The union bears the burden of justifying contested expenditures.
The Court has also applied its general limitation on union dues collected from public
sector employees. Michigan citizens have been at the forefront of developing this law and
standing up for the exercise of their Constitutional rights.
Abood v Detroit Board of Education 26 is the first case
involving union security arrangements in government employment. In this case, Detroit
public school teachers who were opposed to public sector unionism challenged the
constitutionality of agency fee clauses and the use of the collected fees to finance
political and ideological causes. The agency shop clause in the collective bargaining
agreement was enforceable under Michigan state law, the Public Employee Relations Act
(PERA), which specifically authorized agency shop arrangements.
Relying on its prior decision in Street, the Court upheld the validity of the
state-authorized agency shop clause but additionally held that the First and Fourteenth
Amendments to the U.S. Constitution prohibited unions from using objecting employees
dues to finance political or ideological causes unrelated to collective bargaining. The
Court established the principle that the U.S. Constitutionnot a statute such as the
RLAbars public sector unions from imposing mandatory dues for political purposes
when a union member objects.
Chicago Teachers Union v Hudson 27 is the Supreme Court public
employee case which most thoroughly sets forth the constitutional requirements for union
reduced fee procedures in an agency shop.
First, nonmembers must be given adequate information about the basis for the
representation fee to enable them to know the propriety of the dues calculated prior to
the time for objection. 28 The Court reasoned that although the employee
retains the burden of objecting, the union keeps the burden of disclosure because of its
greater access to such information. 29 The Court acknowledged that while
"absolute precision" in the unions calculations was not practically
possible, it nevertheless found that this disclosure must include the identification of
"the major categories of expenses, as well as verification by an independent
Second, the procedure must place 100 % of the dissenters representation
fees in an interest-bearing escrow account unless the initial disclosure includes a
CPAs verification of expenses. If the fee schedule is verified by a CPA, the union
may place in escrow only that portion of expenditures which an objector could reasonably
challenge, and the union may retain the remainder. 31
Finally, the procedure must provide for a "reasonably prompt decision by an
impartial decisionmaker" to confirm the nature of the challenged union expenditures
and to guarantee that the dues have been used for permissible purposes. 32
The Court went on to rule that the internal procedures of the union were
constitutionally inadequate because all three steps of the review of challenges were fully
controlled by the union and its officials. 33 The union bears the burden
of justifying contested expenditures (those not clearly allocated to either collective
bargaining or ideological purposes) promptly and through an impartial decisionmaker. 34
The Court suggested that two procedures would satisfy this requirement: prompt judicial or
administrative review or an expeditious arbitration by a neutral arbitrator (not of the
unions unrestricted choice). 35
Despite the rulings in Abood and Hudson, the Court had to revisit the
subject of defining the limits to permissible union expenditures as recently as 1991 in Lehnert
v Ferris Faculty Association. 36 The Court in Lehnert held
that the public sector union representing faculty members could not charge objecting
dissenters for the costs of the unions lobbying efforts and political activities.
Despite the unions argument that the lobbying and political activities were aimed at
increasing public funding and support of teaching, the Court concluded that the First
Amendment precluded the union from charging dissenters for these practices because these
activities were too attenuated to justify compelled support.