund in order to ensure that the larger fund will provide resources (in the form of services or money) in return, when the local unit needs them. See id. at 522-24; Otto, 330 F.3d at 136 ("Even if a local union party to such an arrangement does not litigate in any given year, it still derives a tangible benefit from participating in an expense-pooling agreement: the availability of on-call resources greater than those it could muster individually."). This arrangement, therefore, differs in kind from unilateral, non-reciprocal contributions to extra-unit litigation (of the sort at issue in Ellis), for which a bargaining unit would have no reasonable expectation of any return benefit. The funding mechanism used is critical to a determination of which definition of germaneness ought to apply. The Ellis definition assumes, and thereby requires, a direct source of funding, whereas the Lehnert definition of germaneness assumes the existence of an affiliation or pooling relationship. As this case involves extra-unit litigation funded through a pooling agreement, we conclude that the Lehnert definition of germaneness should apply.

Although Justice Blackmun's treatment of extra-unit litigation costs in Lehnert did not command a majority of the Court and hence is not controlling, appellants rely heavily on it, and its grounding in Ellis. However, like some of Justice Blackmun's colleagues, we are not persuaded by his analysis. Justice Blackmun stated that "extraunit litigation [is] more akin to lobbying [than collective bargaining] in both kind and effect." 500 U.S. at 528. He noted that union litigation "may cover a diverse range of areas from bankruptcy proceedings to employment discrimination," and concluded that it was essentially "political and expressive" in nature. Id. The Lehnert Court, consistent with the earlier decisions in Hanson, 351 U.S. at 238, and Abood, 431 U.S. at 235, recognized that purely political or ideological expenditures could not constitutionally be charged to nonmembers. Therefore, once Justice Blackmun characterized extra-unit litigation as expressive and political, 500 U.S. at 528, he had no need to apply the general chargeability test set forth in Lehnert to the costs of such litigation.

We think, however, that litigation is not susceptible to a single label. Some litigation may be purely expressive, and therefore clearly outside the scope of chargeable activities. However, other litigation may be central to the negotiation and administration of a collective bargaining agreement. In this case, the appellants have not challenged MSEA's characterization of the litigation for which the nonmembers were charged as "related" to collective bargaining. There is no contention that the litigation at issue is purely expressive or political.

Therefore, we apply the Lehnert three-prong test to determine whether MSEA's contributions to SEIU's litigation efforts were properly chargeable. If the SEIU litigation was "germane" to MSEA's collective bargaining duties, as that term was defined in Lehnert, if it was justified by the government's interests in labor peace and prevention of free riders, and if it did "not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop," 500 U.S. at 519, the costs of MSEA's contribution to that litigation were chargeable to the appellants.

The appellants have not, before the district court or on appeal, argued that the particular expenditures for which they were charged failed to satisfy this test. Instead, relying on Ellis, and Justice Blackmun's treatment of extra-unit litigation costs in Lehnert, they have argued only that, as a matter of law, extra-unit litigation could not be deemed "germane," and hence the costs associated with it could not be charged to nonmembers. Having rejected that argument, we are bound to conclude that the costs at issue here do satisfy the chargeability test, as there has been no dispute regarding the second and third prongs of the test.

In addressing this extra-unit litigation issue, the district court held "as a matter of law[,] that the inclusion of the cost of extra-[unit] litigation does not violate Plaintiffs' constitutional rights." 425 F. Supp. 2d at 147. Viewed in isolation, apart from the arguments framed by the parties, that language might be read to endorse a per se rule that all extra-unit litigation can be charged to nonmembers. However, as we have noted, the parties did not dispute whether the litigation charges were "germane," as that term was defined in Lehnert. Therefore, the district court must have assumed, consistent with the representations made to it, that the extra-unit litigation charges before it were "germane" within the meaning of Lehnert. On the basis of that understanding, we agree with the district court's disposition of the extra-unit litigation issue.

IV.

Appellants also claim that the district court erred in finding no flaw in the process used by MSEA to assess the nonmember fee. They argue that Hudson implicitly, if not explicitly, imposed a requirement that unions make an advance reduction of the service fee based on the percentage of expenditures that are classified as nonchargeable. They further argue that the calculation must be done in "good faith."

As already noted, MSEA did make an advance reduction, assessing approximately 49% of its members' dues as a service fee on nonmembers. Given that fact, we decline to consider whether such a reduction is mandatory under Hudson.

The district court's order denying a preliminary injunctionheld that an advance reduction was not required. Locke v. Karass,382 F. Supp. 2d 181, 191 (D. Me. 2005) ("Assuming the union'snotice is adequate enough to protect nonmembers' ability todetermine whether to object, Hudson holds that an impartialarbitrator and the escrowing of objectors' fees pending resolutionof the complaint is sufficient to safeguard the nonmembers'constitutional rights."). Appellants focused on this ruling intheir brief, despite its mootness.

Close The only remaining issue before us, therefore, is the method by which the service fee is calculated. However, appellants' challenge to the method of calculation is simply a reiteration in different terms of their challenge to the constitutionality of extra-unit litigation charges. That is, appellants claim that the definition of "chargeable" was excessively broad because it included extra-unit litigation expenditures. They have not identified any procedural defects in the notice and explanation that MSEA provided to nonmembers. They also have not disputed any discrete charges based on the facts or circumstances of the expenditure. There is no second issue to decide.

V.

In the aftermath of the Supreme Court's decisions in Ellis and Lehnert, we understand the uncertainty about the constitutionality of charging nonmembers of a union for the costs of extra-unit litigation. However, for the reasons described above, we find that Lehnert and Ellis can be reconciled by identifying the mechanism by which a local unit contributes to extra-unit litigation. Where extra-unit litigation is funded through direct contributions, as in Ellis, nonmembers may not be charged for those expenditures. Where the litigation is funded through a pooling arrangement, the broader Lehnert definition of germaneness applies and the affiliation relationship between the state or national union and the local unit will be sufficient to demonstrate that the expenditures will "inure to the benefit" of the local unit; thus, in these situations, charges will be germane so long as the litigation at issue relates to the bargaining process.

The facts in this case are not disputed. The extra-unit litigation costs were funded through a pooling arrangement and were substantively related to the bargaining process. Those costs are chargeable to the nonmember appellants without offending the First Amendment of the Constitution.

Affirmed.

-- Concurring Opinion Follows --

LYNCH, Circuit Judge, joining and concurring. The National Right to Work Legal Defense Foundation, representing non-unionized Maine state employees, brought this case in the hopes of persuading the Supreme Court to resolve an issue that the Court left unanswered in Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991), and on which the circuit courts differ.

Unions that take on the role of exclusive bargaining representative according to the terms of a collective bargaining agreement owe a duty to bargain on behalf of all employees. Indeed, once the union has been certified as the exclusive bargaining representative, the employees may not negotiate independently with management. Unions secure collective goods for those employees, such as higher wages, benefits, and job security. See generally D. Leslie, Labor Bargaining Units, 70 Va. L. Rev. 353, 354-60 (1984). All employees enjoy at least some of the fruits of a union's efforts, but only union members pay union dues.

Union security mechanisms such as agency shop agreements combat this free rider problem by ensuring that nonmembers who benefit from the union's collective bargaining activities pay their fair share to support the union. Id. at 379; see also Commc'ns Workers v. Beck, 487 U.S. 735, 747-54 (1988) (discussing role of free rider problem in legislative history of the National Labor Relations Act and the Railway Labor Act). An agency shop agreement requires "that employees, as a condition of continued employment, must either become members of the union, with the attendant dues obligation, or pay the union a service fee." 2 J. Higgins, The Developing Labor Law 2143-44 (5th ed. 2006). That fee, as is true in this case, is typically less than the fee union members pay and covers the cost of those common benefits that non-union employees have derived.

Compelling government employees to pay union fees raises constitutional issues. The First Amendment forbids a public employees' union from requiring payment by nonmembers of fees used to support ideological activities not "germane to its duties as collective bargaining representative." Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235 (1977). The limits of "germaneness," which lie between the poles of union expenditures for purely ideological activities and expenditures for core collective bargaining activities, lead to much litigation between unions and nonmember employees. See, e.g., R. Gorman & M. Finkin, Basic Text on Labor Law 921-27 (2d ed. 2004).

Maine law allows agency shop agreements, as the National Labor Relations Act permits the state to choose to do. Opinion of the Justices, 401 A.2d 135, 147-48 (Me. 1979); see also 29 U.S.C. § 152(2) (exempting government employers from the NLRA); Davenport v. Wash. Educ. Ass'n, 127 S. Ct. 2372, 2376 (2007). The Maine State Employees Association, Local 1989, Service Employees International Union, AFL-CIO-CLC ("Local 1989"), includes in its calculation of expenses chargeable to nonmembers some portion of the affiliation fees the local pays to SEIU, its national parent union. The agency fees may include only that portion of these so-called "extra-unit expenses" for activities "germane" to the local bargaining unit.

The actual sums involved here help set the context of this dispute. As of July 2005, members of Local 1989 paid biweekly union fees of $18.20. Nonmember employees subject to the "full fair share" agency fee were charged $8.94 each biweekly pay period. Plaintiffs themselves were "grandfathered" nonmembers assessed only 50% of the usual agency fees, or $4.47 biweekly, until June 2006.

A portion equal to 13.86% of the Local's agency fees was attributable to extra-unit expenditures (i.e. affiliation fees paid to SEIU). The national union accounted for 12.08% of that sum as "professional fees and expenses." That line item represents 1.67% of the agency fees charged to employees that did not join Local 1989. For nonmember employees charged their "full fair share," that amounts to a charge of $.15 biweekly -- or $.30 per month -- for all professional services charged by the national union to Local 1989. An undefined proportion of the extra-unit professional expenses are attributable to litigation. Thus, the maximum monetary amount at issue in this case is less than fifteen cents each month to each of the plaintiffs when they were grandfathered, and less than thirty cents to other nonmembers paying agency fees. (Bolding, coloring, italics, added) Narsbars.

The very narrow issue raised by this case is whether Local 1989's agency shop fees must exclude SEIU's extra-unit litigation expenses from the usual rule for calculating chargeable extra-unit expenses. Lehnert ruled that chargeability of extra-unit expenses is subject to "a case-by-case analysis." 500 U.S. at 519. Chargeable activities must "(1) be 'germane' to collective bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding 'free riders'; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an [agency shop]." Id. There is no dispute that the extra-unit litigation by SEIU was "germane" in that pertinent sense. The question plaintiffs present is a categorical one -- are extra unit litigation expenses so different from other extra-unit expenses that they should per se be treated differently for agency fee purposes? As described well in Judge Lipez's opinion, Lehnert did not directly answer the question. I think the answer is, clearly, "No."

The First Amendment is not violated by allowing extra-unit litigation expenses to be charged according to the same criteria of germaneness as other extra-unit expenses. Extra-unit litigation expenses are not analytically different from other pooled extra-unit expenses. See Int'l Ass'n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1016 (7th Cir. 1998) (Posner, C.J.) (noting that in challenge to extra-unit fees, litigation expenses were "treated separately by the parties but [are] analytically identical, as far as we can see"). The National Labor Relations Board, an administrative body with particularized expertise in administering labor disputes under the NLRA, has so held for over a decade. California Saw & Knife Works, 320 N.L.R.B. 224, 239 (1995).

The free rider problem, which justifies both local and extra-unit agency fees, exists equally for litigation costs as for other extra-unit costs. Extra-unit litigation can create common benefits or avoid common detriments. Litigation conducted by national unions frequently establishes precedent that redounds to the benefit of a union local and the employees it represents, even when the local is not a named party. For example, terms within a collective bargaining agreement may not yet have been established as having a particular meaning, and extra-unit litigation could establish a union-friendly definition. Or a local may believe that a particular practice common to its segment of an industry is an actionable unfair labor practice and contractual violation, but the national may decide for strategic reasons that a lawsuit is better brought with an extra-unit plaintiff.

Another benefit to a local of contributing fees to thenational's litigation fund is that one day that fund may bemobilized to help resolve the local's own bargaining disputes. SeeOtto v. Penn. State Educ. Ass'n, 330 F.3d 125, 138-39 (3d Cir.2003).

Close In return for these considerable benefits, a local union need pay an affiliation fee to the national. There is no reason to think, and no evidence presented by the plaintiffs to prove, that the free rider problem is eliminated simply because the common extra-unit benefit is obtained through litigation. In fact, such a position "overlooks the economic interdependence of bargaining units." Int'l Ass'n of Machinists, 133 F.3d at 1016.

Further, if a particular extra-unit lawsuit is too remote and indirect in benefit to a local bargaining unit, or if a national union brings a suit for purposes totally unrelated to its collective bargaining duties, that problem may be addressed by a particularized germaneness inquiry. The existence of this mechanism to determine germaneness itself argues against any per se exclusion of extra-unit litigation expenses. If a case is brought to advance a political position, then the Lehnert rule itself will exclude that litigation from the agency fee.

A contrary rule would result in significant practical detriment for both local and national unions. Adopting plaintiffs' proposed rule would lead to reducing unions' ability to draw on funds for litigation related to collective bargaining. There would be a concomitant reduced capacity to bargain effectively on behalf of all employees. Ultimately, chipping away at the scope of properly chargeable expenses could jeopardize the income stream of unions. Cf. R. Posner, Some Economics of Labor Law, 51 U. Chi. L. Rev. 988, 1004 (1984).

Under Lehnert, the marginal burden on the First Amendment rights of non-union employees imposed by adding germane extra-unit litigation fees to the agency fee is minimal. On the facts here,

Hypothetically, those costs on the facts in a given casecould be so burdensome, and the benefits so attenuated, that therecould be a First Amendment violation. Our concern here is not withan extreme case but with whether to adopt a categorical rule.

Close the financial burden for extra-unit litigation costs is very small. The added burden on the plaintiffs' expressive and associative rights could not amount to any significant diminution -- let alone infringement -- of First Amendment rights.

The proposed categorical rule could be viewed in another dimension. All of the affected parties need a clear set of rules by which to operate. It could be argued that a flat rule prohibiting all extra-unit litigation from being chargeable to non-union employees would be easily administrable and therefore economically efficient. But given that some of SEIU's extra-unit expenses can be charged to nonmembers, it is unclear why the deletion of one component of that charge-back would make the system materially easier to administer. Indeed, there is no evidence in this record that any additional administrative costs are imposed by charging back germane extra-unit litigation expenses. This tracking and allocation of litigation expenses is a routine accounting matter.

A great many resources have been spent thus far on the issue here and elsewhere. Decision of this issue by the Supreme Court would provide needed clarity.

E.T.I. 2009
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