Lehnert v. Ferris Faculty Association/Concurrence Kennedy

Justice KENNEDY, concurring in the judgment in part and dissenting in part.

I join all except for Part III-C of Justice SCALIA's opinion. With respect to the strike preparation activities, I agree with the majority that these are indistinguishable in substance from other expenses of negotiating a collective bargaining agreement. I would find, under Justice SCALIA's test, that it was reasonable to incur these expenditures to perform the duties of an exclusive representative of the employees in negotiating an agreement.

The opinion for the majority discerns an altogether malleable three-part test for the chargeability of expenses. The test is so malleable that, at Part IV-B, Justice BLACKMUN can choose to draw different lines with respect to expenses of affiliates, lines with no principled basis. Justice BLACKMUN removes litigation and lobbying from the scope of the Court's holding that a local bargaining unit may charge employees for their pro rata share of the costs associated with "otherwise chargeable" expenses of affiliate unions. This makes little sense if we acknowledge, as Justice SCALIA articulates, ante, at 559-560, that we permit charges for affiliate expenditures because such expenditures do provide a tangible benefit to the local bargaining unit, in the nature of a prepaid but noncontractual consulting or legal services plan. Will a local bargaining unit now be permitted to charge dissenters for collective bargaining-related litigation so long as the unit enters into a contractual arrangement or insurance policy with its affiliate? If so, Justice BLACKMUN's distinction has little meaning. If not, then why not, for I discern no additional burden on free speech from such an arrangement, so long as the litigation is undertaken in the course of the union's duties as exclusive bargaining representative. I would draw the same substantive line for litigation and lobbying, whether it is funded through an arrangement with an affiliate or by an individual unit.

In both the discussion of extra-unit litigation, at Part IV-B, and of conventions, at Part IV-E, Justice BLACKMUN places unfounded reliance upon Ellis v. Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984), where we disallowed some expenses for extra-unit litigation, and allowed other expenses for a union convention. Ellis, however, contains no discussion of whether a local bargaining unit might choose to fund litigation which is "a normal incident of the duties of the exclusive representative," 466 U.S., at 453, 104 S.Ct., at 1895, through a cost sharing arrangement under the auspices of the affiliate. Also, as Justice SCALIA indicates, the conventions in the case before us were political events in large part, and cannot support an analogy to the quadrennial convention at issue in Ellis. We should avoid establishing rigid categories such as conventions (chargeable) and extra-unit litigation (non-chargeable), but rather examine whether each expense was reasonably or necessarily incurred in the performance of the union's statutory duties as exclusive bargaining representative.