William & Mary Bill of Rights Journal Volume 14 (2005-2006) Issue 4 Article 4 April 2006 A Clearing in the Forest: Infusing the Labor Union Dues Dispute With First Amendment Values Harry G. Hutchinson Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Harry G. Hutchinson, A Clearing in the Forest: Infusing the Labor Union Dues Dispute With First Amendment Values, 14 Wm. & Mary Bill Rts. J. 1309 (2006), https://scholarship.law.wm.edu/ wmborj/vol14/iss4/4 Copyright c 2006 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj A CLEARING IN THE FOREST: INFUSING THE LABOR UNION DUES DISPUTE WITH FIRST AMENDMENT VALUES Harry G. Hutchison* ABSTRACT This article deploys public choice theory and postmodem identity claims to develop a far-reaching understanding of the union dues dispute, which suggests that the burden of proof on the existence of and/or the possibility of an enduring union community should be placed on proponents of this view. While the postmodern project can be seen as an unsettled approach that is riven by coherency issues, not the least, its insistence on offering the good without the true, it supplies modest benefits by revealing the conceivably infinite varieties of human preferences in contemporary America. The absence of preference convergence, understood from the perspective of both public choice theory and postmodern identity construal, vitiates prevalent assertions that unions operate as a paradigm of voluntary cooperation characterized by solidarity. The conflict between putative solidarity and the actual presence of preference diver- sity might well be the genesis of this ongoing dispute. Secondly, I both consider and differ with the Ninth Circuit's recent holding in United Food and Commercial Workers v. NLRB, which enforced an NLRB order re- quiring dues objectors to fund union organizing expenses despite a largely contrary holding by the Supreme Court in Ellis v. Railway Clerks. I expose the Ninth Circuit's opinion to a wide-ranging perspective on both First Amendment values and free- rider issues. Conventional analysis suggests that union organizing expenses, on their face, do not provide evidence of either a political or an ideological purpose, if, of course, ideologically grounded objections to collective bargaining are overlooked. Even so, a conventional analyst must concede that the legitimacy of the implication of First Amendment norms is both contingent and contextual. It is contingent on the actual purpose that organizing and consequent union revenue augmentation can be seen to serve. It is contextual in the sense that organizing can be linked to an ongoing effort to stem the degeneration in union economic power and the fear that the cur- rently substantial political influence of unions will diminish in the future. * Visiting Professor of Law, George Mason University School of Law; Professor of Law, Wayne State University Law School. For helpful comments on earlier drafts, I am grateful to Elizabeth McKay, Charles Baird, Kingsley Browne, Byron Cooper, Ross Davies, John Dolan, Leon Lysaght, Morgan Reynolds, James Ross, Ronald Rotunda, Linda Shin, Stephen Spurr, and Todd Zywicki. The usual disclaimer applies. This article was sharpened by the opportunity to reconsider my research during my stay at the McLeod Ranch. Many thanks to the Michael and Rona Pay Trust for this opportunity. © Harry G. Hutchison 1309 1310 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 14:1309 This examination endangers the Ninth Circuit's conclusion that union expen- ditures aimed at organizing competing firms can be seen as germane within the meaning of the NLRA. I intend to show that union expenditures, such as organiz- ing, that do not embrace an explicitly political purpose can nevertheless diminish the interest of workers in freedom of expression, freedom of association, and a variety of other interests that allow individual workers and subgroups of workers to define their own identities in what has become a pluralistic society. Lastly, I supply a number of proposals for clarifying judicial, NLRB, and scholarly analysis associated with the intensely fought debate over union dues. These proposals offer a clearing in a dense forest that has obscured the necessity of establishing a causal connection between contested union expenses, such as union organizing, and an actual, as opposed to an attenuated, collective bargaining purpose. TABLE OF CONTENTS INTRODUCTION ............................................... 1311 I. PRELIMINARY OBSERVATIONS ON THE PROSPECT OF FINDING A DURABLE UNION COMMUNITY IN THE FOREST .................................. 1319 II. SOLIDARITY CLAIMS AND THE ABSENCE OF PREFERENCE CONVERGENCE. 1331 A. Solidarity in the Mirrorof Postmodernism ..................... 1331 B. The Public Choice View .................................. 1339 C. Implicationsfor Labor Unions ............................. 1342 Im1. UNION ORGANIZING: GERMANE OR NONGERMANE? AN ANALYSIS OF THE UNITED FOOD CASE ......................................... 1348 A. The United Food Case ..................................... 1351 1. The NLRB Opinion .................................. 1352 2. A Dissenting View ................................... 1354 3. The Ninth Circuit's United Food Opinion ................. 1357 a. The initial decision ................................ 1358 b. The Ninth Circuit en banc: an invitation accepted ....... 1359 B. Analysis ............................................... 1365 1. Statutory Equivalence or Statutory Ambiguity? ............. 1366 2. The Constitutional Question in the Mirror of Forced Riding ... 1373 a. Expanding boundaries: finding communicative content in union organizing ...................................... 1377 b. Burdeningfreedom of expression ..................... 1384 IV. A CLEARING IN THE FOREST ................................... 1394 A. Prevent Information Asymmetry ............................ 1395 B. Ensure that Dues Objectors Have the Right, Coupled With Incentives, to Bring Their Claims in FederalDistrict Court .................. 1398 C. Infuse the Union Dues Dispute With FirstAmendment Values ..... 1399 CONCLUSION ............................................... 1400 2006] A CLEARING IN THE FOREST 1311 INTRODUCTION We find ourselves in a society that is waiting, but does not know what it is waiting for. "The feeling of being locked in implies the dream of liberation and implies, too, the suspicion of something hidden beyond the confines of daily life, however adequate daily life is claimed to be."' Americans live in a society in which individuals increasingly populate a variety of groups while waiting, ineffably, for something. Equally likely, people, individu- ally and collectively, look for some form (among many possible forms) of liberation. In such a society, human choice (both individually and collectively) may be seen as a vehicle to find meaning in a life that seems to confront endless possibilities. If Chantal Delsol's bracing intuition is correct, it is probable that any contemporary evaluation of labor unions dues and union security agreements 2 as the primary costs of union membership, raises unavoidable questions about the nature of autonomy, individual as opposed to group motivation, and uncertainty about the goals that unions, like other groups, endeavor and ought to pursue. Inevitably, self-interest, preferences, the boundaries of consent, and the benefits and costs of collective action are arranged against the possibility that "a broad definition of unions' societal function... require[s] ... limiting individual rights"3 and choices. Such issues unavoidably fuse politics, economics, and First Amendment norms. These issues become ever more poignant ' CHANTAL DELSOL, ICARuS FALLEN: THE SEARCH FOR MEANING IN AN UNCERTAIN WORLD xxvii (2003). 2 Union security agreements are contracts between a union and an employer in which the employer requires all employees to undertake some specified level of support for the union as a condition of employment. Union security agreements are not unlawful on their face, nor does a union breach its duty of fair representation when it negotiates a union-security provision that tracks the language of section 8(a)(3) of the National Labor Relations Act of 1935 (NLRA), 29 U.S.C. § 158(a)(3) (1935) (amended 1947) (2000), without explaining the Supreme Court's interpretation of the language in Communications Workers of America v. Beck, 487 U.S. 735 (1988). See, e.g., Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 36 (1998). Pursuant to the National Labor Relations Board's (NLRB) decisions in CaliforniaSaw & Knife Works, 320 N.L.R.B. 224 (1995), and United PaperworkersInt'l Union (Weyerhauser Paper Co.), 320 N.L.R.B. 349 (1995), [a] union violate[s] its duty of fair representation by failing, when seeking to obligate employees to pay fees and dues under a union-security clause, to notify bargaining unit employees who were not union members that they had the right under Beck to limit payment of their union-security dues and initiation fees to moneys spent on activities germane to their union's role as a [section] 9(a) bargaining representative. Teamsters Local 75 (Schreiber Foods), 329 N.L.R.B. 28,29 (1999). The NLRB extended notifi- cation rights to union members as well as nonmember unit employees. See United Paperworkers Int'l Union (Weyerhaeuser