Public Sector Unions May Use Agency Fees for National Litigation Expenses

Locke v. Karass (U.S. Supreme Court, Case 07-610) (Issued on 1/21/09)

Nonmembers (fair share fee payers) of a union local brought suit claiming that the First Amendment prohibits charging them for any portion of the service fee the local union pays the national that represents litigation conducted by the national union that does not directly benefit the local (what the court called “national litigation.”)

The Supreme Court held that under the First Amendment, “a local union may charge a nonmember an appropriate share of its contribution to a national’s litigation expenses if (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for ‘services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.’”

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This decision resolves confusion among the circuit courts as to when national litigation costs may be assessed against fair share fee payers. However, the test enunciated by the Court raises other questions. For example, what constitutes a “reciprocal” arrangement and what is the test to determine if litigation inures to the benefit of nonmembers? A concurrence by Justice Alito and joined by the Chief Justice and Justice Scalia emphasized that these issues were not addressed in the main decision. The concurrence also cited to the Government’s argument that the burden of establishing a reciprocal arrangements rests on the national union, and not on the objecting fee payer.

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