dissenting:
I dissent. Plaintiffs contend that use of their agency shop fees for purposes not directly related to collective bargaining, grievance adjustment, or contract administration violates both the first amendment and § 8(a)(3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a). I conclude that the statutory claim fails because § 8(a)(3) cannot fairly be read to impose such limits on a union’s use of the fees it collects. I further conclude that the first amendment claim fails because the defendant unions’ use of plaintiffs’ fees does not constitute state action. I would therefore reverse and direct entry of judgment for the defendants based on plaintiffs’ failure to state a claim upon which relief can be granted.
I. Statutory Claim
Plaintiffs argue that the unions’ use of their agency shop fees violates an implied right under § 8(a)(3) of the NLRA “not to be required to pay money, over objection, for [the union’s] expenses not directly related to collective bargaining, contract administration and grievance processing.” Brief for Appellee at 32. This construction of the statute finds no support in the express language of the statute. Section 8(a)(3) is part of the subsection listing employers’ unfair labor practices;1 plaintiffs *1215read into the provision a limit on unions, the violation of which is not an unfair labor practice.2 Nor does this construction find any explicit support in legislative comment on the meaning of the subsection. Plaintiffs nevertheless argue that their construction of § 8(a)(3) has the virtue of letting us avoid the state action question presented here. Before reaching a difficult constitutional question, they note, we must first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided. International Association of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1789-90, 6 L.Ed. 1141 (1961).
I conclude that plaintiffs’ proposed interpretation of § 8(a)(3) is not fairly possible, and that plaintiffs therefore have no statutory claim. Both the language of § 8(a)(3) and its legislative history show that Congress did not intend to limit the use of agency shop fees under the NLRA.3 Further, the history and purpose of this provision differs from the history and purpose of the agency shop provision in the Railway Labor Act; thus the Railway Labor Act’s limits on fee use should not be engrafted onto the NLRA’s § 8(a)(3).
Congress enacted § 8(a)(3) as part of the National Labor Relations Act of 1935, 29 U.S.C. § 141 et seq. That Act permitted closed shop agreements — those requiring union membership as a precondition to employment — unless such agreements were prohibited by state law. See Colgate-Palmolive-Peet Co. v. National Labor Relations Board, 338 U.S. 355, 361, 70 S.Ct. 166, 169-70, 94 L.Ed. 355 (1949). The Labor Management Relations Act of 1947 (the Taft-Hartley Act) amended § 8(a)(3) to prohibit the closed shop. Section 8(a)(3), however, continued to' permit agency shop agreements — those requiring all employees to pay the equivalent of dues — unless prohibited by state law.
In enacting the Taft-Hartley Act, Congress explicitly considered the union practice of spending dues and fees for various purposes not directly related to collective bargaining. One of the prominent witnesses at the congressional committee hearings, the movie director Cecil B. DeMille, testified on this issue, using the example of his own experiences:
In my case the right of political freedom was invaded [by the union] when I was given the choice between working or paying a political assessment ... Because I refused to pay a political assessment, I was deprived of the right to work.
Labor Relations Program: Hearings on S. 55 and SJ.Res. 22 Before the Committee on Labor and Public Welfare, 80th Cong., 1st Sess. 801, 797 (1947), cited in S.Rep. No. 105, 80th Cong., 1st Sess. 7 (1947). DeMille objected strenuously to such exactions. He suggested that permitting agency shop agreements would be sufficient to solve the “free rider” problem of employees benefiting from union activity without contributing to its cost. Such a provision, he urged, should “provide that the service charge must be fair and not excessive.” He further urged that “[political assessments and improper levies should be absolutely banned in any case.” Id. at 806.
*1216Congress acknowledged the problem of the worker who “has been compelled to contribute to causes and candidates for public office to which he was opposed.” H.R.Rep. No. 245, 80th Cong., 1st Sess. 4 (1947) (“House Report”). To remedy this problem the initial House bill proposed two solutions. First, the bill declared that “[m]embers of any labor organization shall have the right to be free from unreasonable or discriminatory financial demands of such organization.” H.R. 3020, 80th Cong., 1st Sess. § 7(b) (1947) (emphasis added). To implement this policy, the bill made it an unfair labor practice for a union
to impose initiation fees in amounts in excess of $25 per member unless the Board shall find that initiation fees greater than that amount are reasonable under the circumstances; or to impose any dues or general or special assessments that are not uniform upon the same class of members, or are in excess of such reasonable amounts as the members thereof, whom such organization represents or seeks to represent as a representative under section 9, by a majority of those voting, after due notice to the membership, shall authorize ...
H.R. 3020, 80th Cong., 1st Sess. § 8(c)(2) (1947) (emphasis added). The House Report suggested that “[w]hat is reasonable will depend upon the size of the organization, the wage rates of its members, the benefits it confers, the stability of membership and of employment in the trades and industries in which the members work and other relevant factors.” House Report at 81.
Second, the bill amended the Federal Corrupt Practices Act to make it unlawful for a union “to make a contribution or expenditure in connection with” any political election, primary or political convention to select candidates. H.R. 3020, 80th Cong., 1st Sess. § 304 (1947). This provision meant that unions could use direct contributions for election activities, but only if “the dues which [employees] pay into the union treasury are not used for such purpose.” 93 Cong.Rec. 6440 (1947) (statement of Sen. Taft), quoted in United States v. CIO, 335 U.S. 106, 119, 68 S.Ct. 1349, 1356, 92 L.Ed. 1849 (1948).
The House bill’s attempt to monitor the “reasonableness” of union fees was part of a general proposal to enact a “bill of rights” to limit union power. See 93 Cong. Rec. 3581 (statement of Rep. MacKinnon). This proposal met with extensive criticism. The House Minority Report faulted the bill’s attempt to subject unions “to an external control of purely internal functions which is without parallel when compared to any other form of voluntary association.” The report noted in particular the “extreme restriction of u.j internal activities of the union” imposed by such provisions as “the regulation of initiation fees and dues.” These restrictions, the Minority Report asserted, would be both unfair to unions and unworkable in practice:
These regulatory measures are not an appropriate subject for Federal legislation. Attempts by the Board to secure these rights for employees and union members and to regulate these activities would be attempting the impossible, i.e., attempting a regulation of the infinite details involved in the internal functioning of thousands of trade-unions having millions of members. No standards are provided in the bill to guide the Board, and none exist in fact. For years most of our State courts have carefully refrained from such interference in the internal affairs of unions, realizing both the encroachment on individual liberty involved in thus attempting to regulate the inner functioning of voluntary associations and the sheer impossibility of doing so effectively, wisely, and equitably.
House Report at 76 (minority) (emphasis added). See also 93 Cong.Rec. 3586 (1947) (statement of Rep. Powell). Those opposing the “bill of rights” provisions, as these excerpts show, preferred a hands-off policy for both agencies and courts.
The provisions regulating the “reasonableness” of dues, § 7(b) and § 8(c)(2), did not survive in the bill agreed on by the
*1217Conference Committee. Instead, the final bill added § 8(b)(5), which made it an unfair labor practice for unions to require initiation fees that the National Labor Relations Board “finds excessive or discriminatory under all the circumstances.” 29 U.S.C. § 158(b)(5). The Senate conferees refused to agree to the House bill’s “bill of rights” provisions,
since they felt that it was unwise to authorize an agency of the Government •to undertake such elaborate policing of the internal affairs of unions ... without further study of the structure of unions. In the opinion of the Senate conferees the language [in § 8(a)(3) ] which protected an employee from losing his job if a union expelled him for some reason other than nonpayment of dues and initiation fees, uniformly required of all members, was considered sufficient protection.
93 Cong.Rec. 6601 (1947) (statement of Sen. Taft) (emphasis added).4
Some congressmen still worried that even the new provision, § 8(b)(5), “would require the Board to determine whether union fees were excessive or discriminatory.” 93 Cong.Rec. 6662 (1947) (statement of Sen. Murray). “For example,” one senator suggested, “in determining whether a particular fee was excessive the Board may have to decide ... whether expenditures authorized by the union such as donations to charity were proper.” Id. at 6662. See also id. at 6655, 6673. Senator Taft, the sponsor of the bill, answered such comments with the observation that “[t]he express language of [§ 8(b)(5)] shows how unfounded such an argument is.” The provision, he noted, “is limited to initiation fees and does not cover dues.”5 93 Cong. Rec. 7001 (1947). The purpose of § 8(b)(5), as the conferees made clear, was simply to prevent unions from continuing their closed shop monopoly of certain trades by charging exorbitant initiation fees to new employees who were not already union members. See 93 Cong.Rec. 6601, 7001 (1947) (statements of Sen. Taft).
Of the proposed provisions governing the use of regular dues and fees, only § 304 survived in the final bill.6 This legislative history makes it clear that Congress explicitly delineated the types of union dues collection that it deemed impermissible: exorbitant initiation fees and fees spent for political elections. Congress went this far and no farther; it excluded no other areas of expenditure from the union’s power to collect dues under a union security agreement. And “[a]s a matter of statutory construction, the authorities appear uniform in holding that an explicit exclusion *1218appearing in and specifically limited to one provision of a statute and not included in another provision of the same statute logically implies that the exclusion is inapplicable as to the latter provision.” League to Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1171 (9 Cir.), cert. denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979).
We cannot entertain a claim alleging a union’s inappropriate use of funds without contradicting Congress’ intent in the TaftHartley Act to avoid general external supervision of internal union matters. Those in Congress who opposed external supervision of union dues collection argued that it was invasive and impractical. Here the proceedings exemplify precisely the situation that Congress decided to avoid in defeating the amendment to supervise union dues collection. The proceedings for this single union have already required over 9 years, over 4,000 pages of testimony, over 3,000 documents, and over 50 motions filed in the district court. Two district judges, a special master, batteries of lawyers, and countless witnesses, stenographers and clerks have contributed their services to this project. Even now the accounting remains unfinished, as the majority has ordered a remand. This exhaustive inquest, into every jot and tittle of a union’s finances and activities, is not what Congress intended in passing the Taft-Hartley Act.
The argument that § 8(a)(3) of the NLRA limits the use of agency shop fees relies heavily on the established interpretation of § 2, Eleventh of the Railway Labor Act (RLA), 45 U.S.C. § 152.7 The Supreme Court has construed that provision to deny a union authority to spend dissenting employees’ agency fees for purposes other than collective representation. See Street, 367 U.S. at 768-69, 81 S.Ct. at 1799-1800; Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466 U.S. 435, -, 104 S.Ct. 1883, 1892, 80 L.Ed.2d 428, 442 (1984). I do not agree that this interpretation of the RLA controls our interpretation of § 8(a)(3). “Even rough analogies [between the RLA and the NLRA] must be drawn circumspectly, with due regard for the many differences between the statutory schemes.” Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969) (footnote omitted). Here, despite the similarity of certain phrases in the RLA’s § 2, Eleventh and the NLRA’s § 8(a)(3), careful comparison of the NLRA and the RLA shows that the two provisions differ in terms of language, legislative history, and statutory purpose. The settled interpretation of the RLA therefore does not bind us here.
Congress enacted § 2, Eleventh in 1950, when it amended the Railway Labor Act. The Railway Labor Act as amended in 1934, unlike the National Labor Relations Act of 1935, prohibited closed and union shop agreements. At the time of the 1934 amendments, railroad unions urged Congress not to prohibit all union security agreements in their industry. Only one of the standard unions, however, had any se*1219curity agreements in its contracts at that time; the rest remained committed to the principle of voluntarism despite their support for allowing such agreements. Street, 367 U.S. at 750-51, 753 n. 8, 81 S.Ct. 1790-91, 1791-92 n. 8. Given this “strong and long-standing tradition of voluntary unionism,” and the opposition of some legislators to the union shop, Congress embraced a “policy of complete freedom of choice of employees to join or not to join a union.” Id. at 750, 81 S.Ct. at 1790.
The RLA ban on union security agreements continued until 1950, when Congress amended the Act to authorize union shop agreements whether or not permitted by state law. In pressing for this amendment, the railroad unions argued that it was “essentially unfair for nonmembers to participate in the benefits of [labor unions’ activities] without contributing anything to the cost.” Railroad witnesses emphasized that their collective bargaining costs were higher than those for other industries, since the RLA’s complex administrative machinery “requires expense which is not- known to unions in outside industry.” Hearings on H.R. 7789, House Committee on Interstate and Foreign Commerce, 81st Cong.2d Sess. 10 (statement of George M. Harrison, spokesman for Railway Labor Executives’ Association), quoted in Street, 367 U.S. at 761-62, 81 S.Ct. at 1796-97. “This argument was decisive with Congress.” Street, 367 U.S. at 762, 81 S.Ct. at 1796.
The legislative history of the 1950 RLA amendment is ambiguous on the issue of limiting unions’ use of agency shop fees. Indeed, as the Supreme Court has noted in Abood v. Detroit Board of Education, 431 U.S. 209, 232, 97 S.Ct. 1782, 1798, 52 L.Ed.2d 261 (1977), its opinion in Street “embraced an interpretation of the Railway Labor Act not without its difficulties.” Two congressional committee witnesses, both railroad company representatives, did complain that the proposed RLA amendments would place no limits on unions’ use of dues. See Ellis, 80 L.Ed.2d at 440 n. 9; Street, 367 U.S. at 767 n. 16, 81 S.Ct. at 1799 n. 16. “That Congress enacted [§ 2, Eleventh] over these objections arguably indicates that it was willing to tolerate broad exactions from objecting employees.” Ellis, 80 L.Ed.2d at 440.
The Supreme Court in Street nevertheless read into § 2, Eleventh a limitation on the railroad unions’ power to use agency shop fees. In doing so, the Court pointed out that § 2, Eleventh was revised to meet the objections that the RLA as amended would not adequately protect the free speech rights of dissenting employees. Street, 367 U.S. at 765-66, 81 S.Ct. at 1798-99. The railroad unions responded to the concerns voiced about such employees by suggesting the addition of a proviso to prevent job loss for “employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, fees, and assessments uniformly required as a condition of acquiring or retaining membership.” Railway Labor Act Amendments: Hearings on H.R. 7789 Before the Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess. 247 (“House Hearings”), quoted in Street, 367 U.S. at 765, 81 S.Ct. at 1798. The union president presenting this proviso, the Street opinion notes, suggested that the revision “remedies the alleged abuses of compulsory union membership as claimed by the opposing witnesses, yet makes possible the elimination of the ‘free rider’ and the sharing of the burden of maintenance by all of the beneficiaries of union activity.” House Hearings at 253, quoted in Street, 367 U.S. at 765-66, 81 S.Ct. at 1798-99 (statement of George M. Harrison). To this protective proviso Congress “affixed ... additional limitations.” Street, 367 U.S. at 766, 81 S.Ct. at 1799.
The Supreme Court discerned in these revisions of § 2,. Eleventh a “congressional concern over possible impingements on the interests of individual dissenters from union policies.” This legislative history convinced the Court that
Congress did not completely abandon the policy of full freedom of choice embodied in the 1934 [Railway Labor] Act, but *1220rather made inroads on it for the limited purpose of eliminating the problems created by the “free rider.” That policy survives in § 2, Eleventh in the safeguards intended to protect freedom of dissent.
Id. at 767, 81 S.Ct. at 1799. The Court has found that a union’s use of compelled dues for purposes other than its collective bargaining duties does not serve the “limited purpose” of eliminating the free rider problem, and is therefore an unjustifiable inroad on the policy of full freedom of employee choice violating § 2, Eleventh. See id. at 768-69, 81 S.Ct. at 1799-1800; Ellis, 80 L.Ed.2d at 441-42.
The legislative history and purpose of the NLRA and Taft-Hartley Act do not permit the same interpretation of § 8(a)(3). First, the NLRA never embraced the 1934 RLA’s policy of “complete freedom of choice of employees to join or not to join a union” that “survives in § 2, Eleventh.” Street, 367 U.S. at 750, 767, 81 S.Ct. at 1799. Rather, the NLRA’s policy has been to leave the question of union shop agreements to state law. Hence the settled interpretation of § 2, Eleventh — based on the underlying policy of the 1934 Railway Labor Act where the statute and legislative history are ambiguous — does not control interpretation of a provision in the NLRA, which does not share the 1934 Railway Labor Act’s underlying policy.
If the legislative purposes behind § 8(a)(3) and § 2, Eleventh were identical, one would expect that the Supreme Court in Street would have looked to the NLRA for guidance in interpreting § 2, Eleventh. The Street opinion, however, does not significantly rely on or discuss either the NLRA or § 8(a)(3). Instead, it focuses on the distinctive features of the railroad industry and the Railway Labor Act in construing § 2, Eleventh.
Second, the Taft-Hartley Act’s legislative history, unlike the RLA’s, is unambiguous on the issue of limiting the use of union shop fees. Congress explicitly considered the problem of unions using compelled fees when it enacted the Taft-Hartley Act in 1947. Its response was to prohibit union spending in the particularly sensitive area of federal elections. It explicitly rejected amendments requiring more thoroughgoing supervision of union shop fees, however, as unjustifiably intrusive and unmanageable. We should respect this Congressional intent in construing § 8(a)(3). “We cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.” United States v. Locke, - U.S. -, -, 105 S.Ct. 1785, 1793-95, 85 L.Ed.2d 64 (1985), quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed.2d 1265 (1933).
I reject the argument that § 8(a)(3) and § 2, Eleventh may not properly be construed differently. The argument is grounded on remarks made by a few congressmen during the enactment of the RLA. But these remarks are only general comments about the similarity of the TaftHartley union security provisions, rather than explicit comparisons of § 8(a)(3) with the provisions of the RLA. Plaintiffs quote Senator Taft as declaring during debate that the bill “inserts in the railway mediation law almost the exact provisions ... of the Taft-Hartley law, so that the conditions regarding the union shop and the check-off are carried into the relations between railroad unions and railroads.” In fact, Senator Taft commented:
In effect, the bill inserts in the railway mediation law almost the exact provisions, so far as they fit, of the Taft-Hartley law ...
96 Cong.Rec. _ (1950), reprinted in Comm, on Labor and Public Welfare, 93d Cong., 2d Sess., Legislative History of the Railway Labor Act, as Amended (1926 through 1966) at 1134 (1974).
The conclusion that § 8(a)(3) and § 2, Eleventh are identical in purpose should not rest on such ambiguous comparisons. Indeed, comparing the language of § 8(a)(3) and § 2, Eleventh reveals several obvious differences. Section 8(a)(3) states what employers may do in making agency shop agreements; § 2, Eleventh states *1221what employers and unions may do. Section 8(a)(3) prohibits employer discrimination against an employee if the employer has reasonable grounds for believing that an employee was denied union membership for an impermissable reason; § 2, Eleventh has no such explicit provision. Section 8(a)(3) allows termination for an employee’s failure to pay “the periodic dues and the initiation fees” uniformly required from employees; § 2, Eleventh speaks instead of “periodic dues, initiation fees, and assessments (not including fines and penalties).” Section 8(a)(3) agency shop agreements may give employees 30 days to join the union; § 2, Eleventh provides for 60 days.
I also question placing much reliance on RLA legislative history to interpret a provision of the Taft-Hartley Act. It is better to focus on the history of the Act one is trying to interpret, rather than on a few remarks made during the debate on an entirely different bill. To me, the history of the Taft-Hartley Act itself is a surer guide to its meaning than general comments made years later, and I think that it supplies the answer to the issue of statutory construction that this case presents.
II. Constitutional Claim
Essential to plaintiffs’ first amendment claim is a finding of state action.8 “It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state.” Hudgens v. NLRB, 424 U.S. 507, 513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976). Thus the challenged use of agency fees is subject to constitutional scrutiny only if it is conduct “fairly attributable” to state or federal government. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). Plaintiffs do not argue that this conduct is fairly attributable to state government, and do not persuade me that it is fairly attributable to the federal government.
Defendants’ use of agency fees is not fairly attributable to the federal government because it fails to satisfy the Supreme Court’s two-part standard for determining the existence of state action. Under this standard, “the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.” Lugar, 457 U.S. at 937, 102 S.Ct. at 2753. Further, “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Id. at 937, 102 S.Ct. at 2754. These inquiries overlap to some extent, reflecting “the necessarily fact-bound inquiry” that confronts us. Id. at 939, 102 S.Ct. at 2755.
The first step of the Lugar inquiry requires a determination of whether the alleged deprivation results from “the exercise of a right or privilege having its source in state authority.” Lugar, 457 U.S. at 939, 102 S.Ct. at 2755. The agency shop agreement here, and the attendant use of the plaintiffs’ compelled fees, do not result in any direct way from the exercise of such power. Nothing in the NLRA compels the adoption of an agency shop agreement; the Act simply provides that federal law does not “preclude” such an agreement between an employer and its employees’ bargaining representative. 29 U.S.C. § 158(a)(3). Nor does the Act preempt contrary state law; it merely permits agency shop agreements where there is no state “right to work” law. 29 U.S.C. § 164(b). As the Senate Report on the original NLRA noted, “the bill does nothing to facilitate closed-shop agreements or to make them legal in any *1222State where they may be illegal.” S.Rep. No. 573, 74th Cong., 1st Sess. 11-12 (1935), quoted in S.Rep. No. 105, 80th Cong., 1st Sess. 6 (1947); see also Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U.S. 301, 308-10, 69 S.Ct. 584, 588-89, 93 L.Ed. 691 (1949). The Taft-Hartley Act provided no significant encouragement to enter into union security agreements either, banning the closed shop and letting state law continue to determine the legality of the agency shop.
The NLRA's policy of neutrality regarding agency shop agreements does not make entering into such an agreement an exercise of a government-created right. “[I]t is well settled that a state’s mere authorization of private conduct does not justify a finding of state action.” Kolinske v. Lubbers, 712 F.2d 471, 478 (D.C.Cir.1983) (holding that NLRA’s agency shop provision does not satisfy either part of Lugar test); see also Price v. International Union, U.A.W., No. H-84-1221 (D.Conn. Apr. 11, 1985) (same).
The only right exercised here that can in any way be said to “cause” the alleged deprivation is the right of an exclusive bargaining representative to make a collective agreement with an employer that is binding on all employees. The exercise of this exclusive bargaining power, it is true, “causes” the alleged deprivation in the limited sense that, but for such power, the union would be less likely to secure an agency shop agreement and thus plaintiffs’ fees. This causal link, however, is too attenuated to attribute state action to defendants here, as the second part of the Lugar approach makes clear.
The second Lugar inquiry is whether an NLRA union can “fairly be said to be a state actor.” “Something more” is required to convert a private party into a state actor than the exercise of statutory rights. Cf. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 436 U.S. 149 (1978) (warehouseman’s exercise of statutory right to sell goods on which storage charges not paid was not state action). Otherwise, “private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.” Lugar, 457 U.S. at 937, 102 S.Ct. at 2754.
Monopoly status, which is what the right to be exclusive bargaining agent gives the union, is by itself insufficient to make a private party’s acts state action. This issue was settled in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The Supreme Court there held that government-conferred monopoly power alone was insufficient to establish state action in the context of a due process claim against an electrical utility. Id. at 351-52, 95 S.Ct. at 453-54. The Court refused to find state action in suits against state-created monopolists where “there was insufficient relationship between the challenged actions of the entities involved and their monopoly status.” Id. at 352, 95 S.Ct. at 454.
The majority sees in the unions’ monopoly status a nexus with the challenged actions sufficient to justify a finding of state action. It notes in particular the Supreme Court’s recognition of the extent of union power in Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 202, 65 S.Ct. 226, 232, 323 U.S. 192 (1944): “Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body____” See ante at p. 1207. This was exactly the argument made by the plaintiffs in United Steelworkers of America v. Sadlowski, 457 U.S. 102, 102 S. Ct. 2339, 72 L.Ed.2d 707 (1982), but rejected by the Court. There plaintiffs challenged a union rule prohibiting nonmember contributions in union elections as, inter alia, state action violating the first amendment. The plaintiffs pointed to the monopoly power conferred on unions over a given employer’s job market. They argued, also citing Steele, that because of its exclusive bargaining power the union was “clothed with power not unlike that of a legislature which is subject to constitutional limitations____” Brief for Respondent Sadlowski at 48; see also Reply Brief for Petition*1223er Steelworkers at 9. The Court dismissed this argument in a footnote for lack of state action. Sadlowski at 121 n. 16, 102 S.Ct. at 2350 n. 16.
The existence of federal contract enforcement machinery in the NLRA is also insufficient to transform a union’s activity into state action. Thus the Supreme Court detected no state action in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). There plaintiffs challenged an enforceable collective bargaining agreement providing for affirmative action hiring. Before addressing plaintiffs’ Title VII challenge, the Court stated that the challenged plan “does not involve state action.” Id. at 200, 99 S.Ct. at 2726, cited in Sadlowski at 121 n. 16, 102 S.Ct. at 2350 n. 16; see also American Communications Association v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685-86, 94 L.Ed. 925 (1950) (“We do not suggest that labor unions which utilize the facilities of the National Labor Relations Board become Government agencies or may be regulated as such.”)
The lack of a sufficient nexus here between the government’s involvement and the private party’s challenged actions parallels the situation in Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982).9 There the Supreme Court rejected the argument that extensive government regulation and 90% subsidization of a private school for problem students made the school a state actor. Several employees claimed that firing them for criticizing school policy violated the First Amendment. The Court refused to find state action, even though the state’s continuing support of the school enabled it to limit the free speech of a certain portion of the labor force (teachers at the school). In finding no state action, the Court pointed to the interposed conduct of a private party exercising independent judgment; this judgment, rather than the government’s involvement, yielded the challenged action. Id. at 839-42, 102 S.Ct. at 2770-72.
Here the independent judgment of employees, employers, and unions separates the potential for union monopoly bargaining power conferred by the federal government from the alleged free speech deprivation. I do not think that Rendell-Baker can be distinquished on the ground that the instant case is one in which the parties act under the compulsion of federal law. Federal legislation has not compelled the establishment of unions, nor has it compelled or even encouraged the adoption of agency shop agreements, as shown above. Indeed, the NLRA does not compel the acceptance of any collective bargaining terms. See 29 U.S.C. § 158(d). Rather, the employees, employers, and unions make these choices.
The NLRA differs in its general policy of neutrality regarding agency shop agreements from the Railway Labor Act. This case is therefore distinguishable from Railway Employees Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), which is asserted to compel a finding of state action in this case. There the Supreme Court found in the RLA the “something more” required to convert a union into a state actor. In that case plaintiffs sued to enjoin enforcement of a union security agreement in Nebraska, where a right-to-work law prohibited labor agreements from requiring union membership. The Court found governmental action because the RLA pre-empted the state right-to-work law, and thus permitted the challenged union shop provision:
If private rights are being invaded, it is by force of an agreement made pursuant to federal law which expressly declares that state law is superseded ... In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed____
Id. at 232, 76 S.Ct. at 718. Because of the RLA’s federal preemption, the Court concluded, “[a] union agreement made pursu*1224ant to the Railway Labor Act has ... the imprimatur of the federal law upon it____” Id. at 232, 76 S.Ct. at 718 (emphasis added).
The basis for finding government action in Hanson — the federal imprimatur, or mark of approval, on agency shop agreements that the Supreme Court discerned in the preemption of all contrary state law — is lacking in the NLRA. The Court noted this distinction in Hanson itself:
The parallel provision in § 14(b) of the Taft-Hartley Act ... makes the union shop agreement give way before a state law prohibiting it.
Id. at 232 n. 5, 76 S.Ct. at 718. It noted the distinction again in Abood, emphasizing that federal preemption was the basis for finding government action:
Unlike § 14(b) of the National Labor Relations Act, 29 U.S.C. § 164(b), the Railway Labor Act preempts any attempt by a State to prohibit a union-shop agreement. Had it not been for that federal statute, the union-shop provision at issue in Hanson would have been invalidated under Nebraska law. The Hanson Court accordingly reasoned that government action was present____
Abood, 431 U.S. at 218 n. 12, 97 S.Ct. at 1791 n. 12 (emphasis added).
Lacking the preemption provision, the NLRA places no federal imprimatur on agency shop clauses. State law rather than federal law is “the source of power and authority for such agreements” under the NLRA. The rationale for finding federal government action in Hanson, then, does not support such a finding here. Most courts have therefore found that Hanson does not compel a finding of state action for an agency shop agreement made under the NLRA or an analogous state statute. See Kolinske v. Lubbers, 712 F.2d 471, 476 (D.C.Cir.1983); Reid v. McDonnell Douglas Corp., 443 F.2d 408, 410 (10 Cir.1971) (“[wjhatever the wisdom of this reasoning for the Railway Labor Act, it has no applicability to the National Labor Relations Act”); Linscott v. Millers Falls Co., 440 F.2d 14 (1 Cir.) (Coffin, J., concurring in judgment), cert. denied, 404 U.S. 872, 92 S.Ct. 77, 30 L.Ed.2d 116 (1971); Price, No. H-84-1221, slip op. at 11 (D.Conn. April 11, 1985); Pasillas v. Agricultural Labor Relations Board, 202 Cal.Rptr. 739 (Cal.App.1. Dist.1984) (following Kolinske and Reid in finding Hanson not to control state action question for state labor law patterned after NLRA). But see Seay v. McDonnell Douglas Corporation, 427 F.2d 996, 1003 (9 Cir.1970) (assuming without discussion that Hanson controls finding of state action in NLRA context); Linscott, supra (majority opinion).10
The other case asserted to be controlling is Abood. There employees challenged the agency shop clause in a public sector collective bargaining agreement. A state statute patterned on the NLRA authorized such a clause. The Court assumed that this public employment contract involved state action. It upheld the use of agency shop fees to support collective bargaining, but found the use of such fees for political activities unconstitutional.
*1225Abood. is distinguishable on the state action issue because it involved the state in the roles of both legislator and employer. See also Kolinske, 712 F.2d at 477 (holding Abood distinguishable). I do not read the statement in Abood that “differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights,” 431 U.S. at 232, 97 S.Ct. at 1798, as meaning that the differences between public- and private-sector bargaining do not translate into differences for state action purposes. Indeed, the obvious difference for state action purposes is that in the private sector case the state may merely authorize a private agreement. In the public sector cases, the state not only authorizes the agreement in its role as legislator, but affirmatively enters into such an agreement in its role as employer.
The Abood opinion compared the public sector case with the earlier private sector RLA cases “simply because the existence of governmental action in both contexts requires analysis of the free expression question”. Id. at 226 n. 23, 97 S.Ct. at 1795 n. 23. The comment that “differences between public- and private-sector bargaining simply do not translate into differences in First Amendment rights” was a response to the argument that the greater extent of government action in the public sector case required more extensive first amendment safeguards than the government action in the RLA eases. See id. (“Hanson nowhere suggested that the constitutional scrutiny of the union-shop agreement was watered down because the governmental action operated less directly than is true in a case such as the present one.”) At the same time, the Court explicitly noted that “[n]othing in our opinion ... indicates that private collective-bargaining agreements are, without more, subject to constitutional constraints.” Id.
It- is for these reasons that I would reverse the judgment of the district court and direct it to dismiss the complaint.
. Subsection 8(a), as codified at 29 U.S.C. § 158(a), provides in pertinent part:
(a) It shall be an unfair labor practice for an employer—
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall
preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later ...: Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership ... *1215Actions constituting "an unfair labor practice for a labor organization" are listed in subsection 8(b).
. If plaintiffs simply raised this § 8(a)(3) claim as an unfair labor practice then the National Labor Relations Board would have exclusive jurisdiction. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779-80, 3 L.Ed.2d 775 (1959). Plaintiffs have instead characterized the alleged violation of § 8(a)(3) for jurisdictional purposes as both a "Breach of Implied Conditions of Contract and Statute” and a breach of the statutory duty of fair representation. Complaint at 18; Appellees' Supplemental Brief at 2-4. See also majority opinion, ante at 1203-1205. The proper interpretation of the NLRA, as shown infra, defeats plaintiffs’ statutory claim, however stated; Congress simply did not intend to allow the external review of union expenditures that plaintiffs seek. Cf. Price v. International Union, U.A.W., No. H-84-1221, slip op. 15-18 (D.Conn. April 11, 1985) (complaint about union’s use of agency shop fees would not support duty of fair representation claim).
. See also Cantor, Uses and Abuses of the Agency Shop, 49 Notre Dame L.Rev. 61, 72 ff. (1983).
. Congress later did enact a "bill of rights” for employees, as part of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. See United Steelworkers of America v. Sadlowski, 457 U.S. 102, 109, 102 S.Ct. 2339, 2344, 72 L.Ed.2d 707 (1982).
. Subsection 8(b), as codified at 29 U.S.C. § 158(b), provides in pertinent part:
(b) It shall be an unfair labor practice for a labor organization or its agents—
(5) to require of employees covered by an agreement authorized under [§ 8(a)(3) ] the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances. In making such a finding, the Board shall consider, among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected....
. Section 304 was codified as 18 U.S.C. § 610, and applied to all labor unions. By the time Congress amended the RLA in 1950, however, the provision had proven largely ineffective. The Supreme Court avoided holding § 304 unconstitutional only by giving it a very narrow construction. United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948). After this decision the government given constitutional doubts about the statute, brought almost no new indictments under § 304 until 1955, and in 1949 Senator Taft brought about the provision’s repeal in the Senate (the House failed to take action on the bill). See Rauh, Legality of Union Political Expenditures, 34 S.Cal.L.Rev. 153, 158-59 (1961).
Congress repealed § 304 in 1976, replacing the provision with 2 U.S.C. § 441b, which prohibits the use of agency shop fees by labor organizations in connection with federal elections. 2 U.S.C. § 441b(b)(3). Plaintiffs have not pursued a claim here under this statute, which requires administrative proceedings for enforcement. See 2 U.S.C. § 437g(a).
. I do not think that defendants argue that federal courts lack jurisdiction of the plaintiffs’ constitutional claim. Rather, they argue that, because the challenged union activity is not state action, plaintiffs have failed to state a cognizable claim. Thus defendants’ belated motion to dismiss for lack of state action was brought under Fed.R.Civ.P. 12(b)(6) (failure to state a claim) rather than Rule 12(b)(1) (lack of jurisdiction). This was an appropriate way to raise the state action issue. Cf. Modaber v. Culpepper Memorial Hospital, Inc., 674 F.2d 1023 (4 Cir.1982) (Russell, J.) (affirming dismissal for failure to state a claim because no state action).
. For further discussion comparing Rendell-Baker to the union situation, see Kolinske, 712 F.2d at 479-80.
. The majority protests that the preemption distinction emphasized by the Supreme Court in Hanson and Abood is irrelevant. The present case, it notes, arises in a state that does not prohibit agency shop clauses, so that agency shops are permitted in Maryland under both federal acts. "So far as an agency shop under section 8(a)(3) in Maryland is concerned, it stands the same as the similar agency shop under section 2, Eleventh of the RLA.” Majority opinion, ante at 1206. Maryland law and the NLRA, however, merely permit private parties to negotiate an agency shop agreement. Neither Maryland law nor the NLRA encourages or requires such a provision, and, as noted above, "it is well settled that a state’s mere authorization of private conduct does not justify a finding of state action.” Kolinske, 712 F.2d at 478. The RLA, on the other hand, encourages agency shop agreements by preempting all contrary state law, and thus mandates a finding of federal government action under Hanson. Hanson’s holding is not limited to states with a prohibition against railway agency shop clauses on the books for the RLA to preempt, since the RLA also has prevented states that might otherwise have enacted such a prohibition from doing so.