Academic journal article Texas Law Review

The Constitutionality of Requiring Annual Renewal of Union Fee Objections in an Agency Shop

Academic journal article Texas Law Review

The Constitutionality of Requiring Annual Renewal of Union Fee Objections in an Agency Shop

Article excerpt

The Constitutionality of Requiring Annual Renewal of Union Fee Objections in an Agency Shops

I. Introduction

The fundamental question addressed by any government is how rights will be divided between the individual and the group.' In a tyranny, one individual controls the group.z In a pure democracy, individual rights are subordinated to the will of the group.3 Our constitutional system of government strikes a balance between the individual and the group. Generally, the will of the majority, expressed through its elected representatives, prevails.4 However, in order to prevent a "tyranny of the majority, "5 individuals are guaranteed certain freedoms under the Bill of Rights.b This Note examines two such freedoms-the First Amendment rights to free speech and association -in the labor context. In the labor circuits have split over the necessity of an additional safeguard-the right of objecting employees to be free from overly burdensome objection requirements. This Note focuses on the annual objection requirement under which an employee must renew his objection in writing each year. `15

A split has arisen, placing the Fifth Circuit`16 at odds with the Sixth" and D.C.'8 Circuits over whether a union in an agency shop may require union fee objectors to renew their objections annually. This Note addresses the issues presented by the current split and concludes that the Fifth Circuit approach invalidating annual objection requirements is mandated by the First Amendment.

Part II provides an introduction to the law of the agency shop. Subpart II(A) introduces general concepts and definitions in the area.'9 Subpart II(B) provides an overview of the Supreme Court's decisions in the agency shop arena.' Subpart II(C) supplies the holdings and rationales from the courts that have addressed the constitutionality of annual objection requirements.21

Part III analyzes the issues presented by the circuit split, concluding that the Fifth Circuit approach is correct. Subpart III(A) outlines the constitutional questions posed by the imposition of the agency shop and questions the standard of review that has been applied in the fee objection context.22 Subpart III(B) concludes that the Fifth Circuit standard is the appropriate standard based on the resolution of these constitutional questions set out in subpart III(A).23 in Subparts III(A B) to the constitutionality of annual objection requirements and concludes that they must be held unconstitutional for several reasons: (I) Otherwise, the Court could find itself on a slippery slope leading to the near complete loss of workers' free speech rights' and, in addition, any other holding would raise serious questions regarding the right to association. (2) Analogies to presumptions in decertification and deauthorization elections compel that result.26 (3) This resolution provides benefits to all the parties involved.27 Part IV reemphasizes the significance of this conflict both to the individual workers who will be affected by its resolution and to the continued robustness of First Amendment protection generally.

II. Background

A. An Overview of Union Security Arrangements

Historically, three types of union security agreements 28 have been utilized. A closed shop is a place of employment in which the employer has agreed to hire and retain only union members.29 Both the National Labor Relations Act (NLRA)30 and the Railway Labor Act (RLA)31 outlawed closed shops because of concerns that unions were abusing such arrangements in order to get rid of dissenters and that such arrangements gave the unions control over entire segments of the workforce.32 In a union shop, the prospective employee need not be a member of the union to be hired, but he must join the union within a specified period or lose his job.33 Under current law, union membership in a union shop may only be conditioned on the payment of dues. Finally, under an agency shop agreement, the employee is not required to become a formal member of the union, but he must pay union dues. …

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