Housing Authority of Louisville v. Service Employees International Union, Local 557

LAMBERT, Justice,

dissenting.

The comprehensive issue presented is whether the employer (HAL) must withhold union dues from the wages of protesting nonunion members without first requiring the union to precisely establish the cost which each employee should bear for nonpolitical collective bargaining representation. It is extraordinary to require any person to pay dues to an organization whose membership he rejects, but Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), authorizes just such involuntary payment of union dues to the extent of fair-share costs.

In Hudson, the Court held that before any fair share charges could be levied, the union must provide “an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amounts reasonably in dispute while such challenges are pending.” Hudson, 475 U.S. at 310, 106 S.Ct. at 1077. In the present case, the arbitrator made a finding that the fair share fees were the same as union dues because there was no proof to the contrary.1 In so doing, the arbitrator excused the Union of its burden to prove proper use of the funds. The finding contradicts the requirement of Hudson, which provides that “[t]he Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.” Hudson, 475 U.S. at 305, 106 S.Ct. at 1075 (quoting Abood v. Detroit Board of Education, 431 U.S. 209, 244, 97 S.Ct. 1782, 1804, 52 L.Ed.2d 261 (1977)). The Court forcefully declared that “[f|or, whatever the amount, the quality of respondents’ interest in not being compelled to subsidize the propagation of political or ideological views that they oppose is clear.” Hudson, 475 U.S. at 305, 106 S.Ct. at 1075. Because there was no showing by the Union that the fair share fees were not used to advance political or other ideological activities, the award of fees should be invalidated.

Although courts must defer to an arbitrator’s award as long as it is a rational, permissible interpretation of the collective bargaining agreement, blind deference should not result when the right of workers to avoid union membership is defeated by calling full union dues fair share fees. Non-union employees have a right to avoid supporting union sponsored political speech. Their decision to not join the union is a rejection of the political and social activities of that organization. While nonunion employees must pay their fair share for collective bargaining services, they should not be required to become full subsidizers of a political organization they oppose.

Moreover, I disagree with the majority’s position that the Housing Authority of Louisville (HAL) did not have standing to litigate this matter. To establish standing, a party must assert a real, direct, present and substantial interest in the subject matter of the controversy. The facts of each case are vital to a determination of standing. See City of Louisville v. Stock Yards Bank & Trust, Ky., 843 S.W.2d 327 (1992); Winn v. First Bank of Irvington, Ky.App., 581 S.W.2d 21 (1978). In the instant case, HAL asserts that payment to the Union of money which was the equivalent of union dues for all non-union employees was an infringement on the constitutional rights of those employees. The majority asserts that “it is only individual employees of HAL who have standing to raise any alleged illegality concerning the withholding of funds in lieu of union dues.” Unrecognized by this is HAL’s interest in preventing an unconstitutional act which, in practice, forces its non-union employees to become defacto members of the Union. Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). Additionally, HAL has standing by virtue of its status as custodian of the funds. As stakeholder between the Union which demanded withholding of dues and the employ*699ees who demanded that there be no withholding, HAL was in the position of bearing ultimate liability in the event it erred. In my view this is ample to confer standing to resist the withholding on behalf of the employees.

For the foregoing reasons, I respectfully dissent.

STEPHENS, C.J., joins this dissenting opinion.

. The arbitrator determined that "[i]n the absence of any proof to the contrary, the fees paid by the non-union members of the collective bargaining unit were for collective bargaining, the handling of grievances, and contract administration, and the terminology 'union dues’ was used to describe these fees as well as the dues paid by the union members of the bargaining unit."