Shea v. Intl Assn Machinists ( 1998 )

                            FOR THE FIFTH CIRCUIT
                                  No. 97-10490
         JAMIE SELVA,
         AND AEROSPACE WORKERS, an unincorporated
           Appeal from the United States District Court for the
                        Northern District of Texas
                              September 14, 1998
    Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.
    GARWOOD, Circuit Judge:
         Plaintiffs-appellants     (Appellants)       are   Southwest   Airlines
    (Southwest) customer service agents who are represented by the
    defendant-appellee International Association of Machinists and
    Aerospace   Workers   (IAM)   pursuant   to   a    union   shop   agreement.
    Appellants contend that the IAM’s annual objection requirement,
    whereby an employee can opt out of full union membership only if he
    notifies the union in writing every year, violates their rights
    under the Railway Labor Act, 45 U.S.C. § 151 et seq. (RLA).                   The
    district court granted summary judgment in favor of the IAM,
    finding that the IAM’s procedures do not violate the union’s duty
    of fair representation.     We disagree with the district court, and
    reverse the grant of summary judgment.
                          Facts and Proceedings Below
         Because Southwest is a “carrier by air,” its labor relations
    are governed by the RLA. See 45 U.S.C. § 181. Under Section 2,
    Eleventh of the RLA, an employer and a union can enter into “union
    shop agreements” whereby all employees must become members of the
    union as a condition of continued employment.              See 45 U.S.C. § 152,
    Eleventh.     Pursuant to this section, Southwest and the IAM entered
    into such an agreement, which is included as a union security
    clause in their collective bargaining agreement.                       This union
    security clause requires that the Southwest employees who are
    represented by the union either become members of the union or
    financially    support   the    union       as   a   condition    of    continued
    employment by Southwest.
         Appellants chose not to become members of the union, but, in
    accordance with the union shop agreement, they paid an agency fee
    to the union for their pro rata share of the expenses incurred by
    the union in providing representational services to the employees.
         The    current   dispute   between      the     IAM   and   the   appellants
    concerns the IAM’s objection procedures, that is, the procedures by
    which employees are required to notify the union that they will not
    become members and will only pay the objector fee.       The IAM’s
    objection procedure requires that the objectors provide the IAM
    with written notice during a 30-day window period every year.    The
    IAM does not honor written (or other) “continuing objections,” and
    thus the objector must renew his written objection every year or he
    will be obligated to pay full union dues.     The sole issue before
    this Court is whether the annual objection renewal requirement is
    permissible as applied to written continuing objections.
         As a reminder of this annual objection requirement, the IAM
    publishes a notice to its dues objectors in its newsletter, “The
    Machinist.”   From 1990 through 1993, the notice was published in
    the December issue of “The Machinist,” reminding the objectors to
    renew their objection during the upcoming January 30-day window
    period.   “The Machinist” was not published in December of 1994, so
    the notice for the 1995 year was printed in the November 1994
         The IAM maintains a database to keep track of employees and
    designates them as “members,” “nonmember agency fee payors,” or
    “objecting nonmember agency fee payors.”    An employee who objects
    is designated as an “objecting nonmember agency fee payor.”       If
    that employee renews his objection the following year, he remains
    an “objecting nonmember agency fee payor”; if he fails to object,
    however, he is redesignated as a “nonmember agency fee payor.”    If
    a new employee does not object to becoming a member of the union,
    he is automatically designated a “member,” and he does not have to
    provide any notice to renew his membership.
           The purpose of the database is to allocate the union’s annual
    expenses as “chargeable” and “non-chargeable.” An objecting member
    is not required to fund the “non-chargeable” expenses because they
    are not related to the union’s representational services.                   Many of
    these non-chargeable expenses have been defined by the Supreme
    Court, and include expenses for political activities and other
    activities    that       are    not   related    to   collective    bargaining.
    According to the IAM, the costs of collective bargaining and other
    activities are allocated among the members and nonmembers every
    year, and an amount is determined that fee objectors must pay for
    the following year.            All employees are then sent a notice that
    indicates what percentage of their dues were spent on collective
    bargaining activities, the reduced amount which must be paid by fee
    objectors,    and    the       requirements     for   becoming/remaining       fee
           All nine appellants filed objections in 1990, 1991, and 1992,
    but only five filed objections in 1993. None of the appellants’
    objections were received by the IAM during the 1994 window period.
    The reason for this was that the IAM had moved its headquarters two
    years earlier.      The address of the new headquarters was listed in
    the annual notice, but appellants, who did not then realize this,
    continued to mail their objections to the old address.                   By January
    of 1994 the forwarding order had expired and the objection letters
    were    returned    to    appellants.         Upon    receiving    the    returned
    objections, appellants resubmitted their objections to the correct
    address after the window period had ended, but these objections
    were rejected by the IAM as untimely.   Because they did not file
    objections during the required window period, the appellants became
    obligated to pay an agency fee that was equivalent to full union
    dues; the reduced annual agency fee for an “objecting nonmember
    agency fee payor” would have been approximately $42 less than the
    full fee.
         In order to avoid this liability for full dues, appellants
    relied on written “continuing objections” to any noncollective
    bargaining related expenditures that they had filed in earlier
    years.   Since 1989, each of the appellants had filed at least one
    such written objection that contained the statement, “the objection
    is to be considered as a continuing objection and remain in force
    from year-to-year until canceled by me.”    The IAM, however, does
    not recognize continuing objections, and instead requires objectors
    to renew their objections annually.
         Appellants challenged this annual renewal requirement, arguing
    that their written continuing objections ought to be recognized and
    honored. The district court rejected this argument and granted the
    IAM’s motion for summary judgment and dismissed the case.      The
    district court applied the Duty of Fair Representation standard
    (DFR standard) and held that neither the thirty-day window period
    nor the annual renewal requirement violated the IAM’s duty to
    fairly represent the interests of all employees in its collective
    bargaining unit.
         In 1934, Congress made major revisions to the Railway Labor
    Act of 1926 that significantly strengthened the position of the
    union towards the carrier.    One important revision was that the
    union selected by a majority of employees in the bargaining unit
    was deemed the exclusive bargaining agent of all those employees,
    regardless of whether they were union members.     45 U.S.C. § 152,
    Ninth.   On its face, this provision of the RLA requires only that
    this exclusive bargaining agent act on behalf of all employees, but
    it does not explicitly require that the exclusive bargaining agent
    act equitably toward all employees.       There is thus no explicit
    statutory directive that the union fairly represent the minority
    interests of certain classes of employees.      To curb abuses, the
    courts created a duty of fair representation.       This judicially
    created duty of fair representation dictates that the exclusive
    bargaining agent has the duty not to just represent all employees,
    but to represent them equitably and fairly, regardless of their
    class, or whether they are union members.       See generally 2 The
    Developing Labor Law 1409 (Patrick Hardin, ed., 3d ed. 1992).
         This duty of fair representation was first announced in Steele
    v. Louisville & Nashville R.R., 
    65 S. Ct. 226
     (1944), where the
    Supreme Court held that a union could not exercise its statutory
    power as exclusive bargaining representative in a manner that
    discriminated against employees who were not, and could not become,
    union members because of their race.      The Steele Court reasoned
    that when Congress conferred exclusive representative bargaining
    power on the union, it implicitly created a duty to act fairly
    toward all employees. See Steele, 65 S.Ct. at 232 (1944) (finding
    that the RLA implicitly “expresses the aim of Congress to impose on
    the bargaining representative of a craft or class of employees the
    duty to exercise fairly the power conferred upon it in behalf of
    all those for whom it acts without hostile discrimination against
    them.”).     The   Court    further   held    that   if   the    duty    of   fair
    representation was violated, an individual union member could seek
    “the usual judicial remedies of injunction and award of damages .
    . . .”     Id. at 234.1     In Vaca v. Sipes, 
    87 S. Ct. 903
     (1967), the
    Supreme Court specifically defined the DFR standard.                    The Court
    stated that a union breaches its duty of fair representation when
    its actions are “arbitrary, discriminatory, or in bad faith.”                  Id.
    at 916.
          Steele created the duty of fair representation in the context
    of   a racially    discriminatory     union   that   did    not    allow      black
    employees     to   become    union    members.        The       duty    of    fair
    representation, however, was not limited to racially discriminatory
    unions, rather the Court imposed the duty on all unions to fairly
           Together with Steele, the Court announced in a companion
    case, Tunstall v. Brotherhood of Locomotive Firemen and
    Enginemen,65 S.Ct. 235 (1944), that the right to be represented
    without discrimination was a federal right, and in Wallace Corp. v.
    65 S. Ct. 238
     (1944), issued the same day, the Court
    reiterated the duty to represent the employees’ interests fairly.
    Following these three cases, the Court reaffirmed the duty of fair
    representation in the exclusive bargaining context several times
    over the next several decades. See Ford Motor Co. v. Huffman, 
    73 S. Ct. 681
     (1953); Syres v. Oil, Chemical & Atomic Workers Local 23,
    76 S. Ct. 152
     (1955); Humphrey v. Moore, 
    84 S. Ct. 363
     (1964); see
    generally 2 The Developing Labor Law 1411-12 (Patrick Hardin, ed.,
    3d ed. 1992).
    represent all union and nonunion employees regardless of why
    certain employees were not union members.            Under the duty of fair
    representation, employees are entitled to fair representation by
    the union whether they were barred from joining the union based on
    their race or whether they voluntarily chose not to join.            Thus, an
    individual who voluntarily did not join the union could gain all
    the benefits and advantages of the union’s bargaining activities at
    no cost to him since he was under no obligation to financially
    support the union.     See Communications Workers of America v. Beck,
    108 S. Ct. 2641
    ,   2649   (1988).       This   situation   put   an   unfair
    financial burden on the union and its members since the unions were
    legally obliged to fairly represent and act on behalf of all
    employees, but could only look to union members for financial
    support.      By 1951, Congress had become concerned with the so-
    called “free-riders,” and amended the RLA. See International Ass’n
    of Machinists v. Street, 
    81 S. Ct. 1784
    , 1798 (1961) (quoting from
    the House Hearings where George H. Harrison, representing the
    Railway Labor Executives’ Association stated: “It is submitted that
    this bill with the amendment . . . makes possible the elimination
    of the ‘free rider’ and the sharing of the burden of maintenance by
    all of the beneficiaries of union activity.”)
          To curb the “free-rider” problem, Congress enacted section 2,
    Eleventh, which authorized the union shop.            Under the union shop,
    employees could be compelled by their employer to contribute to the
    exclusive bargaining representative as a condition of employment.
    This compulsory unionism would guarantee that those who enjoyed the
    benefits of collective bargaining agreements negotiated by the
    union would share in the costs of collective bargaining. See id.
          On its face, section 2, Eleventh does not merely require that
    all employees contribute to the union’s collective bargaining
    expenses, rather it requires that all employees become members of
    the union.       In other words, its literal language seems to require
    that employees pay full union dues, and thereby financially support
    not   only    the   union’s   collective        bargaining,     but     all   of    its
    political and other activities as well.                  This forced membership,
    through which an employee could be forced to financially support
    political (or other) causes which he opposes, gave rise to concerns
    over First Amendment rights of free speech and association.2                         In
    the seminal case on the matter, International Assoc. of Machinists
    v. Street, 
    81 S. Ct. 1784
     (1961), the Supreme Court construed
    section     2,   Eleventh   to   deny     the    union    the   power    to   use    an
    employee’s funds for political causes if the employee objects and
    makes his objection known to the union.                Id. at 1800.
          The    railway   employees     in       Street   argued   that    section      2,
    Eleventh was unconstitutional because it permitted the unions to
    use   the    employees’     funds   for    political      activities     that      they
    disagreed with.        The Court upheld the statute, but construed
         The Court has found that there is sufficient state action to
    implicate the First Amendment in RLA cases because the RLA
    expressly states that it supersedes state law, and hence federal
    law is the authority through which private rights are lost. See
    Railway Employees’ Dep’t v. Hanson, 
    76 S. Ct. 714
    , 718 (1956) (“The
    enactment of the federal statute authorizing union shop agreements
    is the governmental action on which the Constitution operates,
    though it takes a private agreement to invoke the federal
    section 2, Eleventh to avoid finding it unconstitutional.                 The
    Court relied on the principle that, wherever possible, federal
    statutes must be interpreted to avoid constitutional questions.
    See Street, 81 S.Ct. at 1790, citing Crowell v. Benson, 
    52 S. Ct. 285
    , 296 (1932).     In keeping with this principle, the Court held
    that Congress did not intend “to provide the unions with a means
    for forcing employees, over their objection, to support political
    causes which they oppose.”          Street, 81 S.Ct at 1797-98.           The
    legislative history supports this interpretation and reveals that
    although Congress did not explicitly protect the free speech rights
    of objecting employees, Congress was concerned with protecting the
    rights of those who would be subject to union shop agreements. See
    id. at 1798-99 (quoting extensively from the legislative history).
    Based on this legislative history, the Street Court found that free
    speech protection was implicit in the statute and that under
    section 2, Eleventh an employee cannot be forced to contribute to
    a union’s political activities if he makes his objection known. See
    id. at 1803 (holding that “dissent is not to be presumed——it must
    affirmatively   be   made   known   to    the   union   by   the   dissenting
    employee.”).    Thus, after Street, a union could lawfully enforce
    a union shop agreement and collect full dues from all employees who
    did not let their objections be known.
         At the heart of the Street opinion was the concern over the
    employees’ First Amendment rights under a union shop agreement.
    This concern over the First Amendment rights of objecting employees
    continues to shape the evolving union shop jurisprudence.
         In Railway Clerks v. Allen, 
    83 S. Ct. 1158
     (1963), the Court
    was presented with an issue similar to the issue in Street.                        The
    Allen plaintiffs challenged the union shop agreement on the grounds
    that money was being exacted from employees and spent on political
    activities.      The   Allen     Court   relied     on   Street     and   basically
    reiterated the holding of Street that section 2, Eleventh must be
    construed to deny the unions the power to use an employee’s exacted
    funds for     political   causes     that     the   employee      opposes    if    the
    employee makes his objection known.            In another RLA case, Ellis v.
    Railway Clerks, 
    104 S. Ct. 1883
     (1984), the Court expanded upon the
    rights established by Street and set limits on what expenses could
    be charged to objecting nonunion employees and how those charges
    could be assessed.
         The Supreme Court also dealt with the union shop outside the
    RLA context.    The National Labor Relations Act (NLRA) for example,
    also contains a union shop provision, which the Court interpreted
    in Communications Workers v. Beck, 
    108 S. Ct. 2641
     (1988).                   The Beck
    Court held that the union shop provisions of the NLRA and RLA have
    the same meaning.         Unlike the RLA cases, the Court did not
    explicitly invoke the First Amendment, but it did rely on Street,
    which construed the union shop provision of the RLA to avoid
    conflicts with the First Amendment.             Following Street, the Court
    concluded that the union shop provision of the NLRA, like its
    counterpart    in   the   RLA,    only    allows    unions     to   collect       fees
    necessary for collective bargaining.            Id. at 2657.
         In another line of cases involving public employee unions and
    state union shop laws, the Supreme Court explicitly relied on the
    First Amendment.   In Abood v. Detroit Bd. of Educ., 
    97 S. Ct. 1782
    (1977), the Court was called upon to decide the constitutionality
    of a Michigan union shop law.          The Court upheld the law, but
    following Street and Allen, limited it so that objecting nonunion
    employees did not have to pay for political (or other nongermane)
    activities.   The Court noted that requiring nonunion employees to
    support their collective bargaining agent “has an impact upon their
    First Amendment interests.”       Id. at 1793.      Because of these
    interests, the Court sought to minimize the burden on the objecting
    employee without restricting the union’s ability to recover its
    collective bargaining expenses.    Id. at 1800.   The Court held that
    broadly objecting to any ideological expenditures unrelated to
    collective bargaining was sufficient and the burden would then lie
    with the union to apportion its expenses between those related to
    collective bargaining and all others. The Court stated:
         “As in Allen, the employees here indicated in their
         pleadings that they opposed ideological expenditures of
         any sort that are unrelated to collective bargaining. To
         require greater specificity would confront an individual
         employee with the dilemma of relinquishing either his
         right to withhold his support of ideological causes to
         which he objects or his freedom to maintain his own
         beliefs without public disclosure. It would also place on
         each employee the considerable burden of monitoring all
         of the numerous and shifting expenditures made by the
         Union that are unrelated to its duties as exclusive
         bargaining representative.” Id. at 1802-03.3
          It should be noted that Street’s objection requirement was
    imposed in a context which appeared to assume that a nonmember
    employee in the bargaining unit could only object to expenditures
    on specific, particular activities not germane to collective
    This   same   emphasis   on   minimizing   the   interference   with   the
    objecting employee’s free speech rights was reiterated in another
    state law case, Chicago Teachers Union v. Hudson, 
    106 S. Ct. 1066
    (1986).    The Hudson Court recognized that:
           “although the government interest in labor peace is
           strong enough to support an ‘agency shop’ notwithstanding
           its   limited   infringement   on   nonunion   employees’
           constitutional rights, the fact that those rights are
           protected by the First Amendment requires that the
           procedure be carefully tailored to minimize the
           infringement.” Id. at 1074 (emphasis added).
           We hold that this requirement that “the procedure be carefully
    tailored to minimize the infringement” is the standard by which
    bargaining of which he disapproved. That specificity requirement
    was effectively done away with in Allen. As the Court explained in
    Abood (97 S.Ct. at 1801 & n.39):
           “The Court [in Allen] held that the employees had
           adequately established their cause of action by
           manifesting ‘opposition to any political expenditures by
           the union,’ id., at 118, 83 S.Ct., at 1162 (emphasis in
           original), and that the requirement in Street that
           dissent be affirmatively indicated was satisfied by the
           allegations in the complaint that was filed, 373 U.S., at
           118-119, and n. 6, 83 S.Ct., at 1161-62.39
           39.    Allen can be viewed as a relaxation of the
           conditions established in Street governing eligibility
           for relief. See Allen, 373 U.S., at 129-131, 83 S.Ct. at
           1167-1168 (Harlan, J., concurring in part and dissenting
           in part). Street seemed to imply that an employee would
           be required to identify the particular causes which he
           opposed. 367 U.S., at 774-755, 81 S.Ct., at 1802-03.
           Any such implication was clearly disapproved in Allen,
           and, as explained today, see infra, at 1802, there are
           strong reasons for preferring the approach of Allen.”
         It is clear, then, that subsequent cases have relaxed the
    Street objection requirement. That requirement, of course, still
    exists, but at least since Abood it is clear that there is no legal
    reason to require more than a written, continuing objection to all
    expenditures or activities not germane to collective bargaining.
    union shop procedures of the kind at issue here must be evaluated
    under the RLA.
           The objection procedure at issue in this case fails to meet
    the Hudson standard; it does not minimize the infringement.                  The
    current procedure is cumbersome to both the union and the objecting
    employees because it requires annual computer entries.                 If the IAM
    recognized continuing objections made expressly and in writing, the
    employee would notify the union only once and neither the union nor
    the individual would be bothered with annual database entries.
           The IAM has not proffered any legitimate reason why an annual
    written objection requirement is necessary when the employee has
    previously furnished (and not withdrawn) a continuing written
    objection.      It seems to us that the unduly cumbersome annual
    objection    requirement      is   designed    to    prevent   employees    from
    exercising their constitutionally-based right of objection, and
    serves only to further the illegitimate interest of the IMA in
    collecting full dues from nonmembers who would not willingly pay
    more than the portion allocable to activities germane to collective
    bargaining.     Certainly the procedure that least interferes with an
    employee’s exercise of his First Amendment rights is the procedure
    by which an employee can object in writing on a continuing basis.
    As   demonstrated      by   this   case,     the   current    annual   objection
    procedure can interfere with an employee’s exercise of his rights,
    because if he fails to again object, he must pay the equivalent of
    full    union   dues    and   thereby      support   the     union’s   political
    activities.4     If the IAM could bring forth a legitimate reason why
    written   objections       must   be    annually      renewed    and     cannot   be
    continuing, then perhaps we would have to evaluate whether the
    infringement is reasonably necessary.               But in the absence of such
    a reason, we hold that the annual written objection procedure is an
    unnecessary and arbitrary interference with the employees’ exercise
    of their First Amendment rights.
          Our holding today is in conflict with the holdings of the D.C.
    and   Sixth    Circuits,    which      both    upheld   the     annual   objection
    requirement.     In Tierney v. City of Toledo, 
    824 F.2d 1497
    , 1506
    (6th Cir. 1987), the court held that the union’s annual objection
    requirement is not unreasonable.               To reach this conclusion, the
    court merely noted that Hudson had placed the burden of objection
    on the employee, and from this the court leaped to the conclusion
    that because the burden was on the employee, the annual objection
    procedure was not unreasonable.            Only a single, brief sentence of
    the Tierney opinion is devoted to this issue.                   We disagree with
    Tierney’s logic, and can see no basis for concluding that because
    the   employee    bears    the    burden      of   objection,    he    must   object
    annually.      The burden of objection was first placed upon the
    employee by Street, which held that an employee’s objection “must
          There is nothing to suggest that not requiring that written
    objections be annually renewed would result in any nonmember
    employee within the bargaining unit who had filed a written
    objection being classified in a subsequent year as an objector when
    he was then in fact willing to pay full dues.         Nor is there
    anything to suggest that requiring written objections to be
    annually renewed was less costly or more efficient from a
    bookkeeping or administrative perspective.
    affirmatively    be   made    known   to    the    union   by   the   dissenting
    employee.”     Street, 81 S.Ct. at 1803.          Under our reading of Street
    and the cases that followed, however, the Court was primarily
    concerned with protecting the employees’ First Amendment rights and
    minimizing the infringement on those rights.                Nothing in those
    cases requires repeated objection. Tierney’s reliance on Hudson is
    therefore misplaced.         Although Hudson, like Street, placed the
    burden of objection on the employee, the             Court also required that
    the objection procedure be “carefully tailored to minimize the
    infringement.”     Hudson, 106 S.Ct. at 1074 (emphasis added).                  In
    light of this latter requirement, we cannot agree with Tierney that
    the   annual    objection    procedure      for    which   there      is   a   less
    burdensome, more logical alternative is “reasonable.”
          We also disagree with the D.C. Circuit, which held in Abrams
    v. Communications Workers of America, 
    59 F.3d 1373
    , 1381-82 (D.C.
    Cir. 1995), that in light of Street’s directive that the employee
    must make his objection known, the annual objection requirement was
    permissible.     Abrams devotes only two sentences to this issue and
    merely cites Street and Tierney.           For the reasons stated above, we
    do not agree with Abrams in this respect.5
             Another case, Kidwell v. Transportation Communications
    International Union, 
    731 F. Supp. 192
    , 205 (D.Md. 1990), aff’d in
    part, rev’d in part on other grounds 
    946 F.2d 283
     (4th Cir. 1991),
    followed the logic of Tierney and held that the annual renewal
    requirement is “not unduly restrictive of plaintiffs’ rights” and
    that it is a reasonable requirement “since objections are not to be
    presumed.” The Kidwell court held that “the union is not required
    to provide the least restrictive procedure imaginable.” If the
    “imaginable” in this statement is replaced by “reasonably
    practicable,” then the statement would be contrary to Hudson. We
    impose no obligation on the Union that is not reasonably
         The plaintiffs in Abrams alleged that the objection procedure
    violated the union’s duty of fair representation. The Abrams court
    did not explicitly base its holding on the DFR, but other courts
    have.     In    Nielsen    v.   International      Ass’n      of    Machinists   and
    Aerospace Workers, 
    94 F.3d 1107
    , 1113 (7th Cir. 1996), for example,
    the Seventh Circuit held that the DFR standard was the appropriate
    standard for reviewing the procedures related to the union shop
    agreement under the NLRA.           The court was not presented with the
    issue of an annual renewal requirement, but it did conclude that
    the union had not violated its duty of fair representation by
    imposing a window period for registering objections. In support of
    its holding that the DFR standard applied, the Nielsen court cited
    Airline Pilots Ass’n v. O’Neill, which held that the DFR standard
    announced      in   Vaca   v.   Sipes   “applies    to    all      union   activity,
    including contract negotiation.” Airline Pilots Ass’n v. O’Neill,
    111 S. Ct. 1127
    , 1130 (1991) (emphasis added).                      In another union
    shop case decided under the NLRA, the National Labor Relations
    Board held that “[i]n light of the Court’s explicit directive [in
    Vaca and O’Neill] that the duty of fair representation applies to
    all union activity, we find inescapable the conclusion that a
    union’s   obligations       under   Beck     are   to    be   measured      by   that
    standard.”      California Saw & Knife Works, 
    320 N.L.R.B. 224
    practicable, and we disagree with Kidwell.
          The annual renewal requirement was not before the NLRB in
    California Saw & Knife Works.
          Both     Nielsen       and     California    Saw     &    Knife     Works    are
    distinguishable from the current case because they were decided
    under the NLRA.        Some Supreme Court decisions may have arguably
    indicated that under the NLRA there is not sufficient state action
    to trigger constitutional protections.              See Communications Workers
    of   America    v.   Beck,     
    108 S. Ct. 2641
    ,    2656-57   (1988)     (citing
    Steelworkers v. Sadlowski, 
    102 S. Ct. 2339
    , 2350 n.16 (1982), and
    Steelworkers v. Weber, 
    99 S. Ct. 2721
    , 2725 (1979)).                   Beck left that
    issue open.     Id. at 2657 (“We need not decide whether the exercise
    of rights permitted, though not compelled, by § 8(a)(3) involves
    state action.”). The NLRA, unlike the RLA, preserves the authority
    of states to outlaw union shop agreements, and thus it may be
    arguable that there is no constitutional question and that courts
    deciding     NLRA    cases    cannot    directly       invoke   the     Hudson    First
    Amendment standard.          But the case before us arises under the RLA,
    which preempts state laws that ban union shop agreements, and this
    preemption has been held to be sufficient governmental action to
    trigger constitutional limitations.               See Beck, 108 S.Ct. at 2656-
    57; Railway Employees v. Hanson, 
    76 S. Ct. 714
     (1956).                    Because the
    RLA is subject to constitutional limits, a reviewing court may
    properly invoke the protections of the First Amendment and need not
    rely on the arguably weaker DFR standard.                For this reason we apply
    the Hudson First Amendment standard rather than the DFR standard.
          The district court in this case, however, did not follow
    Hudson, and instead reviewed the objection procedures under the DFR
    standard.      Under the DFR, the court found that the objection
    procedure    must   be     upheld   because       it     is   not       arbitrary,
    discriminatory, or in bad faith towards the objecting nonunion
    employees. The lower court’s reliance on the DFR standard is
    misplaced. First, the DFR standard is not the appropriate standard
    of review in this case, and second, even if the DFR were the
    appropriate standard, the annual objection requirement violates it.
         Since the union can give no justification for this annual
    objection procedure, and since it is more cumbersome and less
    efficient than a system that allows continuing written general
    objections, the procedure is unreasonable and arbitrary.                  It is an
    unnecessary and arbitrary interference with the employees’ First
    Amendment rights that fails to meet the union’s duty of fair
    representation as it has been defined in Vaca and O’Neill.                      See
    Vaca v. Sipes, 
    87 S. Ct. 903
     (1967); see also O’Neill, 111 S.Ct. at
    1136 (1991) (a breach of the duty of fair representation occurs
    only if the union’s actions “can be fairly characterized as so far
    outside of a ‘wide range of reasonableness,’ that it is wholly
    ‘irrational’ or ‘arbitrary.’” (citations omitted)).
         More fundamentally, we remain unconvinced that the union’s
    objection    procedures    should   even   be     reviewed    under       the   DFR
    standard.    Even though other union shop cases have been decided
    under the DFR, we will not apply the DFR standard in this case.
         The DFR standard is applicable to evaluate a union’s treatment
    of its members and represented nonmembers in the context of a
    collective    bargaining    agreement,     that    is,     when     a   union    is
    performing traditional representational union functions on behalf
    of those that it represents.              Issues such as the administration of
    the collective bargaining agreement, the fairness of the IAM’s
    representation of the employees in negotiations with the employer,
    or how a union treats those that it represents, are susceptible to
    DFR review. A highly deferential standard of review is appropriate
    in those cases because the court is being called upon to review the
    union’s performance of union functions and should not substitute
    its own judgment of how a union should conduct its affairs.                     Cf.
    O’Neill,    111     S.Ct.    at    1135    (1991)    (“Congress   did   not   intend
    judicial review of a union’s performance to permit the court to
    substitute its own view of the proper bargain for that reached by
    the union.     Rather, Congress envisioned the relationship between
    the courts and labor unions as similar to that between the courts
    and the legislature.              Any substantive examination of a union's
    performance, therefore, must be highly deferential, recognizing the
    wide latitude that negotiators need for the effective performance
    of their bargaining responsibilities.” (citations omitted)).                     To
    avoid over-reaching, courts must give great leeway to unions in
    cases concerning such disputes. But, this is a dispute between the
    union and the objecting employees that does not require us to
    second-guess        the     union’s       judgment    as   exclusive    bargaining
    representative.           Rather we 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.
    108 S. Ct. 1157
    , 1162 (1988); Abood.7   In this character of
    case, we will follow Hudson and require a union to adopt those
    reasonably practicable procedures that least interfere with an
    objecting employee’s exercise of his First Amendment rights.
         We hold that the IAM’s procedure violates Hudson’s requirement
    that the First Amendment infringement be minimized. Alternatively,
    we hold that the annual objection requirement violates the IAM’s
    duty of fair representation.   For these reasons, we reverse the
    district court’s grant of summary judgment and remand for further
                                         REVERSED and REMANDED
         As the Court stated in Abood:
         “It is no doubt true that a central purpose of the First
         Amendment ’”was to protect the free discussion of
         governmental affairs.’” . . . [citations] But our cases
         have never suggested that expression about philosophical
         social, artistic, economic, literary, or ethical
         matters——to take a nonexhaustive list of labels——is not
         entitled to full First Amendment protection.” Id. at
         1797 (footnote omitted).