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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No. 3:13-CV-2469-N

PLAINTIFFS’ BRIEF IN SUPPORT OF RESPONSE TO SUMMARY JUDGMENT MOTION OF DEFENDANT TRANSPORT WORKERS UNION

OF AMERICA, AFL-CIO, AND IN SUPPORT OF PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT

David E. Watkins Texas Bar No. 20922000 [email protected] Jason E. Winford Texas Bar No. 00788693 [email protected] JENKINS & WATKINS A Professional Corporation 2626 Cole Avenue, Suite 200 Dallas, Texas 75204-0817 Tel: 214-378-6675 Fax: 214-378-6680

Bruce N. Cameron (pro hac vice) [email protected] Milton L. Chappell (pro hac vice) [email protected] Glenn M. Taubman (pro hac vice) [email protected] Nathan J. McGrath (pro hac vice) [email protected] c/o National Right to Work Legal Defense Foundation, Inc. 8001 Braddock Road, Suite 600 Springfield, Virginia 22160 Tel: 703-321-8510 Fax: 703-321-9319

Attorneys for Plaintiffs and Class Members

JOSE SERNA, MARY RICHARDSON, ROBERTO CRUZ, SANTOS CORDERO, SARI MADERA, RALPH ANDERSON, WARREN LAMBERT, GREG HOFER, and KENT HAND, for themselves and the class they seek to represent, Plaintiffs, v. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Defendant.

Case 3:13-cv-02469-N Document 62 Filed 09/19/14 Page 1 of 57 PageID 1196

TABLE OF CONTENTS

i

PAGE

Table of Authorities ........................................................................................................................... iii

Introduction ......................................................................................................................................... 1

Statement of Undisputed Facts ......................................................................................................... 3

I. Composition of the Mandatory Financial Support ............................................................ 4

II. The Procedure for Collecting Mandatory Financial Support............................................ 5

A. First Default Decision Point ..................................................................................... 5

B. Second Default Decision Point ................................................................................ 8 III. What the Science of Behavioral Economics Reveals About the Union’s Policy ......... 10 Argument ............................................................................................................................................ 15

I. When Collecting Compelled Fees, Unions Must Minimize the Burden on Nonmembers’ Free Speech Rights ............................................................ 15

A. The Governing Legal Standards ............................................................................. 16

B. The First Amendment Does Not Permit the Union to Assume Nonmembers’ Consent to Its Political Activities ........................................... 17

1. Introduction .................................................................................................. 17

2. Knox supports clarification and reconsideration ...................................... 18

3. Harris supports clarification and reconsideration .................................... 19

C. Assuming “Consent” to Supporting Union Politics Is Only Appropriate for Union Members .................................................................................................. 20

D. Nonmembers Have Never Been Required to Object to Paying Political Fees ........................................................................................... 21

1. Nonmember only cases ............................................................................... 22


TABLE OF CONTENTS

i

PAGE 2. Mixed member and nonmember cases ..................................................... 25 E. The First Amendment Requires Opt In ................................................................ 27

F. The Law of Prior Restraint Requires Opt In ........................................................ 29 G. Privacy Rights Require Opt In ............................................................................... 30

II. The Workers’ Challenge to TWU’s “Annual Renewal” Requirement Is Not Moot ... 32

III. Unions Have No Authority to Force Loans from Nonmembers .................................. 37

IV. The Compulsory Union Fee Experiment Has Failed, Because It Is Incompatible with the First Amendment .................................................................... 40

A. Compulsory Union Fees Are an Experiment That Failed .................................. 40

B. Workplace Compulsion Defies Recent Legislative and Judicial Precedent ...... 42

C. Compulsory Union Fees Are an Undue Burden on Speech .............................. 44

D. Compulsory Union Fees Are a Prior Restraint on Speech ................................. 48

E. Compulsory Union Fees Constitute Speaker Discrimination ............................ 48

Conclusion .......................................................................................................................................... 49 Certificate of Service ......................................................................................................................... 50


TABLE OF AUTHORITIES

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CASES PAGE Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) ..................................................................... passim Abrams v. CWA, 59 F.3d 1373 (D.C. Cir. 1995) ............................................................................ 33 Albertson’s/Max Food Warehouse, 329 NLRB 410 (1999) ............................................................... 43 Beck v. CWA, 776 F.2d 1187 (1985), superseded, 800 F.2d 1280 (4th Cir. 1986), aff’d, 487 U.S. 735 (1988) ................................................................................. 47 Belhumeur v. Springfield Educ. Ass’n, 735 N.E.2d 860 (2000) .......................................................... 47 Board of Regents v. Southworth, 529 U.S. 217 (2000) ................................................................... 45, 46 Boos v. Barry, 485 U.S. 312 (1988) .................................................................................................... 16 Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ................................................................................ 18 Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986) ........................................ passim Citizens United v. FEC, 558 U.S. 310 (2010) ............................................................................. passim Covenant Aviation Sec., LLC, 349 NLRB 699 (2007) ...................................................................... 43 CWA v. Beck, 487 U.S. 735 (1988) ..................................................................................... 17, 18, 46 Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 (2007) .................................................................. 3, 26 Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73 (1st Cir. 2007) ..................................................... 31 Ellis v. Ry. Clerks, 466 U.S. 435 (1984) ...................................................................................... passim Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) .................................... 34 Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) ........................................... 29 Harris v. Quinn, ___ U.S. ___, 134 S. Ct. 2618 (2014) ............................................................ passim Hickinbotham Bros. Ltd., 254 NLRB 96 (1981) ................................................................................ 43 Knox v. Serv. Emps. Int’l Union, ___ U.S. ___, 132 S. Ct. 2277 (2012) ................................... passim



iv

CASES PAGE K. P. v. LeBlanc, 627 F.3d 115 (5th Cir. 2010) ................................................................................ 34 Lathrop v. Donohue, 367 U.S. 820 (1961) .......................................................................................... 20 Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991) .................................................................. 45, 47 Locke v. Karass, 555 U.S. 207 (2009) ................................................................................................ 45 Machinists v. Street, 367 U.S. 740 (1961) ..................................................................................... passim Machinists v. Street, 108 S.E.2d 796 (Ga. 1959) ................................................................................ 20 McIntyre v. Ohio Election Comm’n, 514 U.S. 334 (1995) ................................................................... 30 National Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974) ...................................................... 31 National Fed’n of Indep. Bus. v. Sebelius, __ U.S. __, 132 S. Ct. 2566 (2012) ................................. 41 National Steel & Shipbldg. Co., 324 NLRB 1031 (1997) ................................................................. 43 NLRB v. Granite State Joint Bd., 409 U.S. 213 (1972) ..................................................................... 21 Phelps Dodge Specialty Copper Prod. Co., 337 NLRB 455 (2002) ...................................................... 43 Prater v. United States Parole Comm’n, 575 F. Supp. 284 (S.D. Ind. 1983) ..................................... 30 Railway Clerks v. Allen, 373 U.S. 113 (1963) ....................................................................... 22, 25, 26 Railway Employes’ Dep’t v. Hanson, 351 U.S. 225 (1956) ........................................................... passim Retail Clerks v. Schermerhorn, 373 U.S. 746 (1963) ........................................................................... 17 Seay v. McDonnell Douglas Corp., 427 F.2d 996 (9th Cir. 1970) ...................................................... 38 Shea v. Int’l Ass’n of Machinists, 154 F.3d 508 (5th Cir. 1998) .................................................. passim Sierra Club v. Franklin Cty. Power of Ill., LLC, 546 F.3d 918 (7th Cir. 2008) ................................ 35 Sorrell v. IMS Health, Inc., __ U.S. __, 131 S. Ct. 2653 (2011) ............................................... 48, 49



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CASES PAGE Sosna v. Iowa, 419 U.S. 393 (1975) .................................................................................................... 36 Sossamon v. Lone Star State, 560 F.3d 316 (5th Cir. 2009) .............................................................. 34 Thomas v. Collins, 323 U.S. 516 (1945) ............................................................................................. 29 Tierney v. City of Toledo, 824 F.2d 1497 (6th Cir. 1987) ................................................................... 33 United States v. Enmons, 410 U.S. 396 (1973) ................................................................................... 31 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ............................................ 1, 44, 47 United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) .................. 35 United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980) ......................................................... 36 Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002) .......... 30, 48 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ................................................ 1, 29 CONSTITUTION U.S. Const. amend. 1................................................................................................................... passim STATUTORY AND RULE PROVISIONS National Labor Relations Act 29 U.S.C. § 159(e) ........................................................................................................................ 43 29 U.S.C. § 164(b) ........................................................................................................................ 42 Railway Labor Act 45 U.S.C. § 151 et seq.............................................................................................................. passim 45 U.S.C. § 152, Eleventh ............................................................................................................. 1



vi

OTHER AUTHORITIES PAGE Clyde W. Summers, Book Review, Freedom of Association: A Study in Labor Law and Political Theory, 16 Comp. Lab. L.J. 262 (1995) ........................................................... 43, 44 News Release, U.S. Dep’t of Labor, Bureau of Labor Statistics, Union Members—2013 (Jan. 24, 2014), http://www.bls.gov/news.release/pdf/union2.pdf .................................... 43 Richard H. Thaler & Cass R. Sunstein, Nudge (Penguin Books 2009) .......................... 10, 27, 31 Right to Work States, www.nrtw.org/rtws.htm ............................................................................ 42 Sunstein & Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. Chi. L. Rev. 1159 (2003) ................................................................................................... 27


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INTRODUCTION

Under the Railway Labor Act, 45 U.S.C. § 152, Eleventh, Congress allows employers

and labor unions to compel represented employees to join or financially support the union

as a condition of employment. In this case, Plaintiffs Jose Serna, Mary Richardson, Roberto

Cruz, Santos Cordero, Sari Madera, Ralph Anderson, Warren Lambert, Greg Hofer, and

Kent Hand (“Workers”) object to that compulsion in four ways.

The Workers’ arguments, based wholly upon the First Amendment, range from those

squarely supported by United States Supreme Court and Fifth Circuit precedent, to those

seeking change to the existing law. The arguments for a change in the law come in response

to recent Supreme Court decisions disclosing that a majority of the Court is willing to

reconsider decades old precedent in order to more carefully protect employees’ rights of free

speech and association. Knox v. Serv. Emps. Int’l Union, __ U.S. __, 132 S. Ct. 2277 (2012);

accord Harris v. Quinn, __ U.S. __, 134 S. Ct. 2618 (2014).

Notwithstanding Congress’ determination that compulsory unionism is permissible,

the Constitution restrains government from treading on its citizens’ political autonomy.

Government is barred from:

“taking the right to speak from some and giving it to others,” Citizens United v.

FEC, 558 U.S. 310, 340 (2010);

engaging in the “[c]ompulsory unification of opinion,” West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 640-41 (1943);

favoring or disfavoring certain points of view, see, e.g., United States v. Playboy

Entertainment Group, Inc., 529 U.S. 803, 813, 817-18 (2000); and,


2

enhancing the voice of some at the expense of others. Citizens United, 558 U.S. at

349-50.

The Supreme Court and the Fifth Circuit agree that when it comes to the subject

matter of this litigation, Defendant Transport Workers Union of America, AFL-CIO

(“Union” or “TWU”), is a governmental actor; and, therefore, the First Amendment directly

restrains the Union’s actions. Shea v. Int’l Ass’n of Machinists, 154 F.3d 508, 513 n.2 (5th Cir.

1998). Accord, Ellis v. Ry. Clerks, 466 U.S. 435, 455 (1984); Railway Employes’ Dep’t v. Hanson,

351 U.S. 225 (1956). Yet here, the Union is compromising the free speech and political

autonomy of the employees it represents in several significant ways.

First, the Union forces employees, on pain of discharge, to fund all of its activities

even though the Supreme Court recently questioned the constitutionality of such coercion.

Second, the Union makes it particularly challenging for employees to retain their own rights

of free speech and political autonomy by manipulating certain “defaults” so employees

automatically say “yes” to funding the Union’s political activities, whether or not they

actually want to. The Union has no legitimate claim to employees’ money it wants to use for

political activities, yet it sets the default so that this money automatically flows into its

coffers. Third, the Union has openly violated Fifth Circuit precedent by refusing to accept a

plainly stated “no” from employees to funding Union political activities. Rather, the Union

annually flips that “no” to “yes,” by requiring employees to “annually renew” their

objections to supporting Union politics or forfeit their moneys to the Union for an entire

year.


3

Only after the Workers filed this lawsuit did the Union abandon its annual renewal

requirement, but it did not make amends for its past wrongs. Even now, those employees

who successfully managed to object find themselves, contrary to Supreme Court precedent,

forced to make repeated and continuous temporary involuntary loans to the Union in the

same amount for which they said “no” to funding Union politics.

The Workers have determined, on behalf of themselves and a class of employees who

are not Union members, to stand against this violation of their free speech rights, political

autonomy and ideological independence. The Union paints the Workers’ stand as akin to

“residents of a town who want to avoid paying taxes,” Brief of Defendant Transport

Workers Union of America, AFL-CIO in Support of Its Summary Judgment Motion

(“Union Br.”) 1, ECF No. 55, but forgets that it is not the Workers’ sovereign. Rather, it is a

uniquely privileged, private entity abusing the extraordinary powers Congress granted to it

and no other organization or entity, powers which a majority of the Supreme Court now

wants to examine closely to determine if they pass constitutional muster. Knox, 132 S. Ct. at

2291, citing Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 184, 187 (2007) (“A union’s

collection of fees from nonmembers is authorized by an act of legislative grace, one that we

have termed unusual and extraordinary.”) (internal quotations and citations omitted).

STATEMENT OF UNDISPUTED FACTS

The Workers are employed by Envoy Air, Inc., formerly American Eagle Airlines,

Inc., as Fleet Service Clerks (Serna,1 Richardson, Cordero, and Madera) and a Fleet Service

Crew Chief (Cruz), and by Southwest Airlines Co., as Flight Attendants (Anderson, Lambert,

1 Jose Serna is no longer employed by Envoy Air, Inc.


4

Hofer, and Hand). Although the Fleet Service Workers are covered under a different

collective bargaining contract from the Flight Attendants, both contracts are with TWU local

affiliates and require the discharge of any employee who fails to join or financially support

the Union. Agreement Between Southwest Airlines Co. and the Flight Attendants in the

Serv. of Sw. Airlines Co. as Represented by the Transp. Workers Union of Am., AFL-CIO

(“Southwest CBA”) 133, Appendix (“App.”) at 157-58; Agreement Between Am. Eagle

Airlines and Exec. Airlines and Transp. Workers Union of Am., AFL-CIO (“Eagle CBA”)

91-93, App. at 146-48; Decl. of Jose Serna (“Serna Decl.”) ¶ 5, App. at 33; Decl. of Mary

Richardson (“Richardson Decl.”) ¶ 5, App. at 37; Decl. of Sari Madera (“Madera Decl.”) ¶ 5,

App. at 44; Decl. of Santos Cordero (“Cordero Decl.”) ¶ 5, App. at 47; Decl. of Roberto

Cruz (“Cruz Decl.”) ¶ 5, App. at 79; Decl. of Ralph Anderson (“Anderson Decl.”) ¶ 5, App.

at 84; Decl. of Greg Hofer (“Hofer Decl.”) ¶ 5, App. at 90; Decl. of Kent Hand (“Hand

Decl.”) ¶ 5, App. at 96; Decl. of Warren Lambert (“Lambert Decl.”) ¶ 5, App. at 100.

I. COMPOSITION OF THE MANDATORY FINANCIAL SUPPORT

Regular Union dues include money spent for collective bargaining and for political,

ideological, and other non-bargaining expenses, see TWU Express, Winter 2012, at 20-21,

App. at 72-73, the non-bargaining expenses that nonmembers cannot be forced to pay. Ellis,

466 U.S. at 457; Machinists v. Street, 367 U.S. 740, 769-70 (1961). For clarity and brevity, these

two broad and mutually exclusive categories of Union expenses here will be labeled

“bargaining” and “political.” The initial division between bargaining and political expenses is

made unilaterally by the Union, without prior notice to the Workers or an opportunity for


5

hearing. Transp. Workers Union of Am. Policy on Agency Fee Objections2 (“Policy”) ¶¶ 2,

4, 5, 7, App. at 73-74.

II. THE PROCEDURE FOR COLLECTING MANDATORY FINANCIAL SUPPORT

The Union has a policy for the collection and disposition of compulsory dues. See

Policy, App. at 23-26. That Policy is structured to create two “default” decision points for

employees, Policy ¶¶ 2, 3, App. at 23, both of which strongly slant the playing field to

TWU’s pecuniary and political advantage.

A. First Default Decision Point

The Union’s Policy requires every employee, including nonmembers of the Union, to

pay an amount equal to full membership dues, including the political portion, or lose his job.

Policy ¶ 2, App. at 23. Thus, under the Policy, the first “decision” point is, by default, that

every employee automatically is determined to have agreed to pay both the bargaining and

political portions of Union dues. See Policy ¶ 2, App. at 23. By structuring the default in this

way, TWU guarantees that the political portion of its dues flows automatically from the

employee’s pocket into the Union’s coffers unless the employee takes timely and affirmative

actions to stop the outflow. Policy ¶¶ 2, 3, App. at 23. How the employee stops the outflow

depends on whether he is a Union member or not. Policy ¶¶ 3, 3(a), App. at 23.

2 The Policy, the one TWU actually gives to the Workers and class members, which is published in TWU Express, is reproduced at App. 73-74, and filed in support of Workers’ Motion for Summary Judgment. As is discussed infra, TWU prints the Policy in tiny font that is barely legible. Cordero Decl. ¶¶ 9, 10, App. at 48; Hofer ¶ 7, App. at 90. For the convenience of the Court, and when not trying to highlight the illegibility of the Policy, Plaintiffs will direct the Court to an enlarged, artificially legible copy of the Policy, App. at 23-26. One Worker, Plaintiff Warren Lambert, wrote to the Union to tell it he needed a “magnifying glass” to read the Policy. Lambert Decl. ¶ 17 & Ex. 1, App. at 102-104.


6

If the employee is a Union member and does not want to support the Union’s politics,

he must take two actions: 1) he must first resign from the Union, Policy ¶ 3(a), App. at 23;

and 2) then this new nonmember must object to paying the political portion of the dues

within thirty days of his resignation, Policy ¶ 3(a), App. at 23. For either a Union member or

nonmember, perfecting that objection requires several additional steps, detailed below.

If a nonmember does not want to support the Union’s politics, he must object during a

Union-designated thirty-one day window period in January. Policy ¶ 3, App. at 23. Formerly,

until the Union reacted to this lawsuit by unilaterally changing its Policy, see Policy ¶ 3(b),

App. at 23, an employee’s initial designation of “no” was insufficient to totally stop the

taking of dues money for politics. Instead the Union required employees to “annually

renew” their objections, essentially converting their “no” back to “yes” each year. Compare

Policy on Agency Fee Objection ¶ 3(b), App. at 28 (the “old policy”) with Policy ¶ 3(b),

App. at 23 (the “new policy”).

In essence, an employee who disagrees with the default position—support of Union

politics—must chase after his money to get it back. Policy ¶¶ 2, 3, 3(a)-(b), App. at 23; Serna

Decl. ¶ 8, App. at 33-34; Richardson Decl. ¶¶ 11-13, App. 38-39; Cordero Decl. ¶ 17, App.

at 49; Cruz Decl. ¶ 11, App. at 80; Anderson Decl. ¶¶ 10, 14, 16, App. at 85-87; Hofer Decl.

¶¶ 12, 13, App. at 92; Lambert Decl. ¶ 16, App. at 102. In contrast to that chase, the Union

makes it easy for employees to pay the full dues amount by readily providing them a simple

“check off” form directing the full Union dues to be automatically deducted from their

salary. Cruz Decl. ¶ 11, App. at 80; Serna Decl. ¶ 8, App. at 33-34. The consequences of

signing the check off form is employees turn over to the Union the political portion of the


7

dues they rightfully own. Employees who then want to stop the outflow of their money for

politics must plan, draft, and mail or deliver individual written objection notices. Policy ¶ 3,

App. at 23; Cruz Decl. ¶ 11, App. at 80; Anderson Decl. ¶¶ 9, 10, 16, App. at 85, 87; Hofer

Decl. ¶¶ 12, 13, App. at 92; Cordero Decl. ¶¶ 16, 17, App. at 49; Lambert Decl. ¶¶ 11, 16,

App. at 101-02. The objection notice provides the Union with the nonmember’s home

address, and it must be signed by the nonmember before mailing. Policy ¶ 3, App. at 23.

Mailing the objection notice to the Union brings its own set of requirements. First, it

must be mailed to two separate entities: the Union and its local. Policy ¶ 3, App. at 23. The

nonmember must purchase at least two envelopes, research the name and addresses of the

Union and its local, make a copy of the notice, pay for sufficient postage to send both the

notice and copy to two separate addresses, and travel to the post office (or some other

posting place) to mail the notice and the copy. See Policy ¶ 3, App. at 23. If a nonmember

does not own a copier, making the additional copy requires additional time, travel, and

expense.

Additionally, the objection notice must be post marked to the Union’s International

Secretary Treasurer by the January deadline with a copy also sent to the local union. Policy ¶

3, App. at 23. Even if a nonmember employee precisely follows each of these steps, but pays

his dues through payroll deduction, the Union continues to extract the full dues payment,

including political expenses. Policy ¶ 8(b), App. at 25. Only many months later does it

“rebate” the non-chargeable portion, Policy ¶ 8(b), App. at 25; Hofer Decl. ¶ 12, App. at 92;

Anderson Decl. ¶ 17, App. at 87; Hand Decl. ¶¶ 7, 9, App. at 96-97; Lambert Decl. ¶¶ 11,

16, App. at 101-02, it should never have collected from the nonmember in the first place.


8

Each of the foregoing steps is required to change the default, stop the outflow of political

money, and recover the employee’s non-chargeable money, Policy ¶¶ 3, 3(a)-(b), 8, 8(a)-(c),

App. at 23, 25, to which the Union has no legitimate legal claim in the first place.

B. Second Default Decision Point

Toward the end of each year, the Union publishes in the closing pages of its

magazine, TWU Express, an “Independent Auditor’s Report” that includes a schedule

containing the Union’s division of its expenses between bargaining (what the union calls

“chargeable”) and political (“non-chargeable”) categories. TWU Express, supra pp. 20-21,

App. at 73-74. Following that schedule, in a font so small it challenges the reader, Cordero

Decl. ¶ 10, App. at 48; Hofer Decl. ¶ 7, App. at 90; Lambert Decl. ¶ 17 & Ex. 1, App. at 102,

104, the Union explains that nonmembers may initiate a challenge to contest its unilateral

division of bargaining and political expenses. TWU Express, supra pp. 21-22, App. at 73-74.

Unlike other information contained in the magazine, the TWU Express table of contents

contains no reference to the Independent Auditor’s Report or the challenge procedure.

TWU Express, supra p. 3, App. at 55. Nonmembers who might want to invoke the Policy

apparently are expected to stumble upon this information on their own, if at all. See Cruz

Decl. ¶ 8, App. at 79 (noting he had “never noticed the agency fee policy” in TWU Express

and had only found out about the ability to object because of a co-worker’s research efforts);

Anderson Decl. ¶ 8, App. at 84-85; Hofer Decl. ¶ 7, App. at 90; Cordero Decl. ¶¶ 8, 9, App.

at 47-48; Richardson Decl. ¶¶ 7, 8, App. at 37; Hand Decl. ¶ 6, App. at 96; Lambert Decl.

¶¶6-8, App. at 100.


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Unless a nonmember affirmatively makes an additional objection to initiate a

“challenge” to TWU’s unilateral calculation, the Union automatically assumes the

nonmember agrees with its determination of how the money is to be divided. See Policy ¶ 9,

App. at 25-26. Thus, the second default “decision” point is that nonmembers automatically

accept the Union’s unilateral, self-interested and ex parte calculation of the amount it spent

on bargaining expenses. See Policy ¶ 9, App. at 25-26; Chicago Teachers Union, Local No. 1 v.

Hudson, 475 U.S. 292, 310 (1986) (discussing procedures needed for “amounts [of union

dues] reasonably in dispute”). “And although Hudson required that a union’s books be

audited, auditors do not themselves review the correctness of a union’s categorization.”

Harris v. Quinn, 134 S. Ct. 2618, 2633 (2014), and cases cited therein.

This additional objection to challenge the Union’s calculation also must be timely

perfected under TWU’s Policy. Policy ¶ 9, App. at 25-26. Perfecting the “challenge”

objection requires overcoming procedural hurdles the Union unilaterally establishes. These

hurdles are described in ten paragraphs of instruction in the Policy. Policy ¶¶ 9, 9(a)-(i).3

While the Union claims as an “undisputed fact” that its Policy “establishes a simple

procedure” Union Br. 2, ECF No. 55, as demonstrated above, it is not “simple.” By setting

the default for nonmembers to “I automatically agree with the Union’s calculation,” the

Union defaults nonmembers into waiving any interest in the remaining money that is subject

to “reasonable dispute.”

3 If a nonmember had previously objected “during that calendar year,” TWU would send its Policy to the nonmember and the nonmember would not have to search for it. Policy ¶ 6, App. at 24. The Union’s suggestion in its Statement of Undisputed Fact that it independently sends its Policy to all nonmembers, Union Br. 7, ECF No. 55, is directly contradicted by the Policy statement that it only sends a copy of the Policy to those nonmembers who previously objected in the same year.


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In summary, the Union’s first default decision point allows it to automatically collect

political money from employees’ salaries without their actual consent or even their

knowledge. See Hand Decl. ¶¶ 8, 9, App. at 96-97; Hofer Decl. ¶¶ 10, 12, App. 91-92; Cruz

Decl. ¶ 12, App. at 80; Anderson Decl. ¶ 12, App. at 85-86; Cordero Decl. ¶ 19, App. at 50;

Richardson Decl. ¶ 12, App. at 38; Lambert Decl. ¶ 12, App. at 101. The second default

decision point waives employees’ interest in that portion of the fees to which both the

Union and the employees have an arguable legal claim and is in dispute.

III. WHAT THE SCIENCE OF BEHAVIORAL ECONOMICS REVEALS ABOUT THE UNION’S POLICY

Dr. John Balz served as the “lead researcher” for the authors of the New York Times

best-selling book Nudge,4 and he wrote initial drafts of some sections of the book for the

authors, Richard H. Thaler and Cass R. Sunstein. Decl. of John Balz (“Balz Decl.”) ¶ 4, App.

at 105. Nudge addresses behavioral economics, a science examining how people make

financial and other decisions. Specifically, Nudge looks at how structuring a choice (the book

uses the terminology “choice architecture”) strongly influences a person’s ultimate decisions.

Balz Decl. ¶¶ 1, 3-6, App. at 105-06. Choices can be framed in a manner designed to

influence a person’s decision in a preferred direction, while not completely foreclosing less

preferred choices. Thus, the framer of a choice can influence and determine the outcome to

his, her, or its favor. Balz Decl. ¶¶ 1, 15-42, App. at 105, 107-11.

4 Richard H. Thaler & Cass R. Sunstein, Nudge (Penguin Books 2009).


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A simple example of choice architecture is a school cafeteria’s decision to put certain

food items at eye level and other food at ankle level. Through the placement of food

options, the cafeteria structures the students’ choice to favor food placed at eye level.

Dr. Balz’s expert opinion is that the Union’s two default settings structure employee

choice in a way that greatly favors its own political and financial agenda, while disfavoring

and disadvantaging the Workers’ and other employees’ property rights, free speech and

political autonomy. Balz Decl. ¶¶ 15-42, App. at 107-11.

Dr. Balz identifies various ways TWU structures its Policy to transfer political money

from employees’ pockets into the Union’s coffers. First is the Union’s use of defaults. Balz

Decl. ¶¶ 19-42, App. at 108-11. If the initial default were set so employees would keep their

own money unless they decided otherwise and took action (i.e., opted in to support Union

politics), then the default would be aligned with the status quo: each party keeps its own

money and nothing changes hands without an affirmative response. However, by structuring

its Policy to automatically transfer money from employees to the Union at the first default

“decision” point, the Union causes the employees’ money to change hands, even though the

employees have done nothing to relinquish their money. Balz Decl. ¶¶ 19-23, App. at 108.

The Union structures the second default such that employees relinquish their legal

claim to money reasonably in dispute. Again, if the employee does nothing, the Union keeps

for itself all of the fees that both the Union and the employees have an arguable legal claim

to and are in dispute. See Policy ¶¶ 9, 9(a)(i), App. at 25-26.

As Dr. Balz explains, there exists a “Status Quo Bias,” which reflects the “human

tendency toward inertia or non-action.” Balz Decl. ¶ 21, App. at 108. Once individuals


12

choose to enroll in a program, they normally stick with that choice for long periods of time.

Balz Decl. ¶ 21, App. at 108. That is true even if individuals have been defaulted into that

choice. Balz Decl. ¶ 21, App. at 108.

A 2001 study cited by Dr. Balz found that when individuals were allowed to opt in to

a 401(k) retirement program, only 37.4 percent of recent retirees enrolled. In sharp contrast,

when the program was structured to automatically enroll individuals, and the individual was

required to opt out to avoid that choice, enrollment soared to 85.9 percent. Balz Decl. ¶ 22,

App. at 108. Those vastly different outcomes are not, according to Dr. Balz, indicative of

employees’ actual preferences, but are due to the manner in which the choices are structured.

Balz Decl. ¶ 23, App. at 108. Dr. Balz cites multiple studies that demonstrate the power of

structuring a decision through the use of a default. Balz Decl. ¶¶ 22-26, App. at 108-09.

Dr. Balz’s expert opinion concludes that the Union’s use of the two defaults

discussed above results in nonmembers’ money flowing to the Union for political purposes

not by a voluntary and knowing act, but by operation of the Union’s choice architecture

alone. In contrast, under an opt in structure, no money for political purposes would change

hands without a nonmember’s clear decision. Balz Decl. ¶¶ 28-29, App. at 109.

A “channel factor”—a barrier created or removed by those structuring the choice—is

the second way the Union’s choice architecture affects the rights of employees. Balz Decl. ¶¶

30-31, App. at 109. For example, Dr. Balz cites a Yale University study in which the school

wanted to encourage its students to get a tetanus shot. Students were given identical

information about the risks and benefits of the shot and were told where they could receive

the shot. However, one group of students was also given a map directing them to the


13

building where the shot was being administered. Providing this small additional piece of

information increased the inoculation rate from 3 percent to 28 percent. Balz Decl. ¶ 31,

App. at 109.

As Dr. Balz points out, the additional value of a map seems minimal to an outsider

because finding out where a building is located does not require a huge investment of time

or resources. But, this small factor proved significant, and not providing it inhibited

students’ chances of getting the shot. Balz Decl. ¶ 32, App. at 110.

The Union’s Policy contains many channel factors that deter nonmembers from

retaining both their own political money and their interest in the reasonably disputed fees.

Dr. Balz notes that in the case of letters and forms, lengthy text and confusing terms are

common channel factors. When channel factors are combined with default options, the

default becomes even more powerful and difficult to overcome. Balz Decl. ¶ 33, App. at

110.

One confusing term in TWU’s Policy, according to Dr. Balz, is the Union’s referral to

its political activities as “non-chargeable,” an “unintuitive term that does not help employees

assess how those funds would be used.” Balz Decl. ¶ 34, App. at 110. Instead, employees

who might object must gather information from the Union to try to determine what it

considers non-chargeable and whether its unilateral calculations are correct. Balz Decl. ¶ 34,

App. at 110.

For nonmembers to keep their own political money, they must act on Union

information published in very small type, that requires them to draft a letter, make copies of

the letter, and send the letter to two different locations within a thirty-one day deadline. Balz


14

Decl. ¶ 37, App. at 110. If a nonmember thinks the Union’s calculation of the collective

bargaining amount is incorrect, he must take a series of additional steps that act like channel

factors. Balz Decl. ¶ 38, App. at 110. The failure to provide a map, as referenced above,

pales in comparison to the channel factors the Union has created to separate employees

from the political funds to which they have sole title and the fees to which both the Union

and the employees have an arguable legal claim, the disputed fees.

As Dr. Balz finds, the combined power of default options and channel factors tilts

against employees who have personal preferences not to pay fees for political purposes. Balz

Decl. ¶ 40, App. at 111. The Union uses the Policy it imposes upon nonmembers as a tool to

nudge employees toward Union membership and payment of fees equal to dues. Balz Decl.

¶ 41, App. at 111. As a result, “an unknown number of employees” are giving political

money to the Union that they would not otherwise give; money for activities they would not

agree to and would prefer not to support financially. Balz Decl. ¶ 42, App. at 111.

The Workers do not want to be compelled to support the Union at all. Anderson

Decl. ¶ 13, App. at 86; Cruz Decl. ¶¶ 9, 14, App. at 79-81; Cordero Decl. ¶ 15, App. at 48-

49; Richardson Decl. ¶ 10, App. at 38; Madera Decl. ¶ 8, App. at 44; Hofer Decl. ¶ 8, App. at

90-91; Serna Decl. ¶ 7, App at 33; Lambert Decl. ¶ 10, App. at 101. Therefore, they do not

want their money or their legal interests defaulted to the Union. Serna Decl. ¶ 8, App. at 33-

34; Anderson Decl. ¶¶ 8, 12, 15, App. at 84-87; Cruz Decl. ¶¶ 9, 10, App. at 79-80; Cordero

Decl. ¶¶ 12, 15, 16, App. at 48-49; Richardson Decl. ¶¶ 9, 10, App. at 38; Hand Decl. ¶ 8,

App. at 96; Madera Decl. ¶ 9, App. at 44; Hofer Decl. ¶¶ 11, 12, 16, App. at 91-93; Lambert

Decl. ¶ 11, App. at 101. They do not want to be forced to chase after their own money to


15

reclaim it. Anderson Decl. ¶¶ 14, 16, App. at 86-87; Cruz Decl. ¶ 11, App. at 80; Cordero

Decl. ¶¶ 16, 17, App. at 49; Richardson Decl. ¶ 11, App. at 38; Hand Decl. ¶ 7, App. at 96;

Hofer Decl. ¶ 12, App. at 92; Lambert Decl. ¶ 12, App. at 101. They do not want to make

involuntary loans to the Union or have their free speech and political autonomy usurped.

Serna Decl. ¶ 9, App. at 34; Anderson Decl. ¶ 18, App. at 87; Cruz Decl. ¶ 12, App. at 80;

Cordero Decl. ¶ 19, App. at 50; Richardson Decl. ¶ 12, App. at 38; Hand Decl. ¶ 9, App. at

97; Madera Decl. ¶ 10, App. at 44; Hofer Decl. ¶¶ 9, 12, App. at 91-92; Lambert Decl. ¶ 10,

App. at 101.

ARGUMENT

I. WHEN COLLECTING COMPELLED FEES, UNIONS MUST MINIMIZE THE BURDEN ON NONMEMBERS’ FREE SPEECH RIGHTS

The Workers’ First Amended Complaint—Class Action—for Declaratory, Monetary,

and Injunctive Relief (“Amended Complaint”), EFC No. 37, App. at 1-22, presents three

discrete issues: 1) whether nonmembers can be required to fund any Union activities at all

(Count I), Amended Complaint 11-12, App. at 11-12; 2) whether the Union can require

nonmembers to opt out of supporting its political and other nonbargaining activities, instead

of seeking their permission to fund Union politics by asking them to opt in (Count II),

Amended Complaint 13-14, App. at 13-14; and 3) whether two additional policies and

procedures the Union implements against objecting nonmembers violate the First

Amendment (Count III), Amended Complaint 14-15, App. at 14-15. The Workers recognize

that existing Supreme Court precedent in Railway Employes’ Department v. Hanson, 351 U.S. 225

(1956), probably forecloses their request in Count I, but the Workers preserve that Count

for appellate review in light of Knox v. Service Employees International Union, 132 S. Ct. 2277


16

(2012) and Harris v. Quinn, 134 S. Ct. 2618 (2014).5 Accordingly, the Workers concentrate

their arguments and Motion for Summary Judgment on Counts II and III, leaving arguments

on Count I to the end of this brief.

A. The Governing Legal Standards

In Shea v. International Association of Machinists, 154 F.3d 508 (5th Cir. 1998), the Fifth

Circuit fixed three legal principles that are central here. First, it determined that disputes over

compulsory union fees under the Railway Labor Act, 45 U.S.C. § 151 et seq. (“RLA”) are

“subject to constitutional limits [and thus] a reviewing court may properly invoke the

protections of the First Amendment.” 154 F.3d at 516. This makes TWU a governmental

actor, and its Policy for collecting and using compulsory fees is subject to constitutional

limits. Id. at 514; accord, Ellis v. Ry. Clerks, 466 U.S. 435, 455 (1984); Hanson, 351 U.S. at 232.

Second, the Fifth Circuit determined that union procedures for collecting and using

compelled fees must minimize the burden on speech. “[W]e are called upon to protect the

free speech rights of objecting employees from intrusive union procedures. The free speech

rights whose protection is at issue here lie at or near ‘the core’ of the First Amendment. See

Boos v. Barry, 485 U.S. 312 (1988).” Shea, 154 F.3d at 517. Thus, those procedures must “be

carefully tailored to minimize the infringement.” Id. at 514.

5 In June 2014, the Supreme Court further undercut the cases and dicta supporting compulsory unionism and severely criticized Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the landmark decision declaring that compulsory union fees are constitutionally imposed on traditional public employees. Harris, 134 S. Ct. at 2630-34. As a result of “Abood’s questionable foundations,” the Court refused to extend that case to non-traditional employees. Id. at 2638. Nevertheless, the Court did not overrule Abood nor rule broadly on whether compulsory union fees were constitutional for traditional employees. That decision it left for a case, like this one, involving traditional employees.


17

Third, burdensome restrictions, such as slanted defaults,6 adverse channel factors,

“annual renewals,” and forced loans from employees, which enrich a union’s coffers at the

expense of the employees’ First Amendment rights, cannot be allowed. Those provisions of

TWU’s Policy, taken separately and as a whole, “serve[] only to further the illegitimate

interest of the [union] in collecting full dues from nonmembers who would not willingly pay

more than the portion allocable to activities germane to collective bargaining.” Id. at 515.

B. The First Amendment Does Not Permit the Union to Assume Nonmembers’ Consent to Its Political Activities

1. Introduction

The typical union dues dollar is spent in part on politics and in part on collective

bargaining. Retail Clerks v. Schermerhorn, 373 U.S. 746, 754 (1963) (noting that unions typically

use dues for a variety of purposes); Machinists v. Street, 367 U.S. 740, 767 (1961) (Congress is

aware of the long history of intensive political involvement by RLA unions). TWU’s

spending habits are no exception. Policy ¶¶ 5, 9, App. at 24-26.

Some employees want to join and support a labor union, while others do not. The

RLA sets an upper limit on the amount unions can coercively collect from employees.

Coerced collections may not exceed the collective bargaining portion of union dues because

unions are not authorized by Congress or the Constitution to forcibly extract the political

portion from nonmembers. CWA v. Beck, 487 U.S. 735, 762-63 (1988), citing Ellis, 466 U.S. at

448 (an RLA case).

6 As if Shea weren’t enough, the Supreme Court in Knox sounded the death knell to procedures that automatically compel nonmembers to pay for union politics unless they opt out. See infra pp. 18-19.


18

Congress could hardly, consistent with the First Amendment, make unions the

employees’ statutory representative for electing politicians or lobbying Congress. See, Beck,

487 U.S. at 760-61. At the same time, the First Amendment protects the rights of individuals

voluntarily to join an organization and to support its public policy positions. Boy Scouts of Am.

v. Dale, 530 U.S. 640, 647-49 (2000). The question here is, “How do you decide which

employees voluntarily want to turn over to the Union their property for use in political

activities, and which do not?”

Confusion in deciding that issue began with dicta in Street, the “offhand remark,”

Knox, 132 S. Ct. at 2290, that employees who do not want their money used for politics must

object to have their rights protected: “dissent is not to be presumed—it must affirmatively

be made known to the union by the dissenting employee.” Street, 367 U.S. at 774. For the

following 50 years the Supreme Court repeated this dicta without explaining how and to

whom it should apply. That has now changed.

2. Knox supports clarification and reconsideration

In 2012, the Supreme Court resolved confusion over the issue of whether employees

who do not want to support union politics must first object (or opt out). “By authorizing a

union to collect fees from nonmembers and permitting the use of an opt-out system for the

collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if

they do not cross, the limit of what the First Amendment can tolerate.” Knox, 132 S. Ct. at

2291. Knox explains that the “dissent is not to be presumed” dicta of Street was only an

“offhand remark” with no precedential value. Id. at 2290.

In making that offhand remark, we did not pause to consider the broader constitutional implications of an affirmative opt-out requirement. Nor did we explore


19

the extent of First Amendment protection for employees who might not qualify as active ‘dissenters’ but who would nonetheless prefer to keep their own money rather than subsidizing by default the political agenda of a state-favored union.

Id. That was not the first time the Court noted Street’s lack of careful analysis. Almost thirty

years earlier, in 1984, the Supreme Court explained that its prior “opinions did not, nor did

they purport to, pass upon the statutory or constitutional adequacy of the suggested remed[y

for unions taking from employees the political portion of dues].” Ellis, 466 U.S. at 443

(footnote omitted).

In short, Knox reaffirms and strengthens Shea’s requirement that the First

Amendment’s traditional “least restrictive means” tests must be applied to TWU’s Policy,

including its slanted defaults that automatically deprive nonmembers of their free speech and

associational rights.

3. Harris supports clarification and reconsideration

In June 2014, the Supreme Court in Harris squarely examined its precedents

permitting any compulsory union fee requirement, going back to the earliest cases involving

the RLA. Harris turned first to Hanson, criticizing that decision by calling its First

Amendment analysis “thin” and its ruling “narrow.” 134 S. Ct. at 2629. The Court moved

next to Street, and found that Street failed to reach the fundamental question of the

constitutionality of compulsory union fees. Id. at 2630.

The Harris Court summarized those two pivotal cases, the constitutionality of which

compulsory fees under the RLA rest, in this way:

The Abood Court seriously erred in treating Hanson and Street as having all but decided the constitutionality of compulsory payments to a public-sector union. As we have explained, Street was not a constitutional decision at all, and Hanson


20

disposed of the critical question in a single, unsupported sentence that its author essentially abandoned a few years later.

Id. at 2632; accord Lathrop v. Donohue, 367 U.S. 820, 878-80 (1961) (Douglas, J., dissenting).

Thus, those now discredited and undermined decisions cannot preclude this Court from

striking down TWU’s “opt out” regime. Indeed, the Court is required to do so under Shea’s

holding that the First Amendment’s traditional “least restrictive means” tests apply to

TWU’s Policy. Shea, 154 F.3d at 514-17.

C. Assuming “Consent” to Supporting Union Politics Is Only Appropriate for Union Members

As mentioned above, Street “stated in passing that ‘dissent is not to be presumed—it

must affirmatively be made known to the union by the dissenting employee.’” Knox, 132 S.

Ct. at 2290 (quoting Street, 367 U.S. at 774). Context is critical to understanding the meaning

of this dicta and the nature of the issue actually resolved in Street. The Georgia Supreme

Court noted that all employees, as a condition of employment, were required to “join the

unions of their respective crafts” and had to “pay dues, fees, and assessments to the unions,”

which were used for political activities to which some “members” objected. Machinists v.

Street, 108 S.E.2d 796, 807 (Ga. 1959).

Thus, every employee in Street was a union “member”—some voluntarily, some by

compulsion. Unlike TWU, the union in Street recognized no nonmembers. Having no way to

determine who wanted to be a union member and who was coerced into union membership,

the Court faced the question of how to sort that out when there were no nonmembers. The

Court seized on the offhand notion that “dissent is not to be presumed,” a notion that


21

applies to union members, but not to those who already have opted out of membership or

never opted into membership.

Thus, “dissent is not to be presumed” was meant to be a pragmatic rule applied to

voluntary members only. Unions have every right to assume that voluntary union members

support its political choices and activities, unless told otherwise. However, applying “dissent

is not to be presumed” to employees who have already opted for nonmembership is both

nonsensical and counterintuitive. Here, TWU has no justification, and certainly no

constitutional right, to assume nonmembers support anything it does, especially its political

choices and activities. Unions have no more power over nonmembers than they have “over

the man in the street.” NLRB v. Granite State Joint Bd., 409 U.S. 213, 217 (1972). Knox teaches

that the “dissent is not to be presumed” rule is unconstitutional and “a historical accident”

when applied to nonmembers. Knox v. Serv. Emps. Int’l Union, 132 S. Ct. 2277, 2290 (2012).

At most, consent to union political spending can be gleaned only from actual union

members.

D. Nonmembers Have Never Been Required to Object to Paying Political Fees

As explained, TWU’s Policy creates two default decision points at which

nonmembers involuntarily (by default) agree to support Union politics. The first default

decision pushes nonmembers to pay the admitted political portion of Union dues, even

though the Union has no legal claim to it. The second default decision involves the

remaining portion of dues—that portion the Union unilaterally has determined involves only

bargaining expenses. The Union defaults nonmembers into releasing their claims to that

potentially disputed portion of the fees. Balz Decl. ¶¶ 39, 40, App. at 110-111.


22

Prior Supreme Court decisions involving mixed groups of union members and

nonmembers as plaintiffs have created some ambiguity regarding the “offhand dicta” that

“dissent is not to be presumed.” However, the Court has never imposed an objection

requirement at that first decision point when the employee-plaintiffs were all nonmembers,

and it clearly has never imposed it on nonmembers in the mixed (member and nonmember)

federal cases. That is true from the earliest precedents.

1. Nonmember only cases

Consider Railway Clerks v. Allen, 373 U.S. 113 (1963), which involved only

nonmembers. Id. at 116. There, the first default decision point was not at issue because the

union claimed entitlement to a fee equal to dues, and the nonmembers claimed they owed

nothing. Id. Since the entire fee was claimed by both parties, as a practical matter only the

second decision point was at issue.

Moreover, the Supreme Court held that those nonmembers satisfied any “dissent”

requirement merely by suing the union in federal court. Id. at 119 n.6. Indeed, the Court

permitted nonmembers to dissent as late as the trial, and even after remand from the

decision of the Supreme Court! Id. at 119. The Court treated the obligation to dissent or

object merely as a practical requirement.

Further support for that conclusion comes from Allen’s suggestion that a future

remedy (once the contested amount was determined) would be “a reduction of future such

exactions from [nonmembers] by the same proportion.” Id. at 122. Once the division

between collective bargaining and political expenses was made, the nonmember would no

longer pay the political amount, either directly or through a forced loan. The future first


23

default decision point would be set to automatically free the nonmember from supporting

union politics. It would not be set to cause title to the nonmember’s money to change hands

automatically based upon his alleged failure to dissent again.

Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986), includes the

Supreme Court’s most extensive discussion of the procedural aspects of compulsory union

fees. Analogizing to the Union’s two decision points in this case, the first default decision for

nonmembers in Hudson was that they were automatically opted out of supporting the

political portion of union dues. Id. at 295. The Hudson union unilaterally calculated that 5

percent of dues was spent on politics, and therefore 95 percent was chargeable to

nonmembers for bargaining. Id. It agreed with the employer that the fee to be deducted from

nonmembers’ pay was limited to the “proportionate share” (95 percent), even in the absence

of a registered dissent or objection. Id.

Thus, all nonmembers in Hudson were automatically “opted out” of paying the

political portion of union dues. If they wanted to support union politics, those nonmembers

would have to take affirmative steps to make the additional payments. Hudson’s discussion

about objecting focused on the second decision point—what procedures should be used for

handling the fees to which both the union and the nonmembers laid claim.

Several important conclusions can be drawn from Hudson’s discussion of the dispute

over the second decision point. At a minimum, the Court did not think it appropriate to

impose any deadline (other than the normal limitations periods applying to litigation) for

nonmember objection at the second decision point. The Court noted that four plaintiff-

nonmembers filed some sort of objection letter, but three other nonmembers never made


24

any objection prior to filing suit against the union. Id. at 297. The Court treated those who

had objected by letter identically to those who had not.

In describing two bright lines for resolving the procedural issues, Hudson laid down

the following:

unions should never be allowed to collect political fees from nonmembers and

later return them (id. at 305-07); and,

contested fees (i.e., those “reasonably in dispute”) should be explained, verified,

and escrowed until a hearing over their ownership is provided (id. at 306-07, 309-

10).

Those bright lines resolve TWU’s assumption that all nonmembers consent to paying

for Union politics unless they opt out. Because the Union defaults the first decision point to

permit it to keep the political portion of the dues money to which it admits it has no legal

claim, that violates the first bright line. Since the Union has no claim to the political portion

of dues, changing the first default to presuming nonmembers do, in fact, dissent, is also

consistent with the “least restrictive means” analysis traditionally used in free speech cases.

Knox, 132 S. Ct. at 2289, 2291; Shea v. Int’l Ass’n of Machinists, 154 F.3d 508, 517 (5th Cir.

1998).

Although Hudson refers to the obligation of nonmembers to object (as argued by the

Union, Union Br. 16, ECF No. 55), that is always in the context of the second decision point

(the challenge to the chargeable calculation), where title to the money at issue is reasonably

disputed. That is why Hudson requires unions to give nonmembers “sufficient information to

gauge the propriety of the union’s fee,” so they can be educated as to whether they should


25

object to the union’s unilateral claim to the collective bargaining portion of union dues. 475

U.S. at 306.

Nonmembers would not need any information from the Union, audited, verified or

otherwise, regarding the political amount—the amount to which the Union admits it has no

legal claim. Requiring unions to provide information about the amount to which both the

union and the nonmember have potential legal claims is perfectly logical. That is why Hudson

did not require an escrow of amounts “no dissenter could reasonably challenge.” Id. at 310.

Just as any amount to which the nonmember could not reasonably lay claim should flow

automatically to the Union, so any amount to which the Union has disclaimed any interest

should flow automatically to the nonmember.

In short, these cases demonstrate the first decision point must always default to the

nonmember, so he can keep the money to which the Union has no claim in the first place.

“Dissent is not to be presumed” applies, if at all, only to the second decision point, where

the nonmember is faced with deciding whether to contest the union’s claim to the balance of

the fee and undertake a challenge to the union’s calculation of that disputed amount.

2. Mixed member and nonmember cases

Abood v. Detroit Board of Education, 431 U.S. 209 (1977), notes two things about

remedies and the need for dissent. First, Abood held that the prior decisions of Machinists v.

Street, 367 U.S. 740 (1961) and Allen were statutory, not constitutional, in nature. Abood, 431

U.S. at 240. Thus, they were not the final word on whether requiring dissent is consistent

with nonmembers’ constitutional rights, even if it might be with their statutory rights.


26

Additionally, Abood observed that Allen had relaxed the dissent requirement called for

in Street. “Allen can be viewed as a relaxation of the conditions established in Street governing

eligibility for relief.” Abood, 431 U.S. at 239 n.39. The dissent requirements were neither a

matter of constitutional doctrine, nor written in stone.

Second, and more importantly, Abood tied the dissent obligation to union members.

The Court wrote that individual dissent, rather than a sweeping injunction against the union,

is the correct approach, “because those union members who do wish part of their dues to be

used for political purposes have a right to associate to that end ‘without being silenced by the

dissenters.’” Id. at 238 (emphasis added) (quoting Street, 367 U.S. at 772-73). When

nonmembers insist on their right to refuse to support union politics, they do not silence

members. Such political money is not the property of the union or its members, but instead

is “other people’s money.” Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 187 (2007).

In Ellis v. Railway Clerks, 466 U.S. 435 (1984), the Court ruled upon the proper

division of “challenged expenditures” and stated a test for determining which expenses are

chargeable and which are not. Id. at 448.7 Ellis therefore references the second decision

point, where both the union and the nonmember claim the money, and the question is

whether the challenged expenditures are for collective bargaining or for politics. Thus, any

discussion in Ellis of the “dissent is not to be presumed” language applies only to the second

decision point, not to the first decision point.

Indeed, Ellis supports the majority’s statement in Knox v. Service Employees International

Union that “acceptance of the opt-out approach appears to have come about more as a

7 Ellis did not involve “union political activities.” Id. at 449.


27

historical accident than through the careful application of First Amendment principles.” 132

S. Ct. 2277, 2290 (2012). Not only had the Supreme Court, in the early years when “dissent

is not to be presumed” originated, not passed on the constitutional issues at stake for

nonmembers, but a careful analysis of past precedent shows that the Court has never

required dissent from nonmembers at the first decision point. It is only at the second

decision point that it has done so, if at all. Instead, as discussed next, a proper analysis of the

First Amendment shows that presuming dissent (opt in) at the first decision point is required

under traditional First Amendment analysis.

E. The First Amendment Requires Opt In

Justice Breyer’s dissent in Knox cites a law review article8 written by Sunstein and

Thaler, the authors of the aforementioned New York Times bestseller Nudge.9 132 S. Ct. at

2307. The law review article, like Nudge, addressed “choice architecture” and its effect on

decision making. As Dr. Balz explains, choice architecture is about the behavioral science of

decision-making. Balz Decl. ¶¶ 15-42, App. at 107-11.

Justice Breyer noted in Knox that “default rules play an important role” in individual

decision-making. 132 S. Ct. at 2307. It appears the Justices understood how choice

architecture, specifically setting the defaults in compulsory union dues cases, affects

employees’ decisions about their First Amendment rights. Of particular concern to Justice

Breyer was the group of employees who have no “well-defined preferences” in this area. Id.

8 Sunstein & Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. Chi. L. Rev. 1159, 1161 (2003). 9 Richard H. Thaler & Cass R. Sunstein, Nudge (Penguin Books 2009).


28

While Justice Breyer’s concern for employees who do not have well-defined

preferences is appropriate, Dr. Balz shows that this issue extends to human tendencies in

general. Humans naturally tend towards inertia or non-action. Balz Decl. ¶ 21, App. at 108.

Here, the way the Union has structured the initial decision point to default to its own benefit

upsets the status quo and causes money to change hands. Since the Union has no legal claim

to the political portion of its dues, the status quo should remain intact and nonmembers

should retain sole title to their own money.

Here, TWU is a state actor, and for it to structure that choice in a way that defaults

nonmembers into paying money to purchase “core” political speech, Shea, 154 F.3d at 517,

“cannot be tolerated” unless it passes strict scrutiny. Harris v. Quinn, 134 S. Ct. 2618, 2639

(2014). The government has absolutely no reason to hand the Union title to the Workers’

money in the absence of their express approval. Thus, structuring the Workers’ choice,

through defaults or channeling, to favor a transfer in ownership to the Union violates the

First Amendment. Courts “do not presume acquiescence in the loss of fundamental rights.”

Knox, 132 S. Ct. at 2290 (citations omitted).

If the default were set the other way (i.e., Workers would have to “opt in” to paying

for Union politics), the status quo would remain intact. No money would change hands

based only on the default of the way the Union structured the choice. That is in accord with

what the First Amendment protects and what its “least restrictive means” test requires.

The second default decision point also causes a legal interest to change hands. By

default, the Workers’ right to challenge the Union’s fee calculation and seek a further

reduction is extinguished. The Union automatically owns all the remaining disputed fees


29

unless the Worker is willing to object again and mount a litigation-style challenge. Because

the Union’s interest in the disputed money is only a matter of “legislative grace,” while the

Workers’ interest is constitutional, the same careful tailoring to minimize free speech rights

applies. Knox, 132 S. Ct. at 2291. Once again, the use of default and channeling to deprive

the Workers of their property and their free speech cannot be tolerated at this decision point

either.

F. The Law of Prior Restraint Requires Opt In

Free speech cases outside the union dues context show the serious constitutional

flaws with the Union’s choice architecture. The First Amendment protects not only the right

to speak, but also the right not to speak. Harper & Row, Publishers, Inc. v. Nation Enters., 471

U.S. 539, 559 (1985) (“There is necessarily, and within suitably defined areas, a concomitant

freedom not to speak publicly, one which serves the same ultimate end as freedom of speech

in its affirmative aspect.”); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 645 (1943)

(Murphy, J., concurring) (“The right of freedom of thought and of religion as guaranteed by

the Constitution against State action includes both the right to speak freely and the right to

refrain from speaking at all . . . .”).

When the Union sets the first default decision to “You agree to give us your political

money,” it has forced Workers to speak in the tongue of the Union and has required them to

chase after the Union to recover their political autonomy—losses that can never be fully

recovered.

In Thomas v. Collins, 323 U.S. 516 (1945), Texas claimed union officials were required

to obtain a government-issued license—an organizer’s card—before giving pro-union


30

speeches to supporters. The organizer’s card met “merely a previous identification

requirement” and was granted as a “ministerial, not discretionary,” matter. Id. at 538. The

Supreme Court nevertheless found the prior registration requirement “quite incompatible

with the requirements of the First Amendment.” Id. at 540.

If the First Amendment forbids a registration requirement to promote unions, then

“registration” to oppose unions likewise cannot be required. TWU’s requirement that

nonmembers register their dissent to supporting union politics is a prior restraint on their

speech. Here, the violation is further exacerbated because employees must go through a

series of steps to recover their own money. That cannot be squared with traditional First

Amendment rules. Those traditional rules, as reflected by behavioral science, cannot require

citizens to overcome inertia (the Status Quo Bias) to protect their First Amendment rights

and prevent a prior restraint on their speech.

G. Privacy Rights Require Opt In

In Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150

(2002), the Court found the requirement to obtain a permit to speak, even though routinely

granted, infringed upon First Amendment rights because it required speakers to give up one

aspect of their anonymity. The Court acknowledged that “a significant number of persons

. . . support causes anonymously” because they may fear “economic or official retaliation” or

because they “desire to preserve as much . . . privacy as possible.” Id. at 166 (quoting McIntyre

v. Ohio Elections Comm’n, 514 U.S. 334, 341-42 (1995).

Privacy is not only a safeguard to autonomy of opinion, but it is also a safeguard

against verbal and physical violence. Labor unions have a well-documented history of such


31

acts—including the famous murder of United Mine Workers’ official Joseph Yablonski, his

wife and daughter, see Prater v. United States Parole Commission, 575 F. Supp. 284, 285 (S.D. Ind.

1983), and the more recent facts in Dixon v. International Brotherhood of Police Officers, 504 F.3d

73 (1st Cir. 2007), where a police officer’s union ruined her reputation and career. Fear of

retaliation is well-founded because labor unions are exempt not only from the normal rules

of defamation protecting private individuals, National Ass’n of Letter Carriers v. Austin, 418

U.S. 264 (1974), but also from federal rules restraining them from violence (including

“blowing up” property) if carried out in furtherance of “legitimate” union objectives. United

States v. Enmons, 410 U.S. 396, 398, 408 (1973).

Such fears of serious physical and personal losses that arise from clashes with union

officials trigger another choice architecture factor: “Loss Aversion Bias.” Psychologically, a

person would rather go without a profit than incur a loss; the human tendency is to protect

what has already been earned.10 In experiments, a rough rule of thumb has emerged: people

will expend about twice as much personal cost to keep something they currently own than

they would spend to acquire it originally. In other words, the loss of something already

possessed makes a person twice as miserable as gaining a new, equal windfall would make

him happy.11 Individuals do not want to risk loss that might result from having to publicly

dissent against the union. Thus, privacy concerns require opt in.

In sum, the First Amendment does not allow unions to slant employees’ decision

making process to make it effortless for them to unnecessarily give up their political money,

10 Richard H. Thaler & Cass R. Sunstein, Nudge 33-34 (Penguin Books 2009). 11 Id. at 33-34.


32

while making it difficult or burdensome for them to get their own money back. After Knox,

Harris, and Shea, the “least restrictive means” test mandates TWU’s use of an “opt in”

system, so unions will have to ask permission before taking the nonmembers’ money for

political purposes. These constitutional principles are bolstered by common sense, human

nature, and behavioral science. Summary judgment should be granted to the Workers on

Count II of their Complaint, and, upon class certification, class-wide declaratory, injunctive,

and monetary remedies should be imposed on TWU in accordance with the Complaint. This

would include an award of damages for all class members who have not already received a

rebate of the political and other nonbargaining portions since at least July 1, 2012.

II. THE WORKERS’ CHALLENGE TO TWU’S “ANNUAL RENEWAL” REQUIREMENT IS NOT MOOT

TWU argues that Count III of the Workers’ Amended Complaint, which challenges

the Union’s requirement that objectors must “annually renew” their objections, is moot

because the Union unilaterally dropped that requirement months after this lawsuit was filed.

(Compare ¶ 3(b) in the old Policy, App. at 28, with ¶ 3(b) of the new Policy, App. at 23.)

The Union asserts that it “has no intention of re-establishing the annual renewal

requirement,” Union Br. 3, 8, 21, ECF No. 55, and it now recognizes “its annual renewal

requirement was inconsistent with governing Fifth Circuit law,” citing Shea v. International

Ass’n of Machinists, 154 F.3d 508, 515 (5th Cir. 1998). Union Br. 20, ECF No. 55. Yet TWU

never explains the mechanism by which it unilaterally changed its policy (e.g., constitutional

convention, binding vote of the executive board, or a membership vote), and the convenient

assertion that it “has no intention” of going back to the old policy appears based on what its


33

current lawyer told it about the law, not an irrevocable, legally binding act. App. in Supp. of

Summ. J. Mot. of Def. Transp. Workers Union of Am. at 41, ECF No. 56.

The Union’s assertion of mootness is wrong, and the Workers’ challenge to the

“annual renewal” requirement is very much alive and ripe for the declaratory, injunctive, and

compensatory relief they seek.

First, TWU’s belated, bare-bones promise to cease enforcing the “annual renewal”

requirement and to “never do it again” rings hollow. Shea was decided by the Fifth Circuit in

1998, yet it took the filing of this lawsuit in 2013, fifteen years later, for the Union to suddenly

drop that unlawful policy in 2014. Why did the Union wait fifteen years after Shea to change

its ways? It waited because it was happy to ignore the Fifth Circuit and seize nonmembers’

political money, even nonmembers residing and working within the Fifth Circuit like

Plaintiffs Serna, Richardson, Cruz, Cordero, and Madera.

As the Union unabashedly admits, the “annual renewal requirement was consistent

with the holdings of a number of [other] courts. See, e.g., Abrams v. CWA, 59 F.3d 1373,

1381-82 (D.C. Cir. 1995) (upholding union’s annual renewal requirement); Tierney v. City of

Toledo, 824 F.2d 1497, 1506 (6th Cir. 1987) (same).” Union Br. 7-8, ECF No. 55. But it was

not consistent with the binding holding of the Fifth Circuit. In other words, the Union’s very

belated and not-so-voluntary cessation of its illegal conduct was done precisely as a litigation

tactic—in this circuit only—to try to moot Count III of the Complaint.

Second, as the Supreme Court has frequently noted, voluntary cessation—especially a

belated cessation done for tactical reasons—cannot moot a case. Knox v. Serv. Emps. Int’l

Union, 132 S. Ct. 2277, 2287 (2012). “A case becomes moot only when it is impossible for a


34

court to grant any effectual relief whatever to the prevailing party.” Id. (citations and internal

quotations omitted). “[A]s long as the parties have a concrete interest, however small, in the

outcome of the litigation, the case is not moot.” Ellis v. Ry. Clerks, 466 U.S. 435, 442 (1984).

As demonstrated below, Workers and class members suffered concrete economic damages

from the Union’s fifteen-year flaunting of Fifth Circuit law.

Even cases cited by TWU support the Workers, not the Union. For example, TWU

cites K.P. v. LeBlanc, 627 F.3d 115 (5th Cir. 2010), but there the Fifth Circuit found that

defendants’ voluntary cessation did not moot the case.

Voluntary cessation even of all the conduct being challenged in a lawsuit does not moot a case. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 324 (5th Cir. 2009). A defendant, without court compulsion, could legally return to its former ways. The defendants, who are the ones asserting mootness, must convince us that there is no reasonable prospect that what the plaintiffs allege as the cause of their injury will recur. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). We are not convinced.

K.P., 627 F.3d at 121. In the absence of a Court order, TWU has free rein to follow the law

of other circuits, return to its former Policy, and reinstate the annual renewal requirement.

Third, the annual renewal requirement has actually and directly harmed the Workers

and many objecting employees who are part of the class. Workers who complied with the

Union’s unlawful policy were compelled to incur the costs of reproducing and mailing

repeated annual objections, for which they are entitled to damages in the amount of those

expenses. This includes Plaintiff Anderson, who estimates it cost him $12.50 each year to

renew his objection from 2011 to 2014, Anderson Decl. ¶ 10, App. at 85, along with class

members who sent renewed objection letters to the Union each year, precisely to avoid being

“flipped” and forced to pay for the Union’s political expenses. Employees in the class who


35

did not comply with the Union’s unlawful policy (i.e., those who did not annually reiterate

their objections) were automatically “flipped” back to being non-objectors and wrongfully

compelled to pay for the Union’s political expenses for one or more years. Those class

members are entitled to damages in the amount of those “flipped” back political fees.

Thus, contrary to the Union’s protestation that “Plaintiffs have no claim to damages

since the annual renewal requirement caused them no financial harm,” Union Br. 24, ECF

No. 55, the Workers and class members have defined financial losses that should be awarded

on Count III of the Complaint. See, e.g., Anderson Decl. ¶ 10, App. at 85; Hofer Decl. ¶ 13,

App. at 92. The federal courts recognize that the “injury-in-fact necessary for standing ‘need

not be large, an identifiable trifle will suffice.’” Sierra Club v. Franklin Cty. Power of Ill., LLC,

546 F.3d 918, 925 (7th Cir. 2008) (citations omitted); accord United States v. Students Challenging

Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973). Here, the unreimbursed expenses

employees incurred to comply with the Union’s unlawful policy, such as the costs of sending

renewal letters, often by certified mail, satisfy that standard. Anderson Decl. ¶ 10, App. at 85;

see also Hofer Decl. ¶ 13, App. at 92 (estimates it cost him “just under $20.00” to opt out for

just one year). The Workers and class members have a “concrete interest, however small,” in

seeking recompense from the Union. Knox, 132 S. Ct. at 2287 (citing Ellis, 466 U.S. at 442).

Finally, there exists an entire class of Workers whose objections were presumably

cancelled by operation of the annual renewal requirement. The Union never denies that for

more than a decade it enforced the annual renewal requirement against the class. Indeed, the

Union ignores that this is a class action, and it is silent about providing relief to the absent

class members who suffered losses when the annual renewal requirement was enforced


36

against them, despite their prior objections to Union political spending. Upon certification of

the class, the absent class members will be entitled to relief, and their existence makes this a

live and continuing controversy.12

In Sosna v. Iowa, 419 U.S. 393, 401 (1975), the Supreme Court recognized “that a case

such as this . . . [where] the issue sought to be litigated escapes full appellate review at the

behest of any single challenger, does not inexorably become moot by the intervening

resolution of the controversy as to the named plaintiffs.” Indeed, even where “there is no

chance that the named plaintiff’s expired claim will reoccur, mootness still can be avoided

through certification of a class prior to expiration of the named plaintiff's personal claim.”

United States Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980). Here, the class certification

motion remains pending, and the Union’s tactical retreat should not be rewarded to the

detriment of the class.

In short, there remains live claims to be remedied regarding the Union’s annual

renewal requirement. Without a judicial declaration and injunctive relief, the Union is free to

decide at any time it likes the precedents of other circuits more than those of the Fifth

Circuit, and it will be able to avoid paying for the damages its blatant violation of Shea has 12 TWU also argues that its last-minute decision to cease its annual renewal requirement also moots the Workers’ challenge to the Policy’s basic opt out requirement. Union Br. 24 n.10, ECF No. 55. This is incorrect. Not only was every Worker required to opt out, and everyone required to pay a dues equivalency fee until they did, but all class members were also required to opt out. Even though the Union has ended the annual renewal requirement, it has not ended its requirement that the class of nonmembers must initially “opt out” or else continue to pay the Union’s political expenses. Thus, the opt out claims of nonobjecting class members are not moot. In addition, should any Workers or class members decide to rejoin the Union, they would still be faced with the Union’s opt out requirements should they elect to become nonmembers again and not want to support the Union’s politics. Since all Workers and class members have been, and some class members remain, subject to the opt out requirement, they are entitled to a declaratory judgment on whether the First Amendment requires opt in instead of opt out, along with the corresponding injunction and damage awards.


37

caused the Workers, see Anderson Decl. ¶ 10, App. at 85, and members of the class. For all

of these reasons, this case presents a live and continuing controversy in which the Court can

grant substantial relief.

III. UNIONS HAVE NO AUTHORITY TO FORCE LOANS FROM NONMEMBERS

TWU’s Policy provides that if nonmembers use “check-off” (payroll deduction) to

pay Union dues, an option it provides to members, the amount to be collected is the entire

dues amount (including the political portion to which the Union has no claim). The political

portion is then held “in an interest bearing escrow account” and refunded with interest to

the nonmember “following each calendar quarter,” if the employee remembers to timely

object. Policy ¶ 8(b), App. at 25. The Workers and many class members repeatedly have

been forced (each quarter) to endure deprivation of their own money for months at a time,

and to loan the Union money to which it has absolutely no claim. Anderson Decl. ¶ 17, App.

at 87; Hand Decl. ¶¶ 7, 9, App. at 96-97; Cordero Decl. ¶ 19, App. at 50; Madera Decl. ¶ 10,

App. at 44; Hofer Decl. ¶ 12, App. at 92; Cruz Decl. ¶ 12, App. at 80.

The law does not permit that. “As we have recognized, the First Amendment does

not permit a union to extract a loan from unwilling nonmembers even if the money is later

paid back in full.” Knox, 132 S. Ct at 2292-93. Knox, of course, is very recent precedent. The

rule however, is not new; it has been around for almost thirty years. In Chicago Teachers Union,

Local No. 1 v. Hudson, 475 U.S. 292 (1986), the Supreme Court discussed the historical

problem of unions taking political money from employees, spending it, and then later

returning portions that should never have been taken in the first place. Involuntary loans of

that nature were held unlawful because the employee’s money was being taken from him


38

without justification and spent for union politics. Id. at 305-06; Ellis, 466 U.S. at 444. It is

also unlawful because the forced loan deprives employees access to their own money for

their own use, including spending it on their own politics. Anderson Decl. ¶ 12, App. at 85-

86; Hand Decl. ¶ 7, App. at 96; Cordero Decl. ¶ 19, App. at 50; Hofer Decl. ¶ 9, App. at 91;

Richardson Decl. ¶ 12, App. at 38; Lambert Decl. ¶ 10, App. at 101.

Here, the Union has no reasonable basis for extracting and holding on to the full

amount of dues, then waiting more than four months to return that portion it never should

have collected in the first place. The Union admits through its own self-interested

calculations that it has no claim to the amount escrowed. Instead, TWU defends its actions

on the basis it does not spend nonmembers’ money, and besides, payroll deduction is

voluntary. Union Br. 18-19, ECF No. 55.

The Union’s argument that it does not actually spend nonmembers’ seized money

does not cure the problem. The fact is TWU has deprived nonmembers of the use of their

own money for their own political purposes. Anderson Decl. ¶ 12, App. at 85-86; Hand

Decl. ¶ 7, App. at 96; Lambert Decl. ¶ 12, App. at 101; Cordero Decl. ¶ 19, App. at 50;

Hofer Decl. ¶ 9, App. at 91; Richardson Decl. ¶ 12, App. at 38. “The diversion of the

employees’ money . . . damages them . . . [in that it] renders them unable by these amounts

to express their own convictions and their own ideas and to support their own causes.” Seay

v. McDonnell Douglas Corp., 427 F.2d 996, 1004 (9th Cir. 1970).

TWU is barred from arguing the voluntary nature of payment by payroll deduction

because the Union is required, as discussed above, to minimize the burden on nonmembers,

no matter how the forced fees are paid. Shea v. Int’l Ass’n of Machinists, 154 F.3d 508, 514-15


39

(5th Cir. 1998). The Union admits the obvious—payroll deduction is a “convenience” to

both the Union and the employee, member and nonmember alike, because the Union

automatically gets the money without any collection effort and the employee avoids an

inadvertent failure to make the payments required to keep his job. Union Br. 8, ECF No. 55.

Here, the one time a “channel factor” benefits the Workers, the Union claims it as an

excuse to violate the Workers’ constitutional rights. Were the Union to truly minimize the

burden on nonmembers, instead of constantly maximizing it through unfavorable channel

factors, payroll deduction would not be the only “convenience” it offered.

The Union’s argument that it does not actually “spend” the escrowed money raises

the question, “Why does the Union take more than that to which it is entitled in the first

place, even if it escrows the amount, and eventually returns it?” Hudson makes clear that the

amount to be escrowed is that which is reasonably in dispute, not the amount to which the

union admits it has no claim. A 100 percent escrow has a “serious defect” if it deprives a

party “access to some escrowed funds that it is unquestionably entitled to retain.” 475 U.S. at

310. While the party referred to in this Hudson quote is the union, it logically applies to either

party, and clearly applies to the Workers and nonmembers here, who unquestionably are

entitled to retain their political money.

The forced-loan requirement in the Union’s Policy violates the First Amendment

rights of the nonmembers. This Court should issue a declaratory judgment to that effect,

enjoining TWU from implementing forced loans in the future and from collecting the

political and other nonbargaining portion of its dues in the first place. Finally, this Court

should award the Workers and the objecting class members nominal damages in the amount


40

of $1.00 per year for each year, since July 1, 2012, in which they were forced to loan TWU

their political money.

IV. THE COMPULSORY UNION FEE EXPERIMENT HAS FAILED, BECAUSE IT IS INCOMPATIBLE WITH THE FIRST AMENDMENT13

A. Compulsory Union Fees Are an Experiment That Failed

More than 60 years ago the Supreme Court embarked on the experiment with

compulsory union fees. In Railway Employes’ Department v. Hanson, 351 U.S. 225 (1956), the

Court acknowledged the controversial nature of this compulsion: “The ingredients of

industrial peace” are not only “numerous and complex,” but also “may well vary from age to

age,” with the result being that what “would be needful one decade might be anathema the

next.” Id. at 234.

Even decades ago, Justice Black passionately opposed the compulsion. He wrote,

“The reason our Constitution endowed individuals with freedom to think and speak and

advocate was to free people from the blighting effect of . . . governmental monopoly of

ideas.” Machinists v. Street, 367 U.S. 740, 796-97 (1961).

Not only did he believe that compulsory union fees forced speech and advocacy into

paths chosen by government, but he correctly foresaw that the Court’s remedy would fail

workers and be a “very lucrative” boon for “special masters, accountants and lawyers” who,

“with sufficient skill in accounting, algebra, geometry, trigonometry and calculus” would

“extract the proper microscopic answer from the [union’s] voluminous and complex

13 This section of the brief relates to Count I of the Workers’ Amended Complaint, ECF No. 37. The Workers understand that this issue is probably foreclosed by existing precedent, though Harris and Knox indicate changes are in the offing. The Workers include this section of the brief out of an abundance of caution to apprise the Court of their arguments and ensure that they do not waive any points in this Court or in the appellate courts.


41

accounting records.” Id. at 795-96. Justice Black predicted that this accounting and legal

nightmare “promises little hope for financial recompense to the individual workers whose

First Amendment freedoms have been flagrantly violated.” Id. As will be discussed below,

“financial recompense” is the least of the adverse financial considerations.

Permitting compulsory union fees, and requiring nonmembers to chase after their

property to avoid supporting union politics, were, in Justice Black’s opinion, prohibited by

the First Amendment and “should be stopped dead in its tracks.” Id. at 797.

Hanson was hardly a ringing endorsement of compulsory unionism. It noted that the

elimination of compulsory unionism was easily within the “police power of a State.” 351

U.S. at 233. “The decision rests with the policy makers, not with the judiciary.” Id. at 234.

Harris v. Quinn described Hanson’s analysis of the constitutionality of compulsory union fees

as “a single, unsupported sentence that its author essentially abandoned a few years later.”

Harris, 134 S. Ct. 2618, 2632 (2014).

Decades later, experience has shown that the violation of the First Amendment is so

compelling that compulsory unionism can no longer be written off as a controversial, but

allowable legislative policy. As shown in the remaining portion of this brief, Justice Black

was clairvoyant regarding this experiment with employees’ constitutional rights. As the

Supreme Court recently wrote, “deference in matters of [legislative] policy cannot, however,

become abdication in matters of law.” National Fed’n of Indep. Bus. v. Sebelius, __ U.S. __, 132

S. Ct. 2566, 2579 (2012). After 60 years of the controversial experiment with compulsory

unionism, deference has become abdication, and a course correction is required.


42

B. Workplace Compulsion Defies Recent Legislative and Judicial Precedent

The original justification for compulsory fees sat on a very narrow perch: the

legislative judgment that the elimination of “free riders” was necessary for “labor peace.”

Knox v. Serv. Emps. Int’l Union, 132 S. Ct. 2277, 2290 (2012). (“Free riders” is a term referring

to employees who are included within a bargaining unit covered by a union negotiated

contract, but who do not financially support the union).

Time and experience have swept the free rider/labor peace justification into the

dustbin of history. For one thing, the validity of the original legal justification is invalid

because “free rider” arguments are “generally insufficient to overcome First Amendment

objections.” Id. at 2289. “The mere fact that nonunion members benefit from union speech

is not enough to justify an agency fee.” Harris, 134 S. Ct. at 2636.

Time has also shown the factual basis for the free rider/labor peace claim no longer

can be sustained. Pursuant to the power given them by Congress under 29 U.S.C. § 164 (b),

approximately one-half of the states (24) have chosen to pass Right to Work laws that

prohibit compulsory union fees. Right to Work States, www.nrtw.org/rtws.htm (last visited

Sept. 18, 2014). Is there a marked difference in labor peace between Kansas and Missouri?

What about between New Mexico and Arizona, or Virginia and West Virginia? In each case,

one state permits so-called “free-riders” and the other does not, with no observable

difference in workplace violence or strife.

Indeed, the argument favoring compulsion as a necessary component of labor peace

is even more pallid, because in states permitting compulsion, Congress has decreed that

compulsory union fees are not mandatory, but rather are a matter of agreement between the


43

employer and union. National Steel & Shipbldg. Co., 324 NLRB 1031 (1997); Hickinbotham Bros.

Ltd., 254 NLRB 96 (1981); Phelps Dodge Specialty Copper Prod. Co., 337 NLRB 455 (2002).

Moreover, even when the employer and union agreed to compulsion, Congress has allowed

employees to vote to “deauthorize” that compulsion. 29 U.S.C. § 159(e); Covenant Aviation

Sec., 349 NLRB 699 (2007); Albertson’s/Max Food Warehouse, 329 NLRB 410 (1999). If

Congress truly believed compulsion was necessary for workplace peace—if this is a policy

beyond the reach of the judiciary—how could it be left to the vagaries of collective

bargaining or the whims of the employees or the States?

Employees are legally entitled to request union representation under federal law. But

it seems fair to say that 93+ percent of private sector employees have “voted with their feet”

that union representation is not worth the minor exertion of signing their name on a union

card and following that with a vote for union representation. News Release, U.S. Dep’t of

Labor, Bureau of Labor Statistics, Union Members—2013 ( Jan. 24, 2014),

http://www.bls.gov/news.release/pdf/union2.pdf (last visited Sept. 18, 2014). Can anyone

seriously claim, in the face of these facts, that compulsion is necessary for peace in the

workplace?

Indeed, employees often have different interests. In Professor Clyde W. Summers’

book review of Sheldon Leader’s Freedom of Association: A Study in Labor Law and Political

Theory (Yale Univ. Press 1992), published in the Comparative Labor Law Journal, 16 Comp. Lab.

L.J. 262 (1995), he noted the minority is often actually made worse by a union’s collective

bargaining agreement. Id. at 267. Summers and Leader agreed that such “unwilling

beneficiary is not caught by any plausible charge of free riding.” Id.


44

The Summers’ article is cited by the majority in Knox for several examples of groups

benefitting others without anyone thinking the benefit created “free riders” who should be

forced to pay for the benefits. 132 S. Ct. at 2289-90. The Summers article concludes:

“tolerance of free riders is one of the hallmarks of a free market system and an inescapable

condition in any complex democratic social system.” 16 Comp. Lab. L.J. 268. Free markets

do not impose compulsion on free-riders. Neither does the First Amendment.

The free rider/labor peace argument for compulsory fees is also tenuous in modern

society, for it carries the ring of authoritarianism: those in power claim that they are in the

pursuit of peace, but their definition of peace is when all submit to their rule and are no

longer capable of fighting back. The absence of competition is viewed as a state of peace by

those in charge, but in reality it is a constant act of suppression of those whose viewpoints

are different. This can hardly describe “peace” or form a reasonable basis to force the

opinion of the minority.

C. Compulsory Union Fees Are an Undue Burden on Speech

“The distinction between laws burdening and laws banning speech is but a matter of

degree. The government’s content-based burdens must satisfy the same rigorous scrutiny as

its content-based bans.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000). In

Citizens United v. FEC, the Court rejected the idea that a statute limiting speech could be

saved through an interpretation “that force[s] speakers to retain a campaign finance

attorney” to interpret “an amorphous regulatory interpretation.” 558 U.S. 310, 324 (2010).

“Prolix laws chill speech for the same reason that vague laws chill speech.” Id. If protecting

speech against a statute requires “substantial litigation over an extended time, . . . the


45

interpretive process itself would create an inevitable, pervasive, and serious risk of chilling

protected speech.” Id. at 326-27.

As Justice Black predicted, that language precisely describes what Hanson, Street, and

Abood inflicted upon employees who object to a union’s agency fee calculation. The process

used by the Union here is especially worthy of censure, and an undue burden necessarily

exists in all of the line-drawing cases that Justice Black described in Machinist v. Street, 367

U.S. 740, 795-96 (1961).

The major problem is vague standards that compel ever more litigation by employees

seeking to protect their rights. In Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991), the

Justices had trouble deciding what was protected speech and what was not. A map is needed

to determine at what point Justice Blackmun wrote for the Court or for a plurality. Id. at 511.

In 1984, the Court in Ellis v. Railway Clerks wrote that “[t]he expenses of litigation not having

such a connection with the bargaining unit are not to be charged to objecting employees.”

466 U.S. 435, 453 (1984). Seven years later, the Court in Lehnert was “split into three

irreconcilable factions” as to the chargeability of litigation. Locke v. Karass, 555 U.S. 207, 208

(2009). Eighteen years after Lehnert, the Court decided litigation expenses incurred outside

the bargaining unit were chargeable. Id. at 219-20.

In Board of Regents v. Southworth, 529 U.S. 217 (2000), the Supreme Court considered

applying its procedures for resolving union fee disputes to university student fee disputes.

The Supreme Court agreed that compulsory union fee precedents were applicable. Id. at 231.

However, the Court concluded that the remedy applied in the union fee cases was too

complex for student fee cases.


46

Showing great candor, the Court noted that even in dealing with the functions of

labor unions, “whose functions are, or so we might have thought, well known and

understood,” and even after a “long history” of judicial involvement “we have encountered

difficulties in deciding what is germane [meaning chargeable to employees] and what is not.”

Id. at 232. The Court concluded:

[D]ifferent Members of the Court reached varying conclusions regarding what expressive activity was or was not germane to the mission of the [union]. If it is difficult to define germane speech with ease or precision where a union . . . is the party, the standard becomes all the more unmanageable in the public university setting . . . .

Id. Just this year, the Supreme Court admitted that “the Court has struggled repeatedly with

this issue.” Harris v. Quinn, 134 S. Ct. 2618, 2633 (2014).

The Workers’ Appendix includes the declaration of Emily Pitts Dixon, the former

office manager and legal records custodian at the National Right to Work Legal Defense

Foundation (“Foundation”). All of the union fee challenge cases decided by the U.S.

Supreme Court within the last forty years were funded by the Foundation. The Foundation

provided the lawyers and support staff for the plaintiff employees who challenged their

union’s fee calculations.

The Foundation kept records of the time involved, and the results are staggering. Ellis

was filed in 1973 and decided by the Supreme Court in 1984. It consumed 5,922.90 attorney

hours and 6,637.60 hours of support staff work. CWA v. Beck, 487 U.S. 735 (1988), was filed

in 1976 and decided by the Supreme Court in 1988. It consumed 4,502.40 hours of attorney

work, and 2,030.20 hours of support staff work. The panel decision, which was superseded

by an en banc decision, described the litigation as “4,000 pages of testimony, the introduction


47

of over 3,000 documents, and innumerable hearings and adjudication of motions.” Beck v.

CWA, 776 F.2d 1187, 1194 (4th Cir. 1985), superseded, 800 F.2d 1280 (4th Cir. 1986), aff’d,

487 U.S. 735 (1988). Lehnert was filed in 1978 and decided by the Supreme Court in 1991. It

consumed 4,475.80 hours of attorney work, and 1,875.75 hours of support staff work.

Declaration of Emily Pitts Dixon (“Dixon Decl.”), App. at 112 et seq.

Belhumeur v. Labor Relations Comm’n, 735 N.E.2d 860 (Mass. 2000), is the most recent

Foundation-supported case broadly challenging a union’s fee calculations. That case involved

the National Education Association, the largest labor union in the United States. It was filed

in 1988 and concluded in 2004. It consumed 8,058.40 attorney hours, 7,177.30 support staff

hours, $161,680.80 in court costs, expert fees and travel expenses, and 5,019.44 hours of

Westlaw research. The transcript costs in Belhumeur were nearly $27,000, all to help determine

the proper division of a $300 compulsory union fee for dissenting teachers. Dixon Decl., Ex.

3, p. 2-3, App. at 134-35.

In Citizens United, the Court held that when a citizen is required to engage in complex

and prolix litigation to vindicate speech, the statute creating such a burden cannot stand. 558

U.S. at 324-27. Playboy Entertainment Group held that “[e]rror in marking [the] line” between

protected and unprotected speech “exacts an extraordinary cost.” 529 U.S. at 817. The

results are in, and the experiment requiring employees to object and challenge a union’s fee

calculations to protect their political autonomy has failed. The result is a system in which the

Supreme Court has had a difficult time agreeing on the applicable standards, and the cost of

sorting through union expenses is financially ruinous and prohibitive for individual

employees. The line between protected and unprotected speech in the union dues context is


48

both uncertain in the drawing and too expensive in the purchase to surpass First

Amendment scrutiny.

D. Compulsory Union Fees Are a Prior Restraint on Speech

In the earlier discussion about whether consent can be presumed, supra pp. 17-30, the

prior restraint discussion dealt with the Union’s unilateral decision dividing the dues dollar

between bargaining and politics. That discussion should not obscure the fact that 100

percent of Union dues represent speech. The First Amendment protects opinions on all

subjects, not just politics, and these other subjects (such as bargaining) are entitled to “full

First Amendment protection.” Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).

Here, the Union applies its governmental authority to collect the entire dues amount,

and then, in the role of government censor, unilaterally determines which part of the

Workers’ speech will be protected (the amount returned) and which will not (the amount

retained by the Union). No hearing is permitted at this point. The Workers, of course, can

never “take back” the speech the Union has already voiced. The best they can do is chase

after the Union in some legal forum to recover the amount unlawfully collected or used. The

chase, as discussed in the prior section, comes at a very high price and, therefore, restrains

speech to a much greater degree than anything involved in Watchtower Bible & Tract Society of

New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002).

E. Compulsory Union Fees Constitute Speaker Discrimination

The First Amendment does not allow discrimination based on the identity of the

speaker, Citizens United, 558 U.S. at 341, or permit limitations based on the identity of the

interests represented by the speaker. Id. at 347; Sorrell v. IMS Health, Inc., __ U.S. __, 131 S.


49

Ct. 2653, 2664 (2011). Just as it is a prior restraint for government to turn over to a union

the role of determining what speech is protected (i.e., the political amount), so it is

impermissible for it to prefer Union-side speech by allowing the Union to initially collect the

dues amount from nonmembers and initially determine the permissible parameters of its

own speech and that of nonmembers. Even laws that appear to be neutral as to content and

speaker can burden one side of speech by the procedures employed. Sorrell, 131 S. Ct. at

2664.

CONCLUSION

For the foregoing reasons, the Workers ask this Court to grant them summary

judgment and award them (and class members, if certified) all their requested relief on all

Counts of their Amended Complaint. The Union’s Motion for Summary Judgment should

be denied.

DATED: September 19, 2014 Respectfully submitted, s/ Jason E. Winford

Jason E. Winford Texas Bar No. 00788693 [email protected] David E. Watkins Texas Bar No. 20922000 [email protected] JENKINS & WATKINS A Professional Corporation 2626 Cole Avenue, Suite 200 Dallas, Texas 75204-0817 Tel: 214-378-6675 Fax: 214-378-6680

Bruce N. Cameron (pro hac vice) [email protected]


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Milton L. Chappell (pro hac vice) [email protected] Glenn M. Taubman (pro hac vice) [email protected] Nathan J. McGrath (pro hac vice) [email protected] c/o National Right to Work Legal Defense Foundation, Inc. 8001 Braddock Road, Suite 600 Springfield, Virginia 22160

Tel: 703-321-8510 Fax: 703-321-9319

Attorneys for Plaintiffs and Class Members

CERTIFICATE OF SERVICE I hereby certify that on the September 19, 2014, I electronically filed the foregoing

document in compliance with Local Rule 5.1. Pursuant to Local Rule 5.1(d), delivery of the notice of electronic filing constitutes service under Fed. R. Civ. P. 5(b)(2)(D) on each party who is a registered user of the Court's electronic case-filing system. I hereby certify that I have served all parties electronically or by another manner authorized by the Federal Rule of Civil Procedure 5(b)(2). s/ Jason E. Winford


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