Section 8(a)(3) of the National Labor Relations Act (NLRA) permits an employer and
a union to enter into an agreement requiring all employees in the bargaining unit to pay
union dues as a condition of continued employment, whether or not the employees become
union members. Petitioner Communications Workers of America (CWA) entered into a
collective-bargaining agreement that contains a union-security clause under which all
represented employees who do not become union members must pay the union "agency
fees" in amounts equal to the dues paid by union members. Respondents,
bargaining-unit employees who chose not to become union members, filed this suit in
Federal District Court, challenging CWA's use of their agency fees for purposes other than
collective bargaining, contract administration, or grievance adjustment (hereinafter
"collective-bargaining" activities). They alleged that expenditure of their fees
on activities such as organizing the employees of other employers, lobbying for labor
legislation, and participating in social, charitable, and political events violated CWA's
duty of fair representation, 8(a)(3), and the First Amendment. The court concluded that
CWA's collection and disbursement of agency fees for purposes other than
collective-bargaining activities violated the associational and free speech rights of
objecting nonmembers, and granted injunctive relief and an order for reimbursement of
excess fees. The Court of Appeals, preferring to rest its judgment on a ground other than
the Constitution, ultimately concluded, inter alia, that the collection of non-members'
fees for purposes unrelated to collective bargaining violated CWA's duty of fair
representation.
Held:
1. The courts below properly exercised jurisdiction over respondents' claims that
exactions of agency fees beyond those necessary to finance collective-bargaining
activities violated the judicially created duty of fair representation and respondents'
First Amendment rights. Although the National Labor Relations Board (Board) had primary
jurisdiction over respondents' 8(a)(3) claim, cf. San Diego Building Trades Council v.
Garmon, 359
U.S. 236, the courts below were not precluded from deciding the merits of that claim
insofar as such a decision was necessary [487 U.S. 735, 736] to the disposition of respondents'
duty-of-fair-representation challenge. Federal courts may resolve unfair labor practice
questions that emerge as collateral issues in suits brought under independent federal
remedies. Respondents did not attempt to circumvent the Board's primary jurisdiction by
casting their statutory claim as a violation of CWA's duty of fair representation.
Instead, the necessity of deciding the scope of 8(a)(3) arose because CWA and its
copetitioner local unions sought to defend themselves on the ground that the statute
authorizes the type of union-security agreement in issue. Pp. 742-744.
2. Section 8(a)(3) does not permit a union, over the objections of dues-paying
nonmember employees, to expend funds collected from them on activities unrelated to
collective-bargaining activities. Pp. 744-762.
(a) The decision in Machinists v. Street, 367
U.S. 740 - holding that 2, Eleventh of the Railway Labor Act (RLA) does not permit a
union, over the objections of nonmembers, to expend agency fees on political causes - is
controlling, for 8(a)(3) and 2, Eleventh are in all material respects identical. Their
nearly identical language reflects the fact that in both Congress authorized compulsory
unionism only to the extent necessary to ensure that those who enjoy union-negotiated
benefits contribute to their cost. Indeed, Congress, in 1951, expressly modeled 2,
Eleventh on 8(a)(3), which it had added to the NLRA by the Taft-Hartley Act only four
years earlier, and emphasized that it was extending to railroad labor the same rights and
privileges of the union shop that were contained in the Taft-Hartley Act. Pp. 744-747.
(b) Section 8(a)(3) was intended to correct abuses of compulsory unionism that had
developed under "closed shop" agreements and, at the same time, to require,
through union-security clauses, that nonmember employees pay their share of the cost of
benefits secured by the union through collective bargaining. These same concerns prompted
Congress' later amendment of the RLA. Given the parallel purpose, structure, and language
of 8(a)(3) and 2, Eleventh, both provisions must be interpreted in the same manner. Only
the most compelling evidence would support a contrary conclusion, and petitioners have not
proffered such evidence here. Pp. 747-754.
(c) Petitioners claim that the union-security provisions of the RLA and NLRA
should be read differently in light of the different history of unionism in the regulated
industries - that is, the tradition of voluntary unionism in the railway industry prior to
the 1951 amendment of the RLA and the history of compulsory unionism in NLRA-regulated
industries prior to 1947. Petitioners contend that because agreements requiring the
payment of uniform dues were not among the specific abuses Congress sought to remedy in
the Taft-Hartley Act, 8(a)(3) cannot plausibly be read to prohibit the collection of fees
in excess of those [487 U.S. 735, 737]
necessary to cover the costs of collective bargaining. This argument is unpersuasive
because the legislative history of 8(a)(3) shows that Congress was concerned with numerous
and systemic abuses of the closed shop and therefore resolved to ban the closed shop
altogether, to the extent it permitted union-security agreements at all, Congress was
guided - as it was in its later amendment of the RLA - by the principle that those
enjoying the benefits of union representation should contribute their fair share to the
expense of securing those benefits. Moreover, it is clear that Congress understood its
actions in 1947 and 1951 to have placed the respective regulated industries on an equal
footing insofar as compulsory unionism was concerned. Pp. 754-756.
(d) The fact that in the Taft-Hartley Act Congress expressly considered proposals
regulating union finances but ultimately placed only a few limitations on the collection
and use of dues and fees, and otherwise left unions free to arrange their financial
affairs as they saw fit, is not sufficient to compel a broader construction of 8(a)(3)
than that accorded 2, Eleventh in Street. The legislative history of 8(a)(3) shows that
Congress was concerned with the dues and rights of union members, not the agency fees and
rights of nonmembers. The absence, in such legislative history, of congressional concern
for the rights of nonmembers is consistent with the view that Congress understood 8(a)(3)
to afford nonmembers adequate protection by authorizing the collection of only those fees
necessary to finance collective-bargaining activities. Nor is there any merit to the
contention that, because unions had previously used members' dues for a variety of
purposes in addition to collective-bargaining agreements. Congress' silence in 1947 as to
the uses to which unions could put nonmembers' fees should be understood as an
acquiescence in such union practices. Pp. 756-761.
(e) Street cannot be distinguished on the theory that the construction of 2,
Eleventh was merely expedient to avoid the constitutional question - as to the use of fees
for political causes that nonmembers find objectionable - that otherwise would have been
raised because the RLA (unlike the NLRA) pre-empts state laws banning union-security
agreements and thus nonmember fees were compelled by "governmental action." Even
assuming that the exercise of rights permitted, though not compelled, by 8(a)(3) does not
involve state action, and that the NLRA and RLA therefore differ in such respect,
nevertheless the absence of any constitutional concerns in this case would not warrant
reading the nearly identical language of 8(a)(3) and 2, Eleventh differently. Pp. 761-762.
800 F.2d 1280, affirmed.
[487
U.S. 735, 738]
BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and
WHITE, MARSHALL, and STEVENS, JJ., joined, and in Parts I and II of which BLACKMUN,
O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and
dissenting in part, in which O'CONNOR and SCALIA, JJ., joined, post, p. 763. KENNEDY, J.,
took no part in the consideration or decision of the case.
Laurence Gold argued the cause for petitioners. With him on the briefs were Thomas
S. Adair, James Coppess, and George Kaufmann.
Edwin Vieira, Jr., argued the cause for respondents. With him on the brief was
Hugh L. Reilly.*
[Footnote *] David M. Silberman filed a brief for the
American Federation of Labor and Congress of Industrial Organizations as amicus curiae
urging reversal.
Briefs of amici curiae urging affirmance were filed for the Landmark Legal
Foundation by Jerald L. Hill and Mark J. Bredemeier; for the Pacific Legal Foundation et
al. by Ronald A. Zumbrun and Anthony T. Caso; and for Senator Jesse Helms et al. by Thomas
A. Farr, W. W. Taylor, Jr., and Robert A. Valois.
Solicitor General Fried, Deputy Solicitor General Cohen, Norton J. Come, and Linda
Sher filed a brief for the United States as amicus curiae.
JUSTICE BRENNAN delivered the opinion of the Court.
Section 8(a)(3) of the National Labor Relations Act of 1935 (NLRA), 49 Stat. 452,
as amended, 29 U.S.C. 158(a)(3), permits an employer and an exclusive bargaining
representative to enter into an agreement requiring all employees in the bargaining unit
to pay periodic union dues and initiation fees as a condition of continued employment,
whether or not the employees otherwise wish to become union members. Today we must decide
whether this provision also permits a union, over the objections of dues-paying nonmember
employees, to expend funds so collected on activities unrelated to collective bargaining,
contract administration, or grievance adjustment, and, if so, whether such expenditures
violate the union's duty of fair representation or the objecting employees' First
Amendment rights. [487 U.S. 735, 739]
I
In accordance with 9 of the NLRA, 49 Stat. 453, as amended, 29 U.S.C. 159, a
majority of the employees of American Telephone and Telegraph Company and several of its
subsidiaries selected petitioner Communications Workers of America (CWA) as their
exclusive bargaining representative. As such, the union is empowered to bargain
collectively with the employer on behalf of all employees in the bargaining unit over
wages, hours, and other terms and conditions of employment, 9(a), 29 U.S.C. 159(a), and it
accordingly enjoys "broad authority . . . in the negotiation and administration of
[the] collective bargaining contract." Humphrey v. Moore, 375
U.S. 335, 342 (1964). This broad authority, however, is tempered by the union's
"statutory obligation to serve the interests of all members without hostility or
discrimination toward any," Vaca v. Sipes, 386
U.S. 171, 177 (1967), a duty that extends not only to the negotiation of the
collective-bargaining agreement itself but also to the subsequent enforcement of that
agreement, including the administration of any grievance procedure the agreement may
establish. Ibid. CWA chartered several local unions, copetitioners in this case, to assist
it in discharging these statutory duties. In addition, at least in part to help defray the
considerable costs it incurs in performing these tasks, CWA negotiated a union-security
clause in the collective-bargaining agreement under which all represented employees,
including those who do not wish to become union members, must pay the union "agency
fees" in "amounts equal to the periodic dues" paid by union members.
Plaintiffs' Complaint 11 and Plaintiffs' Exhibit A-1, 1 Record. Under the clause,
failure to tender the required fee may be grounds for discharge.
In June 1976, respondents, 20 employees who chose not to become union members,
initiated this suit challenging CWA's use of their agency fees for purposes other than
collective bargaining, contract administration, or grievance adjustment [487 U.S. 735, 740] (hereinafter
"collective-bargaining" or "representational" activities).
Specifically, respondents alleged that the union's expenditure of their fees on activities
such as organizing the employees of other employers, lobbying for labor legislation, and
participating in social, charitable, and political events violated petitioners' duty of
fair representation, 8(a)(3) of the NLRA, the First Amendment, and various common-law
fiduciary duties. In addition to declaratory relief, respondents sought an injunction
barring petitioners from exacting fees above those necessary to finance
collective-bargaining activities, as well as damages for the past collection of such
excess fees.
The District Court concluded that the union's collection and disbursement of
agency fees for purposes other than bargaining unit representation violated the
associational and free speech rights of objecting nonmembers, and therefore enjoined their
future collection. 468 F. Supp. 93 (Md. 1979). Applying a "clear and convincing"
evidentiary standard, the District Court concluded that the union had failed to show that
more than 21% of its funds were expended on collective-bargaining matters. App. to Pet.
for Cert. 119a. The court ordered reimbursement of all excess fees respondents had paid
since January 1976, and directed the union to institute a recordkeeping system to
segregate accounts for representational and noncollective-bargaining activities. Id., at
125a, 108a-109a.
A divided panel of the United States Court of Appeals for the Fourth Circuit
agreed that respondents stated a valid claim for relief under the First Amendment, but,
preferring to rest its judgment on a ground other than the Constitution, concluded that
the collection of nonmembers' fees for purposes unrelated to collective bargaining
violated 8(a)(3). 776 F.2d 1187 (1985). Turning to the specific activities challenged, the
majority noted that the District Court's adoption of a "clear and convincing"
standard of proof was improper, but found that for certain categories of expenditures,
such [487 U.S. 735, 741]
as lobbying, organizing employees in other companies, and funding various community
services, the error was harmless inasmuch as the activities were indisputably unrelated to
bargaining unit representation. The majority remanded the case for reconsideration of the
remaining expenditures, which the union claimed were made in connection with valid
collective-bargaining activities. Chief Judge Winter dissented. Id., at 1214. He concluded
that 8(a)(3) authorized exaction of fees in amounts equivalent to full union dues,
including fees expended on nonrepresentational activities, and that the negotiation and
enforcement of agreements permitting such exactions was private conduct incapable of
violating the constitutional rights of objecting nonmembers.
On rehearing, the en banc court vacated the panel opinion and by a 6-to-4 vote
again affirmed in part, reversed in part, and remanded for further proceedings. 800 F.2d
1280 (1986). The court explained in a brief per curiam opinion that five of the six
majority judges believed there was federal jurisdiction over both the 8(a)(3) and the
duty-of-fair-representation claims, and that respondents were entitled to judgment on
both. Judge Murnaghan, casting the deciding vote, concluded that the court had
jurisdiction over only the duty-of-fair-representation claim; although he believed that
8(a) (3) permits union-security clauses requiring payment of full union dues, he concluded
that the collection of such fees from nonmembers to finance activities unrelated to
collective bargaining violates the union's duty of fair representation. All six of these
judges agreed with the panel's resolution of the specific allocations issue and
accordingly remanded the action. Chief Judge Winter, joined by three others, again
dissented for the reasons set out in his earlier panel dissent.
The decision below directly conflicts with that of the United States Court of
Appeals for the Second Circuit. See Price v. Auto Workers, 795 F.2d 1128 (1986). We
granted certiorari to resolve the important question concerning the [487 U.S. 735, 742] validity of
such agreements, 482
U.S. 904 (1987), and now affirm.
II
At the outset, we address briefly the jurisdictional question that divided the
Court of Appeals. Respondents sought relief on three separate federal claims: that the
exaction of fees beyond those necessary to finance collective-bargaining activities
violates 8(a)(3); that such exactions violate the judicially created duty of fair
representation; and that such exactions violate respondents' First Amendment rights. We
think it clear that the courts below properly exercised jurisdiction over the latter two
claims, but that the National Labor Relations Board (NLRB or Board) had primary
jurisdiction over respondents' 8(a)(3) claim.
In San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959), we held that "[w]hen an activity is arguably subject to 7 or 8
of the [NLRA], the States as well as the federal courts must defer to the exclusive
competence of the [Board] if the danger of state interference with national policy is to
be averted." Id., at 245 (emphasis added). A simple recitation of respondents'
8(a)(3) claim reveals that it falls squarely within the primary jurisdiction of the Board:
respondents contend that, by collecting and using agency fees for nonrepresentational
purposes, the union has contravened the express terms of 8(a)(3), which, respondents
argue, provides a limited authorization for the collection of only those fees necessary to
finance collective-bargaining activities. There can be no doubt, therefore, that the
challenged fee-collecting activity is "subject to" 8.
While the five-judge plurality of the en banc court did not explain the basis of
its jurisdictional holding, the panel majority concluded that because courts have
jurisdiction over challenges to union-security clauses negotiated under 2, Eleventh of the
Railway Labor Act (RLA), 64 Stat. 1238, 45 U.S.C. 152, Eleventh, which is in all material
respects identical to 8(a)(3), there must be a parity of federal jurisdiction
[487 U.S. 735, 743] over 8(a)(3)
claims. Unlike the NLRA, however, the RLA establishes no agency charged with administering
its provisions, and instead leaves it to the courts to determine the validity of
activities challenged under the Act. The primary jurisdiction of the NLRB, therefore,
cannot be diminished by analogies to the RLA, for in this regard the two labor statutes do
not parallel one another. The Court of Appeals erred, then, to the extent that it
concluded it possessed jurisdiction to pass directly on respondents' 8(a)(3) claim.
The court was not precluded, however, from deciding the merits of this claim
insofar as such a decision was necessary to the disposition of respondents'
duty-of-fair-representation challenge. Federal courts may resolve unfair labor practice
questions that "emerge as collateral issues in suits brought under independent
federal remedies," Connell Construction Co. v. Plumbers, 421
U.S. 616, 626 (1975), and one such remedy over which federal jurisdiction is well
settled is the judicially implied duty of fair representation. Vaca v. Sipes, 386
U.S. 171 (1967). This jurisdiction to adjudicate fair-representation claims
encompasses challenges leveled not only at a union's contract administration and
enforcement efforts, id., at 176-188, but at its negotiation activities as well. Ford
Motor Co. v. Huffman, 345
U.S. 330 (1953). Employees, of course, may not circumvent the primary jurisdiction of
the NLRB simply by casting statutory claims as violations of the union's duty of fair
representation. Respondents, however, have done no such thing here; rather, they claim
that the union failed to represent their interests fairly and without hostility by
negotiating and enforcing an agreement that allows the exaction of funds for purposes that
do not serve their interests and in some cases are contrary to their personal beliefs. The
necessity of deciding the scope of 8(a)(3) arises because petitioners seek to defend
themselves on the ground that the statute authorizes precisely this type of agreement.
Under these circumstances, the Court of Appeals [487 U.S. 735, 744] had jurisdiction to decide the 8(a)(3)
question raised by respondents' duty-of-fair-representation claim.1
III
Added as part of the Labor Management Relations Act, 1947, or Taft-Hartley Act,
8(a)(3) makes it an unfair labor practice for an employer "by discrimination in
regard to hire or tenure of employment . . . to encourage or discourage membership in any
labor organization." 29 U.S.C. 158 (a)(3). The section contains two provisos without
which all union-security clauses would fall within this otherwise broad condemnation: the
first states that nothing in the Act "preclude[s] an employer from making an
agreement with a labor organization . . . to require as a condition of employment
membership therein" 30 days after the employee attains employment, ibid.; the second,
limiting the first, provides:
"[N]o employer shall justify any discrimination against an employee for
nonmembership in a labor organization (A) if he has reasonable grounds for believing that
such membership was not available to the employee on the same terms and conditions
generally applicable to other members, or (B) if he has reasonable grounds for believing
that membership was denied or terminated for reasons other than the failure . . . to
tender the periodic [487 U.S. 735, 745]
dues and the initiation fees uniformly required as a condition of acquiring or retaining
membership." Ibid.
Taken as a whole, 8(a)(3) permits an employer and a union2
to enter into an agreement requiring all employees to become union members as a condition
of continued employment, but the "membership" that may be so required has been
"whittled down to its financial core." NLRB v. General Motors Corp., 373
U.S. 734, 742 (1963). The statutory question presented in this case, then, is whether
this "financial core" includes the obligation to support union activities beyond
those germane to collective bargaining, contract administration, and grievance adjustment.
We think it does not.
Although we have never before delineated the precise limits 8(a)(3) places on the
negotiation and enforcement of union-security agreements, the question the parties proffer
is not an entirely new one. Over a quarter century ago we held that 2, Eleventh of the RLA
does not permit a union, over the objections of nonmembers, to expend compelled agency
fees on political causes. Machinists v. Street, 367
U.S. 740 (1961). Because the NLRA and RLA differ in certain crucial respects, we have
frequently warned that decisions construing the latter often provide only the roughest of
guidance when interpreting the former. See, e. g., Street, supra, at 743; First National
Maintenance Corp. v. NLRB, 452
U.S. 666, 686, n. 23 (1984). Our decision in Street, however, is far more than merely
instructive here: we believe it is controlling, for 8(a)(3) and 2, Eleventh are in all
material respects identical.3 Indeed, we have previously
described [487 U.S. 735, 746]
the two provisions as "statutory equivalent[s]," Ellis v. Railway Clerks, 466
U.S. 435, 452, n. 13 (1984), and with good reason, because their nearly identical
language reflects the fact that in both Congress authorized compulsory unionism only to
the extent necessary to ensure that those who enjoy union-negotiated benefits contribute
to their cost. Thus, in amending the RLA in 1951, Congress expressly modeled 2, Eleventh
on 8(a)(3), which it had added to the NLRA only four years earlier, and repeatedly
emphasized that it was extending "to railroad labor the same rights and privileges of
the union shop that are contained in the Taft-Hartley Act." 96 Cong. Rec. 17055
(1951) (remarks of Rep. Brown).4 In [487 U.S. 735, 747] these
circumstances, we think it clear that Congress intended the same language to have the same
meaning in both statutes.
A
Both the structure and purpose of 8(a)(3) are best understood in light of the
statute's historical origins. Prior to the enactment of the Taft-Hartley Act of 1947, 61
Stat. 140, 8(3) of the Wagner Act of 1935 (NLRA) permitted majority unions to negotiate
"closed shop" agreements requiring employers to hire only persons who were
already union members. [487 U.S. 735,
748] See Algoma Plywood Co. v. Wisconsin Employment Relations Board, 336
U.S. 301, 307-311 (1949). By 1947, such agreements had come under increasing attack,
and after extensive hearings Congress determined that the closed shop and the abuses
associated with it "create[d] too great a barrier to free employment to be longer
tolerated." S. Rep. No. 105, 80th Cong., 1st Sess., 6 (1947) (S. Rep.), Legislative
History of Labor Management Relations Act, 1947 (Committee Print compiled for the
Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), p. 412 (1974)
(Leg. Hist.). The 1947 Congress was equally concerned, however, that without such
agreements, many employees would reap the benefits that unions negotiated on their behalf
without in any way contributing financial support to those efforts. As Senator Taft, one
of the authors of the 1947 legislation, explained, "the argument . . . against
abolishing the closed shop . . . is that if there is not a closed shop those not in the
union will get a free ride, that the union does the work, gets the wages raised, then the
man who does not pay dues rides along freely without any expense to himself." 93
Cong. Rec. 4887 (1947), Leg. Hist. 1422.5 Thus, the
Taft-Hartley Act was [487 U.S. 735,
749]
"intended to accomplish twin purposes. On the one hand, the most serious
abuses of compulsory unionism were eliminated by abolishing the closed shop. On the other
hand, Congress recognized that in the absence of a union-security provision `many
employees sharing the benefits of what unions are able to accomplish by collective
bargaining will refuse to pay their share of the cost.'" NLRB v. General Motors
Corp., 373
U.S., at 740-741 (quoting S. Rep., at 6, Leg. Hist. 412).
The legislative solution embodied in 8(a)(3) allows employers to enter into
agreements requiring all the employees in a given bargaining unit to become members 30
days after being hired as long as such membership is available to all workers on a
nondiscriminatory basis, but it prohibits the mandatory discharge of an employee who is
expelled from the union for any reason other than his or her failure to pay initiation
fees or dues. As we have previously observed, Congress carefully tailored this solution to
the evils at which it was aimed:
"Th[e] legislative history clearly indicates that Congress intended to
prevent utilization of union security agreements for any purpose other than to compel
payment of union dues and fees. Thus Congress recognized the validity of unions' concerns
about `free riders,' i. e., employees who receive the benefits of union representation but
are unwilling to contribute their fair share of financial support to such union, and gave
unions the power to contract to meet that problem while withholding from unions the power
to cause the discharge of employees for any other reason." Radio Officers v. NLRB, 347
U.S. 17, 41 (1954) (emphasis added). [487 U.S. 735, 750]
Indeed, "Congress' decision to allow union-security agreements at all
reflects its concern that . . . the parties to a collective bargaining agreement be
allowed to provide that there be no employees who are getting the benefits of union
representation without paying for them." Oil Workers v. Mobil Oil Corp., 426
U.S. 407, 416 (1976) (emphasis added).
This same concern over the resentment spawned by "free riders" in the
railroad industry prompted Congress, four years after the passage of the Taft-Hartley Act,
to amend the RLA. As the House Report explained, 75 to 80% of the 1.2 million railroad
industry workers belonged to one or another of the railway unions. H. R. Rep. No. 2811,
81st Cong., 2d Sess., 4 (1950). These unions, of course, were legally obligated to
represent the interests of all workers, including those who did not become members; thus
nonunion workers were able, at no expense to themselves, to share in all the benefits the
unions obtained through collective bargaining. Ibid. Nothing that the "principle of
authorizing agreements for the union shop and the deduction of union dues has now become
firmly established as a national policy for all industry subject to the Labor Management
Relations Act of 1947," the House Report concluded that "[n]o sound reason
exists for continuing to deny to labor organizations subject to the Railway Labor Act the
right to negotiate agreements with railroads and airlines of a character permitted in the
case of labor organizations in the other large industries of the country." Ibid.
In drafting what was to become 2, Eleventh, Congress did not look to 8(a)(3)
merely for guidance. Rather, as Senator Taft argued in support of the legislation, the
amendment "inserts in the railway mediation law almost the exact provisions, so far
as they fit, of the Taft-Hartley law, so that the conditions regarding the union shop and
the check-off are carried into the relations between railroad unions and the
railroads." [487 U.S. 735, 751]
96 Cong. Rec. 16267 (1950).6 This was the universal
understanding, among both supporters and opponents, of the purpose and effect of the
amendment. See n. 4, supra. Indeed, railroad union representatives themselves proposed the
amendment that incorporated in 2, Eleventh, 8(a)(3)'s prohibition against the discharge of
employees who fail to obtain or maintain union membership for any reason other than
nonpayment of periodic dues; in offering this proposal the unions argued, in terms echoing
the language of the Senate Report accompanying the Taft-Hartley Act, that such a
prohibition "remedies the alleged abuses of compulsory union membership . . ., yet
makes possible the elimination of the `free rider' and the sharing of the burden of
maintenance by all of the beneficiaries of union activity." Hearings on H. R. 7789
before the House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., 253
(1950).
In Street we concluded "that 2, Eleventh contemplated compulsory unionism to
force employees to share the costs of negotiating and administering collective agreements,
and the costs of the adjustment and settlement of disputes," but that Congress did
not intend "to provide the unions with a means for forcing employees, over their
objection, to support political causes which they oppose." 367
U.S., at 764. Construing [487 U.S.
735, 752] the statute in light of this legislative history and purpose, we
held that although 2, Eleventh on its face authorizes the collection from nonmembers of
"periodic dues, initiation fees, and assessments . . . uniformly required as a
condition of acquiring or retaining membership" in a union, 45 U.S.C. 152, Eleventh
(b) (emphasis added), this authorization did not "ves[t] the unions with unlimited
power to spend exacted money." 367
U.S., at 768. We have since reaffirmed that "Congress' essential justification
for authorizing the union shop" limits the expenditures that may properly be charged
to nonmembers under 2, Eleventh to those "necessarily or reasonably incurred for the
purpose of performing the duties of an exclusive [bargaining] representative." Ellis
v. Railway Clerks, 466
U.S., at 447-448. Given the parallel purpose, structure, and language of 8(a)(3), we
must interpret that provision in the same manner.7 Like 2,
Eleventh, [487 U.S. 735, 753]
8(a)(3) permits the collection of "periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining membership" in the union,8 and like its counterpart in the RLA, 8(a)(3) was designed to
remedy the inequities posed by "free riders" who would otherwise unfairly profit
from the [487 U.S. 735, 754]
Taft-Hartley Act's abolition of the closed shop. In the face of such statutory congruity,
only the most compelling evidence could persuade us that Congress intended the nearly
identical language of these two provisions to have different meanings. Petitioners have
not proffered such evidence here.
B
(1)
Petitioners claim that the union-security provisions of the RLA and NLRA can and
should be read differently in light of the vastly different history of unionism in the
industries the two statutes regulate. Thus they note that in Street we emphasized the
"long-standing tradition of voluntary unionism" in the railway industry prior to
the 1951 amendment, and the fact that in 1934 Congress had expressly endorsed an
"open shop" policy in the RLA. 367
U.S., at 750. It was this historical background, petitioners contend, that led us to
conclude that in amending the RLA in 1951, Congress "did not completely abandon the
policy of full freedom of choice embodied in the 1934 Act, but rather made inroads on it
for the limited purpose of eliminating the problems created by the `free rider.'"
Id., at 767. The history of union security in industries governed by the NLRA was
precisely the opposite: under the Wagner Act of 1935, all forms of compulsory unionism,
including the closed shop, were permitted. Petitioners accordingly argue that the inroads
Congress made in 1947 on the policy of compulsory unionism were likewise limited, and were
designed to remedy only those "carefully-defined" abuses of the union shop
system that Congress had expressly identified. Brief for Petitioners 42. Because
agreements requiring the payment of uniform dues were not among these specified abuses,
petitioners contend that 8(a) (3) cannot plausibly be read to prohibit the collection of
fees in excess of those necessary to cover the costs of collective bargaining.
[487 U.S. 735, 755]
We find this argument unpersuasive for several reasons. To begin with, the fact
that Congress sought to remedy "the most serious abuses of compulsory union
membership," S. Rep., at 7, Leg. Hist. 413, hardly suggests that the Taft-Hartley Act
effected only limited changes in union-security practices. Quite to the contrary, in
Street we concluded that Congress' purpose in amending the RLA was "limited"
precisely because Congress did not perceive voluntary unionism as the source of widespread
and flagrant abuses, and thus modified the railroad industry's open shop system only to
the extent necessary to eliminate the problems associated with "free riders."
That Congress viewed the Wagner Act's regime of compulsory unionism as seriously flawed,
on the other hand, indicates that its purposes in overhauling that system were, if
anything, far less limited, and not, as petitioners and the dissent contend, equally
circumspect. Not surprisingly, therefore - and in stark contrast to petitioners'
"limited inroads" theory - congressional opponents of the Taft-Hartley Act's
union-security provisions understood the Act to provide only the most grudging
authorization of such agreements, permitting "union-shop agreement[s] only under
limited and administratively burdensome conditions." S. Rep., pt. 2, p. 8, Leg. Hist.
470 (Minority Report). That understanding comports with our own recognition that
"Congress' decision to allow union-security agreements at all reflects its concern
that . . . the parties to a collective bargaining agreement be allowed to provide that
there be no employees who are getting the benefits of union representation without paying
for them." Oil Workers v. Mobil Oil Corp., 426
U.S., at 416 (emphasis added). Congress thus did not set out in 1947 simply to tinker
in some limited fashion with the NLRA's authorization of union-security agreements.
Rather, to the extent Congress preserved the status quo, it did so because of the
considerable evidence adduced at congressional hearings indicating that "such
agreements promoted stability by eliminating `free riders,'" S. Rep., at 7,
[487 U.S. 735, 756] Leg. Hist. 413,
and Congress accordingly "gave unions the power to contract to meet that problem
while withholding from unions the power to cause the discharge of employees for any other
reason." Radio Officers v. NLRB, 347
U.S., at 41 (emphasis added). We therefore think it not only permissible but
altogether proper to read 8(a)(3), as we read 2, Eleventh, in light of this animating
principle.
Finally, however much union-security practices may have differed between the
railway and NLRA-governed industries prior to 1951, it is abundantly clear that Congress
itself understood its actions in 1947 and 1951 to have placed these respective industries
on an equal footing insofar as compulsory unionism was concerned. Not only did the 1951
proponents of the union shop propose adding to the RLA language nearly identical to that
of 8(a)(3), they repeatedly insisted that the purpose of the amendment was to confer on
railway unions precisely the same right to negotiate and enter into union-security
agreements that all unions subject to the NLRA enjoyed. See n. 4, supra. Indeed, a
subtheme running throughout the comments of these supporters was that the inequity of
permitting "free riders" in the railroad industry was especially egregious in
view of the fact that the Taft-Hartley Act gave exclusive bargaining representatives in
all other industries adequate means to redress such problems. It would surely come as a
surprise to these legislators to learn that their efforts to provide these same means of
redress to railway unions were frustrated by the very historical disparity they sought to
eliminate.
(2)
Petitioners also rely on certain aspects of the Taft-Hartley Act's legislative
history as evidence that Congress intended to permit the collection and use of full union
dues, including those allocable to activities other than collective bargaining. Again,
however, we find this history insufficient to compel a [487 U.S. 735, 757] broader construction of 8(a)(3)
than that accorded 2, Eleventh in Street.
First and foremost, petitioners point to the fact that Congress expressly
considered proposals regulating union finances but ultimately placed only a few
limitations on the collection and use of dues and fees, and otherwise left unions free to
arrange their financial affairs as they saw fit. In light of this history and the specific
prohibitions Congress did enact, petitioners argue that there is no warrant for implying
any further limitations on the amount of dues equivalents that unions may collect or the
manner in which they may use them. As originally passed, 7(b) of the House bill guaranteed
union members the "right to be free from unreasonable or discriminatory financial
demands of" unions. Leg. Hist. 176. Similarly, 8(c) of the bill, the so-called
"bill of rights for union members," H. R. Rep., at 31, Leg. Hist. 322, set out
10 protections against arbitrary action by union officers, one of which made it an unfair
labor practice for a union to impose initiation fees in excess of $25 without NLRB
approval, or to fix dues in amounts that were unreasonable, nonuniform, or not approved by
majority vote of the members. Id., at 53. In addition, 304 of the bill prohibited unions
from making contributions to or expenditures on behalf of candidates for federal office.
Id., at 97-98. The conferees adopted the latter provision, see Pipefitters v. United
States, 407
U.S. 385, 405 (1972), and agreed to a prohibition on "excessive" initiation
fees, see 8(b)(5), 29 U.S.C. 158(b) (5), but the Senate steadfastly resisted any further
attempts to regulate internal union affairs. Referring to the House provisions, Senator
Taft explained:
"[T]he Senate conferees refused to agree to the inclusion of this subsection
in the conference agreement since they felt that it was unwise to authorize an agency of
the Government to undertake such elaborate policing of the internal affairs of unions as
this section contemplated . . . . In the opinion of the Senate conferees the language
[487 U.S. 735, 758] which protected
an employee from losing his job if a union expelled him for some reason other than
nonpayment of dues and initiation fees, uniformly required of all members, was considered
sufficient protection." 93 Cong. Rec. 6443 (1947), Leg. Hist. 1540.
Petitioners would have us infer from the demise of this "bill of rights"
that Congress "`rejected . . . general federal restrictions on either the dues
equivalents that employees may be required to pay or the uses to which unions may put such
dues-equivalents,'" and that aside from the prohibition on political expenditures
Congress placed no limitations on union exactions other than the requirement that they be
equal to uniform dues. Brief for Petitioners 39-40 (quoting Brief for United States as
Amicus Curiae 19). We believe petitioners' reliance on this legislative compromise is
misplaced. The House bill did not purport to set out the rights of nonmembers who are
compelled to pay union dues, but rather sought to establish a "bill of rights for
union members" vis-a-vis their union leaders. H. R. Rep., at 31, Leg. Hist. 322
(emphasis added). Thus, 8(c) of the House bill sought to regulate, among other things, the
ability of unions to fine, discipline, suspend, or expel members; the manner in which
unions conduct certain elections or maintain financial records; and the extent to which
they can compel contributions to insurance or other benefit plans, or encumber the rights
of members to resign. Leg. Hist. 52-56. The debate over these provisions focused on the
desirability of Government oversight of internal union affairs, and a myriad of reasons
having nothing whatever to do with the rights of nonmembers accounted for Congress'
decision to forgo such detailed regulation. In rejecting any limitation on dues,
therefore, Congress was not concerned with restrictions on "dues-equivalents,"
but rather with the administrative burdens and [487 U.S. 735, 759] potential threat to individual liberties
posed by Government regulation of purely internal union matters.9
It simply does not follow from this that Congress left unions free to exact dues
equivalents from nonmembers in any amount they please, no matter how unrelated those fees
may be to collective-bargaining activities. On the contrary, the complete lack of
congressional concern for the rights of nonmembers in the debate surrounding the House
"bill of rights" is perfectly consistent with the view that Congress understood
8(a)(3) to afford nonmembers adequate protection by authorizing the collection of only
those fees necessary to finance collective-bargaining activities: because the amount of
such fees would be fixed by their underlying purpose - defraying the costs of collective
bargaining - Congress would have every reason to believe that the lack of any limitations
on union dues was entirely irrelevant so far as the rights of nonmembers were concerned.
In short, we think it far safer and far more appropriate to construe 8(a)(3) in light of
its legislative justification, i. e., ensuring that nonmembers who obtain the benefits of
union representation can be made to pay for them, than by drawing inferences from
Congress' rejection of a proposal that did not address the rights of nonmembers at all.
Petitioners also deem it highly significant that prior to 1947 unions
"`rather typically'" used their members' dues for a "`variety of purposes .
. . in addition to meeting the . . . costs of collective bargaining,'" Retail Clerks
v. Schermerhorn, 373
U.S. 746, 754 (1963), and yet Congress, which was presumably well aware of the
practice, in no way limited the [487
U.S. 735, 760] uses to which unions could put fees collected from
nonmembers. This silence, petitioners suggest, should be understood as congressional
acquiescence in these practices. The short answer to this argument is that Congress was
equally well aware of the same practices by railway unions, see Street, 367
U.S., at 767 ("We may assume that Congress was . . . fully conversant with the
long history of intensive involvement of the railroad unions in political
activities"); Ellis, 466
U.S., at 446 ("Congress was adequately informed about the broad scope of union
activities"), yet neither in Street nor in any of the cases that followed it have we
deemed Congress' failure in 2, Eleventh to prohibit or otherwise regulate such
expenditures as an endorsement of fee collections unrelated to collective-bargaining
expenses. We see no reason to give greater weight to Congress' silence in the NLRA than we
did in the RLA, particularly where such silence is again perfectly consistent with the
rationale underlying 8(a)(3): prohibiting the collection of fees that are not germane to
representational activities would have been redundant if Congress understood 8(a)(3)
simply to enable unions to charge nonmembers only for those activities that actually
benefit them.
Finally, petitioners rely on a statement Senator Taft made during floor debate in
which he explained how the provisos of 8(a)(3) remedied the abuses of the closed shop.
"The great difference [between the closed shop and the union shop]," the Senator
stated, "is that [under the union shop] a man can get a job without joining the union
or asking favors of the union. . . . The fact that the employee has to pay dues to the
union seems to me to be much less important." 93 Cong. Rec. 4886 (1947), Leg. Hist.
1422. On its face, the statement - made during a lengthy legislative debate - is somewhat
ambiguous, for the reference to "union dues" could connote "full union
dues" or could as easily be a shorthand method of referring to
"collective-bargaining-related dues." In any event, as noted above, Senator Taft
later described 2, Eleventh as "almost the exact provisions . . . of the Taft-Hartley
law," 96 Cong. [487 U.S. 735, 761]
Rec. 16267 (1950), and we have construed the latter statute as permitting the exaction of
only those dues related to representational activities. In view of Senator Taft's own
comparison of the two statutory provisions, his comment in 1947 fails to persuade us that
Congress intended virtually identical language in two statutes to have different meanings.
(3)
We come then to petitioners' final reason for distinguishing Street. Five years
prior to our decision in that case, we ruled in Railway Employees v. Hanson, 351
U.S. 225 (1956), that because the RLA pre-empts all state laws banning union-security
agreements, the negotiation and enforcement of such provisions in railroad industry
contracts involves "governmental action" and is therefore subject to
constitutional limitations. Accordingly, in Street we interpreted 2, Eleventh to avoid the
serious constitutional question that would otherwise be raised by a construction
permitting unions to expend governmentally compelled fees on political causes that
nonmembers find objectionable. See 367
U.S., at 749. No such constitutional questions lurk here, petitioners contend, for
14(b) of the NLRA expressly preserves the authority of States to outlaw union-security
agreements. Thus, petitioners' argument runs, the federal pre-emption essential to
Hanson's finding of governmental action is missing in the NLRA context, and we therefore
need not strain to avoid the plain meaning of 8(a)(3) as we did with 2, Eleventh.
We need not decide whether the exercise of rights permitted, though not compelled,
by 8(a)(3) involves state action. Cf. Steelworkers v. Sadlowski, 457
U.S. 102, 121, n. 16 (1982) (union's decision to adopt an internal rule governing its
elections does not involve state action); Steelworkers v. Weber, 443
U.S. 193, 200 (1979) (negotiation of collective-bargaining agreement's
affirmative-action plan does not involve state action). Even assuming that it does not,
and [487 U.S. 735, 762]
that the NLRA and RLA therefore differ in this respect, we do not believe that the absence
of any constitutional concerns in this case would warrant reading the nearly identical
language of 8(a)(3) and 2, Eleventh differently. It is, of course, true that federal
statutes are to be construed so as to avoid serious doubts as to their constitutionality,
and that when faced with such doubts the Court will first determine whether it is fairly
possible to interpret the statute in a manner that renders it constitutionally valid.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades
Council, 485
U.S. 568 (1988); Crowell v. Benson, 285
U.S. 22, 62 (1932). But statutory construction may not be pressed "`to the point
of disingenuous evasion,'" United States v. Locke, 471
U.S. 84, 96 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289
U.S. 373, 379 (1933)), and in avoiding constitutional questions the Court may not
embrace a construction that "is plainly contrary to the intent of Congress."
DeBartolo, supra, at 575. In Street, we concluded that our interpretation of 2, Eleventh
was "not only `fairly possible' but entirely reasonable," 367
U.S., at 750, and we have adhered to that interpretation since. We therefore decline
to construe the language of 8(a)(3) differently from that of 2, Eleventh on the theory
that our construction of the latter provision was merely constitutionally expedient.
Congress enacted the two provisions for the same purpose, eliminating "free
riders," and that purpose dictates our construction of 8(a)(3) no less than it did
that of 2, Eleventh, regardless of whether the negotiation of union-security agreements
under the NLRA partakes of governmental action.
IV
We conclude that 8(a)(3), like its statutory equivalent, 2, Eleventh of the RLA,
authorizes the exaction of only those fees and dues necessary to "performing the
duties of an exclusive representative of the employees in dealing with the
[487 U.S. 735, 763] employer on
labor-management issues." Ellis, 466
U.S., at 448. Accordingly, the judgment of the Court of Appeals is
JUSTICE KENNEDY took no part in the consideration or decision of this case.
Footnotes
[Footnote 1] The courts below, of course, possessed
jurisdiction over respondents' constitutional challenges. Whether or not the NLRB
entertains constitutional claims, see Florida Gulf Coast Building & Construction
Trades Council (Edward J. DeBartolo Corp.), 273 N. L. R. B. 1431, 1432 (1985) (Board
"will presume the constitutionality of the Act [it] administer[s]"); Handy Andy,
Inc., 228 N. L. R. B. 447, 452 (1977) (Board lacks the authority "to determine the
constitutionality of mandatory language in the Act"); see also Johnson v. Robison, 415
U.S. 361, 368 (1974) ("Adjudication of the constitutionality of congressional
enactments has generally been thought beyond the jurisdiction of administrative
agencies"); cf. NLRB v. Catholic Bishop of Chicago, 440
U.S. 490, 495-499 (1979) (reviewing Board's history of determining its jurisdiction
over religious schools in light of Free Exercise Clause concerns), such claims would not
fall within the Board's primary jurisdiction.
[Footnote 2] Section 8(b)(2) makes it unlawful for
unions "to cause or attempt to cause an employer to discriminate against an employee
in violation of subsection (a)(3)," 29 U.S.C. 158(b)(2); accordingly, the provisos to
8(a)(3) also allow unions to seek and enter into union-security agreements.
[Footnote 3] Section 2, Eleventh provides, in
pertinent part:
"Notwithstanding any other provisions of this chapter, or of any other
statute or law of the United States, or Territory thereof, or of any State, any carrier or
carriers as defined in this chapter and a labor organization or [487 U.S. 735, 746] labor
organizations duly designated and authorized to represent employees in accordance with the
requirements of this chapter shall be permitted -
"(a) to make agreements, requiring, as a condition of continued employment,
that within sixty days following the beginning of such employment, or the effective date
of such agreements, whichever is later, all employees shall become members of the labor
organization representing their craft or class: Provided, That no such agreement shall
require such condition of employment with respect to employees to whom membership is not
available upon the same terms and conditions as are generally applicable to any other
member or with respect to employees to whom membership was denied or terminated for any
reason other than the failure of the employee to tender the periodic dues, initiation
fees, and assessments (not including fines and penalties) uniformly required as a
condition of acquiring or retaining membership." 45 U.S.C. 152, Eleventh.
Although 2, Eleventh allows termination of an employee for failure to pay
"periodic dues, initiation fees, and assessments (not including fines and
penalties)," the italicized language was added to the RLA only because some railway
unions required only nominal dues, and financed their bargaining activities through
monthly assessments; having added "assessments" as a proper element of agency
fees, Congress simply clarified that the term did not refer, as it often did in the
parlance of other industries, to fines or penalties. See Machinists v. Street, 367
U.S., at 766. In addition, 2, Eleventh pre-empts state laws that would otherwise ban
union shops. This difference, however, has no bearing on the types of union-security
agreements that the statute permits, and thus does not distinguish the union shop
authorization of 2, Eleventh from that of 8(a)(3).
[Footnote 4] See also S. Rep. No. 2262. 81st Cong., 2d
Sess., 3 (1950) ("[T]he terms of [the bill] are substantially the same as those of
the Labor-Management [487 U.S. 735,
747] Relations Act"); H. R. Rep. No. 2811, 81st Cong., 2d Sess., 4
(1950) (the bill allows unions "to negotiate agreements with railroads and airlines
of a character permitted in the case of labor organizations in the other large industries
of the country"); 96 Cong. Rec. 15737 (1950) (remarks of Sen. Hill) ("The bill .
. . is designed merely to extend to employees and employers subject to the [RLA] rights
now possessed by employees and employers under the Taft-Hartley Act"); id., at 15740
(remarks of Sen. Lehman) ("The railroad brotherhoods should have the same right that
any other union has to negotiate for the union shop"); id., at 16267 (remarks of Sen.
Taft) ("[T]he bill inserts in the railway mediation law almost the exact provisions .
. . of the Taft-Hartley law"); id., at 17049 (remarks of Rep. Beckworth) (the bill
permits railway unions "to bring about agreements with carriers providing for union
shops, a principle enacted into law in the Taft-Hartley bill"); id., at 17055
(remarks of Rep. Biemiller) ("[The] provision . . . gives to railway labor the right
to bargain for the union shop just as any other labor group in the country may do");
id., at 17056 (remarks of Rep. Bennett) ("The purpose of the bill is to amend the
[RLA] to give railroad workers . . . the same right to enjoy the benefits and privileges
of a union-shop arrangement that is now accorded to all workmen in most other types of
employment"); ibid. (remarks of Rep. Heselton) ("[T]his bill primarily provides
for the same kind of treatment of railroad and airline employees as is now accorded
employees in all other industries under existing law"); id., at 17059 (remarks of
Rep. Harris) ("The fundamental proposition involved in the bill [is to extend] the
national policy expressed in the Taft-Hartley Act regarding the lawfulness of . . . the
union shop . . . to . . . railroad and airline labor organizations"); id., at 17061
(remarks of Rep. Vursell) ("This bill simply extends to the railroad workers and
employers the benefit of this provision now enjoyed by all other laboring men under the
Taft-Hartley Act").
[Footnote 5] This sentiment was repeated throughout
the hearings and lengthy debate that preceded passage of the bill. See, e. g., 93 Cong.
Rec. 3557 (1947), Leg. Hist. 740 (remarks of Rep. Jennings) (because members of the
minority "would get the benefit of that contract made between the majority of their
fellow workmen and the management . . . it is not unreasonable that they should go along
and contribute dues like the others"); 93 Cong Rec. 3558, Leg. Hist. 741 (remarks of
Rep. Robison) ("If [union-negotiated] benefits come to the workers all alike, is it
not only fair that the beneficiaries, whether the majority or the minority, contribute
their equal share in securing these benefits?"); 93 Cong. Rec. 3837, Leg. Hist. 1010
(remarks of Sen. Taft) ([T]he legislation, "in effect, . . . say[s], that no one can
get a free ride in such a shop. That meets one of the arguments for a union shop. The
employee has to pay the union dues"); S. Rep., at 6, Leg. Hist. 412 ("In
testifying before this Committee, . . . leaders of organized labor have stressed the fact
that in the absence of [union-security] provisions many employees sharing the benefits of
what unions are able to accomplish [487
U.S. 735, 749] by collective bargaining will refuse to pay their share of
the cost"). See also H. R. Rep. No. 245, 80th Cong., 1st Sess., 80 (1947) (H. R.
Rep.), Leg. Hist. 371 ("[Closed shop] agreements prevent nonunion workers from
sharing in the benefits resulting from union activities without also sharing in the
obligations").
[Footnote 6] Although Senator Taft qualified his
comparison by explaining that the provisions of the Taft-Hartley law were incorporated
into the RLA "so far as they fit," this qualification merely reflected the fact
that the laws were not identical in all respects, their chief difference inhering in their
pre-emptive effect, or lack thereof, on all state regulation of union-security agreements.
See n. 3, supra. This difference, of course, does not detract from the near identity of
the provisions insofar as they confer on unions and employers authority to enter into
union-security agreements, nor does it in any way undermine the force of Senator Taft's
comparison with respect to this authority. Indeed, Taft himself explained that he
initially "objected to some of the original terms of the bill, but when the [bill's]
proponents agreed to accept amendments which made the provisions identical with the
Taft-Hartley law," he decided to support the law. 96 Cong. Rec. 16267 (1950)
(emphasis added).
[Footnote 7] We note that the NLRB, at least for a
time, also took the position that the uniform "periodic dues and initiation
fees" required by 8(a)(3) were limited by the congressional concern with free riders
to those fees necessary to finance collective-bargaining activities. In Teamsters Local
No. 959, 167 N. L. R. B. 1042, 1045 (1967), the Board explained:
"[T]he right to charge `periodic dues' granted unions by the proviso to
Section 8(a)(3) is concerned exclusively with the concept that those enjoying the benefits
of collective bargaining should bear their fair share of the costs incurred by the
collective-bargaining agent in representing them. But it is manifest that dues that do not
contribute, and are not intended to contribute, to the cost of operation of a union in its
capacity as collective-bargaining agent cannot be justified as necessary for the
elimination of `free riders.'"
The Board, however, subsequently repudiated that view. See Detroit Mailers Union
No. 40, 192 N. L. R. B. 951, 952 (1971).
Notwithstanding this unequivocal language, the dissent advises us, post, at 767,
n. 5, that we have misread Teamsters Local. Choosing to ignore the above-quoted passage,
the dissent asserts that the Board never "embraced . . . the view," post, at
767, n. 5, that "periodic dues and initiation fees" are limited to those that
finance the union in its capacity as collective-bargaining agent, because in Teamsters
Local itself the Board concluded that the dues in question "were actually `special
purpose funds,'" and were thus "`assessments' not contemplated by the proviso to
8(a)(3)." Post, at 767, n. 5 [487
U.S. 735, 753] (quoting Teamsters Local, supra, at 1044). This
observation, however, avails the dissent nothing; obviously, once the Board determined
that the dues were not used for collective-bargaining purposes, the conclusion that they
were not dues within the meaning of 8(a)(3) followed automatically. Under the dissent's
reading, had the union simply built the increase into its dues base, rather than initially
denominating it as a "special assessment," it would have been entitled to exact
the fees as "periodic dues" and spend them for precisely the same purposes
without running afoul of 8(a)(3). The Board made entirely clear, however, that it was the
purpose of the fee, not the manner in which it was collected, that controlled, and thus
explained that "[m]onies collected for a credit union or building fund even if
regularly recurring, as here, are obviously not `for the maintenance of the' [union] as an
organization, but are for a `special purpose' and could be terminated without affecting
the continued existence of [the union] as the bargaining representative." Teamsters
Local, supra, at 1045 (emphasis added). Finally, the dissent's portrayal of Teamsters
Local as part of an unbroken string of consistent Board decisions on the issue is belied
by the dissenting statement in Detroit Mailers, in which member Jenkins, who joined the
decision in Teamsters Local, charged that the Board had ignored the clear holding of that
earlier case. 192 N. L. R. B., at 952-953.
[Footnote 8] Construing both 8(a)(3) and 2, Eleventh
as permitting the collection and use of only those fees germane to collective bargaining
does not, as petitioners seem to believe, read the term "uniform" out of the
statutes. The uniformity requirement makes clear that the costs of representational
activities must be borne equally by all those who benefit; without this language, unions
could conceivably establish different dues rates both among members and between members
and nonmembers, and thereby apportion the costs of collective bargaining unevenly. Indeed,
the uniformity requirement inures to the benefit of dissident union members as well, by
ensuring that if the union discriminates against them by charging higher dues, their
failure to pay such dues cannot be grounds for discharge. See 8(b)(2), 29 U.S.C. 158(b)(2)
(making it an unfair labor practice for a union "to cause or attempt to cause an
employer to discriminate against an employee . . . with respect to whom membership in [the
union] has been denied or terminated on some ground other than [the] failure to tender the
periodic dues and initiation fees uniformly required") (emphasis added).
[Footnote 9] See, e. g., H. R. Rep., at 76-77, Leg.
Hist. 367-368 (Minority Views) (charging that Government regulation was essentially
impossible; that the encroachment on the rights of voluntary organizations such as unions
was "without parallel"; and that such regulation invited harassment by rival
unions and employers, and ultimately complete governmental control over union affairs).
JUSTICE BLACKMUN, with whom JUSTICE O'CONNOR and JUSTICE SCALIA join, concurring
in part and dissenting in part.
I agree that the District Court and the Court of Appeals properly exercised
jurisdiction over respondents' duty-of-fair-representation and First Amendment claims, and
that the National Labor Relations Board had primary jurisdiction over respondents' claim
brought under 8(a)(3) of the National Labor Relations Act of 1935, 49 Stat. 452, as
amended, 29 U.S.C. 158(a)(3). I also agree that the Court of Appeals had jurisdiction to
decide the 8(a)(3) question raised by respondents' duty-of-fair-representation claim.1 I therefore join Parts I and II of the Court's opinion.
My agreement with the majority ends there, however, for I cannot agree with its
resolution of the 8(a)(3) issue. Without the decision in Machinists v. Street, 367
U.S. 740 (1961), involving the Railway Labor Act (RLA), the Court could not reach the
result it does today. Our accepted mode of resolving statutory questions would not lead to
a construction of 8(a)(3) so foreign to that section's express language and legislative
history, which show that Congress did not intend to limit either the amount of
"agency fees" (or what the majority labels "dues-equivalents") a union
may collect under a union-security agreement, or the union's expenditure of such funds.
The Court's excessive reliance on Street to reach a [487 U.S. 735, 764] contrary conclusion is manifested by its
unique line of reasoning. No sooner is the language of 8(a)(3) intoned, than the Court
abandons all attempt at construction of this statute and leaps to its interpretation over
a quarter century ago of another statute enacted by a different Congress, a statute with a
distinct history and purpose. See ante, at 744-745. I am unwilling to offend our
established doctrines of statutory construction and strain the meaning of the language
used by Congress in 8(a)(3), simply to conform 8(a)(3)'s construction to the Court's
interpretation of similar language in a different later-enacted statute, an interpretation
which is itself "not without its difficulties." Abood v. Detroit Board of
Education, 431
U.S. 209, 232 (1977) (characterizing the Court's decision in Street). I therefore
dissent from Parts III and IV of the Court's opinion.
I
As the Court observes, "we have never before delineated the precise limits
8(a)(3) places on the negotiation and enforcement of union-security agreements."
Ante, at 745. Unlike the majority, however, I think the issue is an entirely new one. I
shall endeavor, therefore, to resolve it in accordance with our well-settled principles of
statutory construction.
A
As with any question of statutory interpretation, the starting point is the
language of the statute itself. Section 8(a)(3) makes it unlawful for an employer to
"discriminat[e] in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization." 29
U.S.C. 158(a)(3). Standing alone, this proscription, and thus 8(b)(2)'s corollary
proscription,2 effectively would outlaw union-security
agreements. The proscription, however, is qualified by two provisos. The first, which
appeared initially in 8(a)(3) of the [487
U.S. 735, 765] NLRA as originally enacted in 1935, 49 Stat. 452, generally
excludes union-security agreements from statutory condemnation by explaining that
"nothing in [the NLRA] or in any other statute of the United States, shall
preclude an employer from making an agreement with a labor organization . . . to require
as a condition of employment membership therein . . . if such labor organization is the
representative of the employees as provided in section 159(a) of this title . . . ."
8(a)(3), 29 U.S.C. 158(a)(3).
The second proviso, incorporated in 8(a)(3) by the Taft-Hartley Amendments of
1947, 61 Stat. 141,3 circumscribes the first proviso's
general exemption by the following limitations:
"[N]o employer shall justify any discrimination against an employee for
nonmembership in a labor organization . . . if he has reasonable grounds for believing
that membership was denied or terminated for reasons other than the failure of the
employee to tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership."
The plain language of these statutory provisions, read together, permits an
employer and union to enter into an agreement requiring all employees, as a condition of
continued employment, to pay uniform periodic dues and initiation fees.4 The second proviso expressly allows an employer to terminate any
"employee," pursuant to a union-security agreement permitted by the first
proviso, if the employee [487 U.S. 735,
766] fails "to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining membership" in the union.
29 U.S.C. 158(a)(3). The term "employee," as statutorily defined, includes any
employee, without regard to union membership. See 29 U.S.C. 152 (3). Union-member
employees and nonunion-member employees are treated alike under 8(a)(3).
"[W]e assume `that the legislative purpose is expressed by the ordinary
meaning of the words used.'" American Tobacco Co. v. Patterson, 456
U.S. 63, 68 (1982), quoting Richards v. United States, 369
U.S. 1, 9 (1962). The terms "dues" and "fees," as used in the
proviso, can refer to nothing other than the regular, periodic dues and initiation fees
paid by "voluntary" union members. This was the apparent understanding of the
Court in those decisions in which it held that 8(a)(3) permits union-security agreements.
See NLRB v. General Motors Corp., 373
U.S. 734, 736 (1963) (approving a union-security proposal that would have conditioned
employment "upon the payment of sums equal to the initiation fee and regular monthly
dues paid by the union members"); Retail Clerks v. Schermerhorn, 373
U.S. 746, 753 (1963) (upholding agreement requiring nonmembers to pay a "service
fee [which] is admittedly the exact equal of membership initiation fees and monthly
dues"). It also has been the consistent view of the NLRB,5
"the agency entrusted [487 U.S.
735, 767] by Congress with the authority to administer the NLRA."
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades
Council, 485
U.S. 568, 574 (1988). The provisos do not give any employee, union member or not, the
right to pay less than the full amount of regular dues and initiation fees charged to all
other bargaining-unit employees. [487
U.S. 735, 768]
The Court's conclusion that 8(a)(3) prohibits petitioners from requiring
respondents to pay fees for purposes other than those "germane" to collective
bargaining, contract administration, and grievance adjustment simply cannot be derived
from the plain language of the statute. In effect, the Court accepts respondents'
contention that the words "dues" and "fees," as used in 8(a)(3), refer
not to the periodic amount a union charges its members but to the portion of that amount
that the union expends on statutory collective bargaining.6
See Brief for Respondents 17-20. Not only is this reading implausible as a matter of
simple English usage, but it is also contradicted by the decisions of this Court and of
the NLRB interpreting the section. Section 8(a)(3) does not speak of "dues" and
"fees" that employees covered by a [487 U.S. 735, 769] union-security agreement may be required to
tender to their union representative; rather, the section speaks only of "the
periodic dues and the initiation fees uniformly required as a condition of acquiring or
retaining membership" (emphasis added). Thus, the section, by its terms, defines
"periodic dues" and "initiation fees" as those dues and fees
"uniformly required" of all members, not as a portion of full dues. As
recognized by this Court, "dues collected from members may be used for a variety of
purposes, in addition to meeting the union's costs of collective bargaining. Unions rather
typically use their membership dues to do those things which the members authorize the
union to do in their interest and on their behalf." Retail Clerks v. Schermerhorn, 373
U.S., at 753-754 (internal quotations omitted). By virtue of 8(a)(3), such dues may be
required from any employee under a union-security agreement. Nothing in 8(a)(3) limits, or
even addresses, the purposes to which a union may devote the moneys collected pursuant to
such an agreement.7
B
The Court's attempt to squeeze support from the legislative history for its
reading of congressional intent contrary to the plain language of 8(a)(3) is unavailing.
As its own discussion of the relevant legislative materials reveals, ante, at 747-750,
there is no indication that the 1947 Congress intended to limit the union's authority to
collect from nonmembers the same periodic dues and initiation fees it collects from
members. Indeed, on balance, the legislative history reinforces [487 U.S. 735, 770] what the
statutory language suggests: the provisos neither limit the uses to which agency fees may
be put nor require nonmembers to be charged less than the "uniform" dues and
initiation fees.
In Machinists v. NLRB, 362
U.S. 411 (1960), the Court stated:
"It is well known, and the legislative history of the 1947 Taft-Hartley
amendments plainly shows, that 8(a)(3) - including its proviso - represented the
Congressional response to the competing demands of employee freedom of choice and union
security. Had Congress thought one or the other overriding, it would doubtless have found
words adequate to express that judgment. It did not do so; it accommodated both interests,
doubtless in a manner unsatisfactory to the extreme partisans of each, by drawing a line
it thought reasonable. It is not for the administrators of the Congressional mandate to
approach either side of that line grudgingly." Id., at 418, n. 7.
The legislative debates surrounding the adoption of 8 (a)(3) in 1947, show that in
crafting the proviso to 8(a)(3), Congress was attempting "only to `remedy the most
serious abuses of compulsory union membership . . . .'" NLRB v. General Motors Corp.,
373
U.S., at 741, quoting from the legislative history. The particular "abuses"
Congress identified and attempted to correct were two: the closed shop, which
"deprives management of any real choice of the men it hires" and gives union
leaders "a method of depriving employees of their jobs, and in some cases [of] a
means of securing a livelihood in their trade or calling, for purely capricious
reasons," S. Rep. No. 105, 80th Cong., 1st Sess., 6 (1947) (S. Rep.), Legislative
History of the Labor Management Relations Act, 1947 (Committee Print compiled for the
Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), p. 412 (1974)
(Leg. Hist.); and those union shops in which the union sought to obtain indirectly the
same [487 U.S. 735, 771]
result as that obtained through a closed shop by negotiating a union-shop agreement and
maintaining a "closed" union where it was free to deny membership to an
individual arbitrarily or discriminatorily and then compel the discharge of that person
because of his nonmembership, 93 Cong. Rec. 3836-3837, 4193, 4885-4886 (1947), Leg. Hist.
1010, 1096-1097, 1420-1421 (remarks of Sen. Taft); 93 Cong. Rec. 4135, Leg. Hist.
1061-1062 (remarks of Sen. Ellender). Senator Taft, the chief sponsor of the Senate bill,
in arguing against an amendment to proscribe all forms of union-security agreements,
stated that it was unwise to outlaw union-security agreements altogether "since there
had been for such a long time so many union shops in the United States, [and] since in
many trades it was entirely customary and had worked satisfactorily," and that
therefore the appropriate approach was to "meet the problem of dealing with the
abuses which had appeared." 93 Cong. Rec. 4885, Leg. Hist. 1420.8 "Congress [487
U.S. 735, 772] [also] recognized that in the absence of a union-security
provision `many employees sharing the benefits of what unions are able to accomplish by
collective bargaining will refuse to pay their share of the cost.'" NLRB v. General
Motors Corp., 373
U.S., at 740-741, quoting S. Rep., at 6, Leg. Hist. 412.
Congress' solution was to ban the closed shop and to permit the enforcement of
union-shop agreements as long as union membership is available "on the same terms and
conditions" to all employees, and mandatory discharge is required only for
"nonpayment of regular dues and initiation fees." S. Rep., at 7, 20, Leg. Hist.
413, 426. Congress was of the view, that, as Senator Taft stated, "[t]he fact that
the employee will have to pay dues to the union seems . . . to be much less important. The
important thing is that the man will have the job." 93 Cong. Rec. 4886 (1947), Leg.
Hist. 1422. "[A] man can get a job with an employer and can continue in that job if,
in effect, he joins the union and pays the union dues.
"If he pays the dues without joining the union, he has the right to be
employed." 93 Cong. Rec. 4886 (1947), Leg. Hist. [487 U.S. 735, 773] 1421-1422. There is no serious doubt that
what Congress had in mind was a situation in which the nonmember employee would "pay
the same dues as other members of the union." 93 Cong. Rec. 4272 (1947), Leg. Hist.
1142 (remarks of Sen. Taft); accord, 93 Cong. Rec. 3557 (1947), Leg. Hist. 740 (remarks of
Sen. Jennings) (members of the minority "should go along and contribute dues like the
others"). In their financial obligations, therefore, these employees were "in
effect," union members, and could not be discharged pursuant to a union-security
agreement as long as they maintained this aspect of union "membership."9 This solution was viewed as "tak[ing] care" of the
free-rider issue. 93 Cong. Rec. 4887 (1947), Leg. Hist. 1422 (remarks of Sen. Taft).
Throughout the hearings and lengthy debate on one of the most hotly contested
issues that confronted the 1947 Congress, not once did any Member of Congress suggest that
8(a)(3) did not leave employers and unions free to adopt and enforce union-security
agreements requiring all employees in the bargaining unit to pay an amount equal to full
union dues and standard initiation fees. Nor did anyone suggest that 8(a)(3) affected a
union's expenditure of such funds.
Indeed, the legislative history indicates that Congress affirmatively declined to
place limitations on either the amount of dues a union could charge or the uses to which
it could put these dues. The Court dismisses as irrelevant the fact that Congress
expressly rejected the House proposal that would have empowered the NLRB to regulate the
"reasonableness" of union dues and expenditures. The Court finds meaningful the
fact that "[t]he House bill did not purport to set out the [487 U.S. 735, 774] rights of
nonmembers who are compelled to pay union dues, but rather sought to establish a `bill of
rights for union members' vis-a-vis their union leaders. H. R. Rep., at 31, Leg. Hist. 322
(emphasis added)." Ante, at 758. But this is a distinction without a difference.
Contrary to the Court's view, Congress viewed this proposal as directly related to
8(a)(3); Congress clearly saw the nonmembers' interests in this context as being
represented by union members.10 Thus, Senator Taft explained
the Senate conferees' reasons for refusing to accept the provisions in the House bill:
"In the opinion of the Senate conferees[,] the language which protected an
employee from losing his job if a union expelled him for some reason other than nonpayment
of dues and initiation fees, uniformly required of all members, was considered sufficient
protection." 93 Cong. Rec. 6443 (1947), Leg. Hist. 1540.
Congress' decision, in the course of the well-documented Senate-House compromise,
not to place any general federal restrictions on the levels or uses of union dues,11 indicates [487
U.S. 735, 775] that it did not intend the provisos to limit the uses to
which agency fees may be put.
The Court invokes what it apparently sees as a single-minded legislative purpose,
namely, the eradication of a "free-rider" problem, and then views the
legislative history through this narrow prism. The legislative materials demonstrate,
however, that, contrary to the impression left by the Court, Congress was not guided
solely by a desire to eliminate "free riders." The 1947 Congress that carefully
crafted 8(a)(3) was focusing on a quite different problem - the most serious abuses of
compulsory unionism. As the majority observes, "Congress carefully tailored [its]
solution to the evils at which it was aimed." Ante, at 749. In serving its purpose,
Congress went only so far in foreclosing compulsory unionism. It outlawed closed shops
altogether, but banned unions from using union-security provisions only where those
provisions exact more than the initiation fees and "periodic dues" uniformly
required as conditions of union [487
U.S. 735, 776] membership. Otherwise, it determined that the regulation of
union-security agreements should be left to specific federal legislation and to the
legislatures and courts of the several States.12 Congress
explicitly declined to mandate the kind of particularized regulation of union dues and
fees which the Court attributes to it today.
II
By suggesting that the 1947 Congress was driven principally by a desire to
eradicate a "free-rider" problem, the Court finds the means not only to distort
the legislative justification for 8(a)(3) and to ignore the provision's plain language,
but also to draw a controlling parallelism to 2, Eleventh of the RLA, 64 Stat. 1238, 45
U.S.C. 152. As mistaken as the Court is in its view of Congress' purpose in enacting
8(a)(3), the Court is even more mistaken in its reliance on this Court's interpretation of
2, Eleventh in Machinists v. Street, 367
U.S. 740 (1961).
The text of 8(a)(3) of the NLRA is, of course, very much like the text of the
later enacted 2, Eleventh of the RLA. This similarity, however, does not dictate the
conclusion that the 1947 Congress intended 8(a)(3) to have a meaning identical to that
which the 1951 Congress intended 2, Eleventh to have. The Court previously has held that
the scope of the RLA is not identical to that of the NLRA and that courts should be wary
of drawing parallels between the two statutes. [487 U.S. 735, 777] See, e. g., First National Maintenance
Corp. v. NLRB, 452
U.S. 666, 686, n. 23 (1981); Railroad Trainmen v. Jacksonville Terminal Co., 394
U.S. 369, 383 (1969). Thus, parallels between 8(a)(3) and 2, Eleventh, "like all
parallels between the NLRA and the Railway Labor Act, should be drawn with the utmost care
and with full awareness of the differences between the statutory schemes." Chicago
& N. W. R. Co. v. Transportation Union, 402
U.S. 570, 579, n. 11 (1971). Contrary to the majority's conclusion, ante, at 750, the
two provisions were not born of the "same concern[s]"; indeed, they were born of
competing concerns. This Court's interpretation of 2, Eleventh, therefore, provides no
support for construing 8(a)(3) in a fashion inconsistent with its plain language and
legislative history.13
The considerations that enabled the Court to conclude in Street, 367
U.S., at 750, that it is "`fairly possible'" and "entirely
reasonable" to read 2, Eleventh to proscribe union-security agreements requiring
uniform payments from all bargaining-unit employees are wholly absent with respect to
8(a)(3). In Street, the Court stressed the fact that from 1926, when the RLA was first
enacted, until 1951 when 2, Eleventh assumed its present form, that Act prohibited all
forms of union security and declared a "policy of complete freedom of choice of
employees to join or not to join a union." Ibid. By 1951, however, Congress
recognized "the expenses and burdens incurred by the unions in the administration of
the complex scheme of the [RLA]." 367
U.S., at 751. The purpose advanced for amending the RLA in 1951 to authorize
union-security agreements for the first time was "the elimination [487 U.S. 735, 778] of the `free
riders.'" 367
U.S., at 761. Given that background, the Court was persuaded that it was possible to
conclude that "Congress did not completely abandon the policy of full freedom of
choice embodied in the . . . Act, but rather made inroads on it for the limited purpose of
eliminating the problems created by the `free rider.'" Id., at 767.
The NLRA does not share the RLA's underlying policy, which propelled the Court's
interpretation of 2, Eleventh in Street. Indeed, the history of the NLRA points in the
opposite direction: the original policy of the Wagner Act was to permit all forms of
union-security agreements, and such agreements were commonplace in 1947. Thus, in enacting
8(a)(3), the 1947 Congress, unlike the 1951 Congress, was not making inroads on a policy
of full freedom of choice in order to provide "a specific response," id., at
751, to a particular problem facing unions. Rather, the 1947 amendments to 8(a)(3) were
designed to make an inroad into a pre-existing policy of the absolute freedom of private
parties under federal law to negotiate union-security agreements. It was a
"limited" inroad, responding to carefully defined abuses that Congress concluded
had arisen in the union-security agreements permitted by the Wagner Act. The 1947 Congress
did not enact 8(a)(3) for the "same purpose" as did the 1951 Congress in
enacting 2, Eleventh. Therefore, contrary to the Court's conclusion, ante, at 762, the
latter purpose, "eliminating `free riders,'" does not dictate our construction
of 8(a)(3), regardless of its impact on our construction of 2, Eleventh.
In order to overcome this inevitable conclusion, the Court relies on remarks made
by a few Members of the Congress in enacting the 1951 amendments to 2, Eleventh of the
RLA, which the Court contends show that the 1951 Congress viewed those amendments as
identical to the amendments that had been made to 8(a)(3) of the NLRA in 1947. See ante,
at 756; see also ante, at 746, and n. 4. But even assuming the Court's view of the
legislative history of 2, Eleventh [487
U.S. 735, 779] is correct (and the legislative materials do not obviously
impart the message the Court receives14), it does not
provide support for the Court's strained reading of 8(a)(3). Its only possible relevance
in this case is to evidence the 1951 Congress' understanding of a statute that particular
Congress did not enact. The relevant question here, however, is what the 1947 Congress
intended by the statute that it enacted. "[I]t is well settled that `"the views
of a subsequent Congress form a hazardous basis for inferring the intent of an earlier
one."'" Russello v. United States, 464
U.S. 16, 26 (1983), quoting Jefferson County Pharmaceutical Assn. v. Abbott
Laboratories, 460
U.S. 150, 165, n. 27 (1983), in turn quoting United States v. Price, 361
U.S. 304, 313 (1960). See also United States v. Clark, 445
U.S. 23, 33, n. 9 (1980). It [487
U.S. 735, 780] would "surely come as a surprise" to the
legislators who enacted 8(a)(3) to learn that, in discerning their intent, the Court
listens not to their voices, but to those of a later Congress. Ante, at 756. Unlike the
majority, I am unwilling to put the 1951 legislators' words into the 1947 legislators'
mouths.
The relevant sources for gleaning the 1947 Congress' intent are the plain language
of 8(a)(3), and, at least to the extent that it might reflect a clear intention contrary
to the plain meaning of the statute, the legislative history of 8(a)(3). Those sources
show that the 1947 Congress did not intend 8(a)(3) to have the same meaning the Court has
attributed to 2, Eleventh of the RLA. I therefore must disagree with the majority's
assertion that the Court's decision in Street is "controlling" here. See ante,
at 745.
III
In sum, I conclude that, in enacting 8(a)(3) of the NLRA, Congress did not intend
to prohibit union-security agreements that require the tender of full union dues and
standard union initiation fees from nonmember employees, without regard to how the union
expends the funds so collected. In finding controlling weight in this Court's
interpretation of 2, Eleventh of the RLA to reach a contrary conclusion, the Court has not
only eschewed our well-established methods of statutory construction, but also interpreted
the terms of 8(a)(3) in a manner inconsistent with the congressional purpose clearly
expressed in the statutory language and amply documented in the legislative history. I
dissent.
[Footnote 1] Like the majority, I do not reach the
First Amendment issue raised below by respondents, and therefore similarly do not address
whether a union's exercise of rights pursuant to 8(a)(3) involves state action. See ante,
at 761.
[Footnote 2] Section 8(b)(2) makes it unlawful for a
union "to cause or attempt to cause an employer" to violate 8(a)(3). 29 U.S.C.
158(b)(2).
[Footnote 3] The Taft-Hartley Act also amended the
first proviso to prohibit the application of a union-security agreement to an individual
until he has been employed for 30 days. See 29 U.S.C. 158(a)(3).
[Footnote 4] This reading, of course, flows from the
fact that "membership" as used in the first proviso, means not actual membership
in the union, but rather "the payment of initiation fees and monthly dues." NLRB
v. General Motors Corp., 373
U.S. 734, 742 (1963).
[Footnote 5] See, e. g., In re Union Starch &
Refining Co., 87 N. L. R. B. 779, (1949), enf'd, 186 F.2d 1008 (CA7), cert. denied, 342
U.S. 815 (1951); Detroit Mailers Union No. 40, 192 N. L. R. B. 951, 951-952 (1971). In
Detroit Mailers, the Board explained:
"Neither on its face nor in the congressional purpose behind [ 8(a)(3)] can
any warrant be found for making any distinction here between dues which may be allocated
for collective-bargaining purposes and those earmarked for institutional expenses of the
union. . . . `[D]ues collected from members may be used for a variety of purposes, in
addition to meeting the union's costs of collective bargaining.' Unions `rather typically'
use their membership dues `to do those things which the members authorized the union to do
in their interest and on their behalf.' By virtue of Section [487 U.S. 735, 767] 8(a)(3), such dues may be
required from an employee under a union-security contract so long as they are periodic and
uniformly required and are not devoted to a purpose which would make their mandatory
extraction otherwise inimical to public policy." Id., at 952, quoting Retail Clerks
v. Schermerhorn, 373
U.S., at 753-754 (internal quotations omitted).
The United States, appearing here as amicus curiae, maintains that position in
this case.
Contrary to the Court's suggestion, the NLRB has not embraced and then
"repudiated" the view that, for purposes of 8(a)(3), "periodic dues and
initiation fees" mean only "those fees necessary to finance
collective-bargaining activities." Ante, at 752, n. 7. Teamsters Local No. 959, 167
N. L. R. B. 1042 (1967), does not demonstrate otherwise. In Teamsters Local, the NLRB held
that "working dues" designated to fund a union building program and a credit
union were actually "assessments" not contemplated by the proviso to 8(a)(3).
Id., at 1044. The Board found that the union itself regarded the levy as a "temporary
assessment," clearly distinct from its "regular dues." Ibid. Moreover,
because the financing for the programs was constructed in such a way that the union
treasury might never have received 90% of the moneys, the Board concluded that the
"working dues" were actually "special purposes funds," and that
"the support of such funds cannot come from `periodic dues' as that term is used in
8(a)(3)." Ibid. In Detroit Mailers, the NLRB distinguished such assessments from
"periodic and uniformly required" dues, which, in its view, a union is not
precluded from demanding of nonmembers pursuant to 8(a)(3). 192 N. L. R. B., at 952.
While the majority credits an interpretation of Teamsters Local propounded by a
dissenting member of the Board in Detroit Mailers, ante, at 752-753, n. 7, I prefer to
take the Board's word at face value: Teamsters Local did not create "controlling
precedent" endorsing the view of 8(a)(3) enunciated by the Court today. 192 N. L. R.
B., at 952. Significantly, the majority cannot cite one case in which the Board has held
that uniformly required, periodic dues used for purposes other than "collective
bargaining" are not dues within the meaning of 8(a)(3).
[Footnote 6] The Court's insistence that it has not
changed the meaning of the term "uniform," see ante, at 753, n. 8, misses the
point. The uniformity requirement obviously requires that the union can collect from
nonmembers under a union-security agreement only those "periodic dues and initiation
fees" collected equally from its members. But this begs the question: what
"periodic dues and initiation fees"? It is the meaning of those terms which the
Court misconceives.
Under our settled doctrines of statutory construction, were there any ambiguity in
the meaning of 8(a)(3) - which there is not - the Court would be constrained to defer to
the interpretation of the NLRB, unless the agency's construction were contrary to the
clear intent of Congress. Chevron U.S. A. Inc. v. National Resources Defense Council,
Inc., 467
U.S. 837, 842-843, and n. 9 (1984). Although the Court apparently finds such
ambiguity, it fails to apply this doctrine. By reference to a narrow view of congressional
"purpose" gleaned from isolated statements in the legislative history, and in
reliance upon this Court's interpretation of another statute, the Court constructs an
interpretation that not only finds no support in the statutory language or legislative
history of 8(a)(3), but also contradicts the Board's settled interpretation of the
statutory provision. The Court previously has directed: "Where the Board's
construction of the Act is reasonable, it should not be rejected `merely because the
courts might prefer another view of the statute.'" Pattern Makers v. NLRB, 473
U.S. 95, 114 (1985), quoting Ford Motor Co. v. NLRB, 441
U.S. 488, 497 (1979). Here, the only apparent motivation for holding that the Board's
interpretation of 8(a)(3) is impermissible, is the Court's view of another statute.
[Footnote 7] The Court's answer to the absolute lack
of evidence that Congress intended to regulate such expenditures is no answer at all: the
Court simply reiterates that in Machinists v. Street, 367
U.S. 740 (1961), it did not give weight to congressional silence in the RLA on this
issue. See ante, at 760. The point, however, is not that the Court should give weight to
Congress' silence in the NLRA; the point is that the Court must find some support in the
NLRA for its proposition. Congress' silence simply highlights that there is no support for
the Court's interpretation of the 1947 Congress' intent.
[Footnote 8] See also, e. g., 93 Cong. Rec. 3837
(1947), Leg. Hist. 1010 (remarks of Sen. Taft) ("[B]ecause the union shop has been in
force in many industries for so many years . . . to upset it today probably would destroy
relationships of long standing and probably would bring on more strikes than it would
cure").
Despite a legislative history rife with unequivocal statements to the contrary,
the Court concludes that the 1947 Congress did not set out to restrict union-security
agreements in a "limited fashion." Ante, at 755. Quite apart from the Court's
unorthodox reliance on representations of those opposed to the Taft-Hartley amendments,
the majority's observation that "Congress viewed the Wagner Act's regime of
compulsory unionism as seriously flawed," ibid., begs the question. The perceived
flaws were embedded in the closed-shop system, not the union-shop system. Thus, as is
characteristic of the majority's opinion, its comparison to the RLA, under which there was
no closed-shop system, is beside the point. See ibid. Congress was aware that under the
NLRA, "the one system [the closed shop] ha[d] led to very serious abuses and the
other system [the union shop] ha[d] not led to such serious abuses." 93 Cong. Rec.
4886 (1947), Leg. Hist. 1421 (remarks of Sen. Taft). Accordingly, Congress banned closed
shops altogether, but it made only limited inroads on the union-shop system that had been
in effect prior to 1947, carefully describing its limitations on such agreements. H. R.
Rep. No. 245, 80th Cong., [487 U.S.
735, 772] 1st Sess., 9 (1947), Leg. Hist. 300; S. Rep., at 6-7, Leg. Hist.
412-413. It could not be clearer from the legislative history that in enacting the
provisos to 8(a)(3), Congress attempted to deal only with specific abuses in the
union-shop system, only the "actual problems that ha[d] arisen." 93 Cong. Rec.
4886 (1947), Leg. Hist. 1421 (remarks of Sen. Taft); accord, 93 Cong. Rec. 3836-3837
(1947), Leg. Hist. 1010-1011 (remarks of Sen. Taft). Congress' philosophy was that it had
"to decree either an open shop or an open union. [It] decreed an open union . . .
[which would] permit the continuation of existing relationships, and [would] not violently
tear apart a great many long-existing relationships and make trouble in the labor
movement; any yet at the same time it [would] meet the abuses which exist." 93 Cong.
Rec. 4886 (1947), Leg. Hist. 1420 (remarks of Sen. Taft). Union-security agreements
requiring the payment of uniform periodic dues and standard initiation fees were not among
the specified abuses. There was no testimony regarding problems arising from such
arrangements. Indeed, the subtext of the entire debate was that such arrangements were
acceptable. The Court's suggestion to the contrary is simply untenable.
[Footnote 9] The Senate Report explained: Congress
"did not desire to limit the labor organization with respect to either its selection
of membership or expulsion therefrom. But [it] did wish to protect the employee in his job
if unreasonably expelled or denied membership. The tests provided by the amendment are
based upon facts readily ascertainable and do not require the employer to inquire into the
internal affairs of the union." S. Rep., at 20, Leg. Hist. 426.
[Footnote 10] The Court appears to believe that
Congress intended 8(a)(3) to protect the interests of individual nonmembers in the uses to
which the union puts their moneys. See ante, at 759. It could not be clearer, however,
that Congress did not have this in mind at all. As Senator Taft explained to his colleague
who complained that requiring a man to join a union he does not wish to join (pursuant to
8(a)(3)) was no less restrictive than a closed shop: in enacting 8(a)(3), Congress was not
trying "to go into the broader fields of the rights of particular persons." 93
Cong. Rec. 4886 (1947), Leg. Hist. 1421.
The only "rights" protected by the 8(a)(3) provisos are workers'
employment rights. As the legislative debates reflect, Congress was principally concerned
with insulating workers' jobs from capricious actions by union leaders. "The purpose
of the union unfair labor practice provisions added to 8(a)(3) was to `preven[t] the union
from inducing the employer to use the emoluments of the job to enforce the union's
rules.'" Pattern Makers v. NLRB, 473
U.S., at 126 (dissenting opinion), quoting Scofield v. NLRB, 394
U.S. 423, 429 (1969).
[Footnote 11] Congress placed only one limitation on
the uses which can be made of union dues. "[W]ith little apparent discussion or
opposition," the Senate [487 U.S.
735, 775] conferees adopted the House bill's prohibition limiting what
unions may spend from dues money on federal elections. Pipefitters v. United States, 407
U.S. 385, 405 (1972). In 304 of the Labor Management Relations (Taft-Hartley) Act, 61
Stat. 159-160, which is now incorporated in the Federal Election Campaign Act of 1976, 90
Stat. 490, 2 U.S.C. 441b(a), Congress made it unlawful for a union "to make a
contribution or expenditure in connection with" certain political elections,
primaries, or political conventions.
The Senate conferees also agreed with the House that some safeguard was needed to
prevent unions from charging new members exorbitant initiation fees that effectively
"close" the union, thereby "frustrat[ing] the intent of [ 8(a)(3)]."
93 Cong. Rec. 6443 (1947), Leg. Hist. 1540 (remarks of Sen. Taft). Hence, 8(b)(5) was
added to the final bill, which makes it an unfair labor practice for a union which has
negotiated a union-security agreement to require initiation fees that the NLRB "finds
excessive or discriminatory under all the circumstances." 29 U.S.C. 158(b)(5). The
Senate passed 8(b)(5) only after receiving assurances from Senator Taft that it would not
allow the NLRB to regulate union expenditures. See 93 Cong. Rec. 6859 (1947), Leg. Hist.
1623 (stressing that the provision "is limited to initiation fees and does not cover
dues").
[Footnote 12] "It was never the intention of
the [NLRA] . . . to preempt the field in this regard so as to deprive the States of their
powers to prevent compulsory unionism." H. R. Conf. Rep. 510, 80th Cong., 1st Sess.,
60 (1947), Leg. Hist. 564. Accordingly, Congress added 14(b) to the final bill, which, as
enacted, expressly preserves the authority of the States to regulate union-security
agreements, including the use of funds collected from employees pursuant to such an
agreement. See Retail Clerks v. Schermerhorn, 373
U.S., at 751-752. Many States in fact have imposed limitations on the union-security
agreements that are permitted in their jurisdictions. See 2 C. Morris, The Developing
Labor Law 1391-1392 (2d ed. 1983).
[Footnote 13] The dissent in the original panel
decision in this case appropriately observed: "If the legislative purposes behind
8(a)(3) and 2, Eleventh were identical, one would expect that [this] Court in Street would
have looked to the NLRA for guidance in interpreting 2, Eleventh. The Street opinion,
however, does not significantly rely on or discuss either the NLRA or 8(a)(3). Instead, it
focuses on the distinctive features of the railroad industry and the Railway Labor Act in
construing 2, Eleventh." 776 F.2d 1187, 1220 (CA4 1985).
[Footnote 14] The Court overstates the clarity of
what was said about 8(a)(3) when 2, Eleventh was amended in 1951. As the Court's
recitation of various statements reflects, the extent to which the 1951 Congress saw
itself engrafting onto the RLA terms identical, in all respects, to the terms of 8(a)(3)
is uncertain. See ante, at 746-747, n. 4. The remarks are only general comments about the
similarity of the NLRA union-security provisions, rather than explicit comparisons of
8(a)(3) with the provisions of the RLA. For example, Senator Taft explained: "In
effect, the bill inserts in the railway mediation law almost the exact provisions, so far
as they fit, of the Taft-Hartley law, so that the conditions regarding the union shop and
the check-off are carried into the relations between railroad unions and the
railroads." 96 Cong. Rec. 16267 (1950) (emphasis added). See also, e. g., H. R. Rep.
No. 2811, 81st Cong., 2d Sess., 4 (1950) ( 2, Eleventh allows agreements "of a
character" permitted in 8(a)(3)); 96 Cong. Rec. 17049 (1951) (remarks of Rep.
Beckworth) ( 2, Eleventh extends to railroads "a principle" embodied in
8(a)(3)). Especially when it is remembered that Congress was extending to unions in the
railroad industry the authority to enter into agreements for which they previously had no
authority, whereas the 1947 Congress had rescinded authorization for certain kinds of
union-security agreements, the import of these statements is ambiguous. To borrow a phrase
from the majority, I "think it far safer and far more appropriate to construe 8(a)(3)
in light of its" language and legislative history, "than by drawing inferences
from" ambiguous statements made by Members of a later Congress in enacting a
different statute. Ante, at 759. [487
U.S. 735, 781]
