Kidwell v. Transportation Communications Intern. Union, No. 86

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN; MURNAGHAN
• Citation: 946 F.2d 283
• Parties: 138 L.R.R.M. (BNA) 2537, 60 USLW 2230, 120 Lab.Cas. P 10,941 Kathryn A. KIDWELL, Michael S. Coffman, Helen Eades, Ramona J. Ellis, Plaintiffs-Appellees, v. TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION; Transportation Communications International Union, ConRail System Board of Adjustmentransportation Communications International Union, Seaboard System Board of Adjustmentefendants-Appellants. Kathryn A. KIDWELL, Michael S. Coffman, Helen Eades, Ramona J. Ellis, Plaintiffs-Appellants, v. TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION; Transportation Communications International Union, ConRail System Board of Adjustmentransportation Communications International Union, Seaboard System Board of Adjustmentefendants-Appellees.
• Decision Date: 28 October 1991
• Docket Number: T,Nos. 90-2511,D,90-2512,No. 86,No. 3

Page 283

946 F.2d 283 138 L.R.R.M. (BNA) 2537, 60 USLW 2230,
120 Lab.Cas. P 10,941 Kathryn A. KIDWELL, Michael S. Coffman, Helen Eades, Ramona
J. Ellis, Plaintiffs-Appellees,
v.
TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION;
Transportation Communications International Union, ConRail
System Board of Adjustment No. 86, Transportation
Communications International Union, Seaboard System Board of
Adjustment No. 3, Defendants-Appellants.
Kathryn A. KIDWELL, Michael S. Coffman, Helen Eades, Ramona
J. Ellis, Plaintiffs-Appellants,
v.
TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION;
Transportation Communications International Union, ConRail
System Board of Adjustment No. 86, Transportation
Communications International Union, Seaboard System Board of
Adjustment No. 3, Defendants-Appellees. Nos. 90-2511, 90-2512. United States Court of Appeals,
Fourth Circuit. Argued July 8, 1991.
Decided Oct. 3, 1991.
As Amended Oct. 28, 1991.

Page 284

Laurence Gold, Washington, D.C., argued (Mitchell Kraus, Rockville, Md., James Coppess, Washington, D.C., Marshal S. Berzon, San Francisco, Cal., on brief), for defendants-appellants.

Milton Leroy Chappell, National Right to Work Legal Defense Foundation, Inc., Springfield, Va., argued, for appellees.

Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

OPINION

MURNAGHAN, Circuit Judge:

An employee who wishes to remain a union member but desires to contribute financially only to the aspects of union

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activities related to collective bargaining sued the union whose rules prohibited such limited membership. Several nonmember employees also sued, claiming that the union was spending their mandatory payments on activities unrelated to collective bargaining. On cross motions for summary judgment, the district court judge granted summary judgment to the union member. He reasoned that forcing employees to choose between union membership, which provided possible participation in decisions relating to employment, and nonmembership, which required no financial responsibility for or contribution to the costs of the political and ideological activities of the union, violated statutory and first amendment rights. The judge denied the nonmember employees' motion for class certification and their specific objections on the merits or found them moot. Both parties appealed. We reverse the district court's conclusion as to the right of a union member in an agency shop to pay less than full dues but affirm its disposition of the remaining issues.

I.

Four railroad employees sued the Transportation Communications International Union ("the union"). ¹ The union is the collective bargaining representative for the employees under the Railway Labor Act ("RLA"), 45 U.S.C. § 152. One of the plaintiffs, Kathryn A. Kidwell, is a member of the union. The other three plaintiffs, Michael S. Coffman, Helen Eades, and Ramona J. Ellis, are not. ²

Union security provisions in the collective bargaining agreement require that all employees pay an agency fee, comprising the dues, initiation fees, and assessments of union members. As part of the agency shop relationship, the employees are required, as a condition of employment, to pay the agency fee to the union that is voted the collective bargaining representative; however, they are not required to become union members. Agency shops differ from union shops in that regard because in a union shop, each employee technically becomes a union member. Because of a line of Supreme Court decisions discussed below, the union voted collective bargaining representative in an agency shop may arrange to collect the costs of collective bargaining from all employees, but may not compel objecting nonmember employees to pay for union activities other than those related to collective bargaining. The union thus must have an objection procedure with respect to noncollective bargaining activities available to nonmembers.

For example, under the union's current procedure, in each calendar year, for thirty days after receiving an April notice, nonmember employees may object to the expenditure of their fees on activities unrelated to collective bargaining. An objector's agency fee then will be reduced by a set percentage. The union has an independent legal expert decide which activities are chargeable and which are not, and a certified public accountant prepares the accompanying accounting materials. The union's newspaper publishes the breakdown between chargeable and nonchargeable expenses. An objector who disagrees with the amount of fee reduction may challenge it before a neutral arbitrator. The union holds all of the objector's fee payment in an interest-bearing escrow account pending the decision. The union pays all costs of the arbitration.

The plaintiffs' initial complaint requested declaratory, monetary and injunctive relief on the grounds that the union's method for collecting and reducing dues for members and nonmembers lacked procedural safeguards and that the amount of required fees exceeded that constitutionally and statutorily permitted. In particular, the plaintiffs alleged violations of the First Amendment and § 2, Eleventh of the RLA. When the suit was first filed, the union permitted both union member and nonmember employees to object to the payment of

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fees not germane to collective bargaining activities. The union apparently allowed objections by members to reduce the incentive to resign. In May 1988, however, the union changed its policies so that only nonmembers could object. The union offers two reasons for the change. First, the union argues that the change responded to the increased burden of processing each objection under procedures established in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). Second, the union alleges that losers in union elections were urging their supporters to object as a protest over the outcome of the election.

On cross motions for summary judgment, the district judge held that the union had to permit objecting union members to pay reduced dues. ³ The judge also held that the union's procedure for handling objections was permissible and refused to determine the actual amount of fees payable by objectors. He denied class certification of all past and future objectors; however, he certified the limited class of union members who either were not told of an opportunity to object or objected and were denied a reduction.

In the first part of the district court judge's opinion, he read Railway Employees' Dep't v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956) and International Ass'n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961) to hold that the RLA did not authorize unions to spend money on political causes over the objection of employees. He then read later cases--Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) and Ellis v. Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984)--to conclude that the prohibition against these union expenditures also arose from the First Amendment. The judge emphasized that, if Kidwell were a nonmember of the union, she

can no longer vote on the representatives who are given the exclusive right to negotiate her terms of employment; she can no longer participate in the resolution of disputes over conditions of employment; and perhaps most significantly, she cannot vote on the terms and conditions of employment that the Union representatives negotiate and to which she will be subjected.... In short, at the risk of stating the choice too simplistically, she is given the option of protecting free speech or of protecting her vote on the continuation or conditions of work, but not both.

He noted that certain infringements on the First Amendment were bound up with the concept of collective bargaining. "When the union, however, strays from that charter given by the Railway Labor Act ... and uses dues to support candidates, religious beliefs, or any other ideological cause, it is not an answer to say to one who is opposed to those views, 'leave the union.' " He concluded that "in the context of governmental action that is imposed by the Railway Labor Act, the restriction on First Amendment freedoms must be drawn as narrowly as is consistent with the Congressional purpose in enacting the Railway Labor Act." Thus the judge found that Kidwell, though a union member, was entitled to a "reduction [in her union dues] attributable to all union expenses unrelated to collective bargaining." ⁴

In the second part of his opinion, the district court judge noted that since the case was filed, the Supreme Court had decided Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). He explained that the union had changed its procedures but that the plaintiffs challenged the pre-Hudson procedures

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as well as the newer ones. He concluded that Hudson could be retroactively applied to pre-1986 policies and examined the specific contentions. The only aspects that are raised on appeal involve particular objections from which the district court judge refrained because he concluded the arbitral process was the more proper avenue. The plaintiffs also have not appealed from the judge's conclusion that the procedures did not violate the union's duty of fair representation. The judge denied all damages, including the request for nominal $1.00 damages. And he denied a motion to amend the judgment to certify a class of all objectors, although he certified a smaller class relating to Kidwell's argument that members have a right to object.

Both sides appeal. The union contends that its requirement that employees either be members and, therefore, pay full dues, or be nonmembers with the right to object and seek reduction of noncollective bargaining expenditures, does not violate the Constitution or the RLA. Kidwell asserts that she has...