Full opinion text
Opinion for the court filed by Senior Circuit Judge LUMBARD. Dissenting opinion filed by Circuit Judge MIKVA. LUMBARD, Senior Circuit Judge: In bargaining for a renewal of labor management contracts in four right-to-work states, the Union insisted on clauses assessing non-union employees for the costs of union representation. International Paper Co. (the Company) responded that, in those states, such clauses were illegal under right-to-work laws. The National Labor Relations Board (NLRB) found that such clauses were not a mandatory subject for bargaining, and therefore insistence on the clauses was an unfair labor practice. 252 NLRB 181, [1980-81] CCH NLRB H 17,596 (1980). The Union petitioned for review and the NLRB cross-petitioned to enforce its order. We grant enforcement of the Board’s order. The facts were found at an administrative hearing, Schlesinger, A.L.J., and are not disputed on appeal. Pipefitters at company plants in Springhill, La., Panama City, Fla., Natchez, Miss., and Camden, Ark. belong to Union Locals in the four states. Costs of union administration are borne by the locals; costs of negotiating a contract traditionally have been split between the locals and the international union. In 1974, Local 681 in Mississippi added a yearly assessment of two percent of wages to the existing union dues of $8.25 per month. Pipefitters at the Natchez, Miss., plant quit the Union rather than pay the assessment. Local 681’s membership in Natchez declined from 38 to 1, the last member being the shop steward who by virtue of his position was not required to pay dues. Of course, Local 681 remained obligated to represent the Natchez pipefitters even though none of them paid dues. Abood v. Detroit Board of Education, 431 U.S. 209, 221-22, 97 S.Ct. 1782, 1792, 52 L.Ed.2d 261 (1977); Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 760-61, 81 S.Ct. 1784, 1795-96, 6 L.Ed.2d 1141 (1961). When the Union opened contract negotiations with the Company in May 1977, it proposed clauses levying “representation fees” on non-member pipefitters. The Union’s final draft of the clauses was: The cost and expenses of representing all members of the bargaining unit, without regard to union affiliation or lack of same must be borne by all bargaining unit employees. Those unit employees who voluntarily choose not to become union members shall be required to contribute a pro-rata share of the costs and expenses incurred by the union that are directly related to enforcing and servicing the collective bargaining agreement. The representation fee will apply only when a collective bargaining agreement is in effect. Furthermore, in no case will the fee exceed the dues and assessments required of union members. Failure of any permanent employee to make payment of the representation fee each month and to maintain the payments during employment for dismissal after ten (10) days written notice to the employee and the company. The amount of the representation f-ee will be based upon an independent audit to determine those services performed by the union directly related to the collective bargaining process.... The Union and the Company reached agreement on all other contract provisions, but on September 28, 1977, the Company rejected the representation fee clauses on the grounds that they violated the right-to-work laws of Arkansas, Florida, Mississippi, and Louisiana. On October 17, the Union wrote to the Company to insist on the clauses, and to announce that picketing would commence at Natchez on October 31. The Company then filed its unfair labor practice charge. At the NLRB hearing, Judge Schlesinger ruled that representation fees were permissible under § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), which says: 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 Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . . .■ 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. . .. But Judge Schlesinger then concluded that the representation fees were banned by the right-to-work laws of the four states under § 14(b) of the NLRA, 29 U.S.C. § 164(b), which provides: Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial Law. The Union argued that fee-for-service clauses are the equivalent of “membership in a labor organization” under § 8(a)(3) but not under § 14(b). Such clauses, the Union claimed, are necessary to prevent “free riders” such as the Natchez employees. Judge Schlesinger concluded, however, that by passing § 14(b) Congress had deliberately allowed the States to make their own judgment on the issue of “free riders.” He held that the representation fee clauses were prohibited by State law under § 14(b), and the Union committed an unfair labor practice under § 8(a)(3) by bargaining to impasse for the clauses. The Board adopted Judge Schlesinger’s opinion that § 14(b) permitted states to ban representation fees and ordered the Union to cease violating § 8(a)(3) by its insistence on the fees; whereupon the Union petitioned for review and the Board cross-petitioned for enforcement. The legislative history of the Taft Hartley Act of 1947 which enacted § 14(b), clearly supports the Board’s ruling. Congress knew precisely what state laws it was validating when it passed § 14(b). See Air Transport Ass’n of America v. Professional Air Traffic Controllers Organization, 667 F.2d 316, 321 (2d Cir. 1981). The House report listed each state which had passed a right-to-work law or constitutional provision. H.R.Rep.No.245, 80th Cong., 1st Sess. 34, reprinted in I Legislative History of the Labor Management Relations Act of 1947 324 (1948). Among the enactments noted was the Arkansas statute at issue in this case. Another was the Georgia statute, Law No. 140 §§ 3-4, 1947 Ga.Laws 616, 618 (March 27, 1947) (codified as Ga.Code §§ 54-903-04 (1978)): § 54 — 903—No individual shall be required as a condition of employment or continuation of employment to pay any fee, assessment or any other sum of money whatsoever to a labor organization. § 54-904 — -Any provision in a contract between an employer and a labor organization which requires as a condition of employment, or continuation of employment, that any individual . . . pay any fee, assessment or other sum of money whatsoever to a labor organization, is hereby declared to be contrary to the public policy of this state. The Mississippi statute at issue here is almost identical to the Georgia statute above, which Congress practically incorporated by reference into the legislative history of § 14(b). Congress also knew about the free rider problem posed by such laws when it sanctioned such laws by passing § 14(b), as the report of the Senate Committee shows: A controversial issue to which the committee has devoted the most mature deliberation has been the problem posed by compulsory union membership. . . . [Ajbuses of compulsory membership have become so numerous there has been great public feeling against such arrangements. This has been reflected by the fact that in 12 States such agreements have been made illegal either by legislative act or constitutional amendment, and in 14 other States proposals for abolishing such contracts are now pending. Although these regulatory measures have not received authoritative interpretation by the Supreme Court [citation omitted] it is obvious that they pose important questions of accommodating Federal and State legislation touching labor relations in industries affecting commerce [citations omitted]. In testifying before this committee, however, leaders of organized labor have stressed the fact that in the absence of such provisions many employees sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their share of the cost. Report of the Senate Committee on Labor and Public Welfare presented by Senator Taft, 80th Cong., 1st Sess. 6, April 17, 1947, reprinted in I Legislative History, supra, at 412. Senator Taft reported his. bill, S. 1126, one week after Representative Hartley introduced H. 3020, whose § 13 was the textual precursor of the Taft-Hartley Act’s final § 14(b). Although the original Senate bill did not contain § 14(b), Senator Taft and Representative Hartley were of one mind on federal preemption of state law. On June 5,1947, Senator Taft explained the future § 14(b) to his peers as follows: Many states have enacted laws or adopted constitutional provisions to make all forms of compulsory unionism in such states illegal. As stated in the report accompanying the Senate committee bill, it was not the intent to deprive the States of such power. Cong.Rec. S 6602, reprinted in II Legislative History, supra, at 1543. Senator Taft added, “All we have done is to write in expressly what our committee report said.” Id. at 6604, reprinted in II Legislative History, supra, at 1546. Congress knew of the free rider problem; it knew of the state laws at issue here; it passed § 14(b) anyway. President Truman’s veto message specifically criticized § 14(b): “The bill’s stated policy of preserving some degree of union security would be abdicated in all states where more restrictive policies exist.” Cong.Rec. H 7503, reprinted in II Legislative History, supra, at 920-21. In short, the legislative history of § 14(b) supports the position of the Board. So does the Supreme Court. On June 3, 1963, the Court held that an “agency shop” agreement, requiring non-members to pay union dues, was the equivalent of membership under § 8(a)(3) and therefore permissible under the NLRA. NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963). On the very same day, the Court held that because the agency shop was the equivalent of membership under § 8(a)(3), it was for that reason the equivalent of membership under § 14(b) and therefore amenable to prohibition by state law. Retail Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963). The connection between the § 8(a)(3) proviso and § 14(b) is clear. Whether they are perfectly coincident, we need not now decide, but unquestionably they overlap to some extent. .. . Whatever may be the status of less stringent union-security arrangements, the agency shop is within § 14(b). Id. at 751-52, 83 S.Ct. at 1464-65. The Union’s “representation fee” is a “less stringent union-security arrangement” than the fee in Schermerhorn because it is not set to equal union dues. The representation fee thus escapes Schermerhorn’s holding, but not its rationale as restated in recent dicta: “Section 14(b) simply mirrors that part of § 8(a)(3) which focuses on post-hiring conditions of employment.” Oil, Chemical & Atomic Workers Int’l Union v. Mobil Oil Corp., 426 U.S. 407, 417, 96 S.Ct. 2140, 2145, 48 L.Ed.2d 736 (1976). See also id. at 427, 96 S.Ct. at 2150: “To summarize, §§ 8(a)(3) and 14(b) together exhaust the federal interest in the types of union-security agreements employers and unions may make. The closed shop is absolutely prohibited. Any lesser security agreement, though consistent with federal interest is sanctioned only if it harmonizes with state policy.” (Stewart, J., dissenting). The Union argues that not every practice permitted under federal law may be forbidden by the States. The Union cites several circuit court decisions holding that non-discriminatory union hiring halls, permissible under § 8(a)(3), may not be prohibited by right-to-work laws under § 14(b). Laborers Int’l Union of North America Local 107 v. Kunco, Inc., 472 F.2d 456 (8th Cir. 1973); NLRB v. Tom Joyce Floors, Inc., 353 F.2d 768 (9th Cir. 1965); NLRB v. Houston Chap. Ass’n Gen’l Con., 349 F.2d 449 (5th Cir. 1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 648, 15 L.Ed.2d 540 (1966). These cases are clearly distinguishable. The regulation of union “membership” permitted to the states under § 14(b) applies only to post-hiring union security arrangements. Oil, Chemical & Atomic Workers, supra Use of a union hiring hall precedes hiring, and therefore does not constitute “membership” under § 14(b). But the representation fees at issue here are clearly a post-hiring union-security arrangement. They fall within the ambit of § 14(b). Section 14(b) allows states to permit free riders. The Union and the dissent complain that free riders pose more of a burden today than they did when § 14(b) was enacted, but that argument is better addressed to Congress than to this court. A state law valid under § 14(b) in 1947 is valid today, and there is no serious question but that Congress in 1947 intended laws like Mississippi’s to survive federal preemption. Moreover, on the facts of this case Mississippi’s right-to-work law protects precisely those liberties Congress allowed the states to preserve. The men at the Natchez plant once belonged to the Union. They fled the Union when it raised its tax upon their labor. The dissent argues that the Union can force these men to choose between paying the fees they fled, or losing their jobs— and this notwithstanding state laws to the contrary. This is precisely the “compulsory unionism” Congress had in mind when it passed § 14(b), and this is the core of membership the Supreme Court has interpreted § 14(b) to encompass. Enforcement granted. . The International Union of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Unions Nos. 141, 229, 681 and 706. . The other locals did not have similar problems. Locals 141 and 229 retained all of their members. Only two of 29 pipefitters 'represented by Local 706 refused to pay dues. . Judge Schlesinger suggested that the Union could disclaim any interest in representing the Natchez employees. The Board did not consider this point on appeal, and neither party has raised the issue here. . Ark.Stat.Ann. § 81-202 provides in part that “No person shall be denied employment because of membership in, or affiliation with, a labor union .. . nor shall any person unless he' shall voluntarily consent in writing to do so, be compelled to pay dues, or any other monetary consideration to any labor organization as a prerequisite to, or condition of, or continuance of, employment.” La.Rev.Stat.Ann. § 23:983 provides that “No person shall be required, as a condition of employment, to become or remain a member of any labor organization, or to pay any dues, fees, assessments, or other charges of any kind to a labor organization.” Miss.Const.Art. VII and § 198-A and Miss. Code Ann. § 71-1-47 provide that “No employer shall require any person, as a condition of' employment or continuation of employment to pay any dues, fees or other charges of any kind' to any labor union or labor organization.” Fla.Const.Art. I § 6 provides that “The right of persons to work shall not be denied or abridged on account of membership or non-membership in a labor organization.” This provision was construed to prohibit an agreement requiring nonunion members to pay their pro-rata share of bargaining and grievance costs, Florida Education Ass’n v. Pub. Empl. Rel. Com., 346 So.2d 551 (Fla.App. 1977). . The dissent insists that in passing § 14(b) Congress intended state regulation only of closed or union shops. But President Truman’s veto message complained that § 14(b) allowed the states to ban all forms of union security, and both friends and foes of the Taft-Hartley Act agreed with that assessment. Senator Murray’s analysis of the bill concluded that “Section 14(b) ... expressly provides that in the case where the State law covering union-security agreements is more rigorous than the policy expressed in the bill such State law shall be unaffected.” Cong.Rec.S. 6665-66 (June 6, 1947), reprinted in II Legislative History, supra, at 1586, Senator Pepper said the section “leaves in effect all the strictures which any state may impose.” Cong.Rec.S. 6678 (June 6, 1947), reprinted in II Legislative History, supra, at 1596. Senator Morse specifically objected to § 14(b) “which completely outlaws any form of the union shop in those States that have enacted laws abolishing or making illegal all forms of union security.” Cong.Rec.S. 6613 (June 6, 1947), reprinted in II Legislative History at 1562. Clearly Congress equated membership with union security and considered the latter subject to state regulation. It is difficult to see how the agreement at issue can not be termed a union security agreement. . The General Motors and Schermerhorn cases neatly illustrate the Union’s dilemma: the agreement at issue must concern “membership” to be a mandatory subject of bargaining under § 8(a)(3), but must not concern “membership” in order to avoid state regulation under § 14(b). The dissent attempts to avoid this dilemma by stating that the agreement is a mandatory subject of bargaining under § 8(d) as regulating relations between employer and employee or as settling any term or condition of employment. This line of reasoning holds that an agreement concerning employee-union relationships falls under the NLRA provision governing employer-employee relations but not under the NLRA provision governing union security agreements. . Oil, Chemical & Atomic Workers Int'I Union v. Mobil Oil Corp., 426 U.S. 407, 96 S.Ct. 2140, 48 L.Ed.2d 736 (1976), held that § 14(b) did not permit Texas to ban an agency shop covering seamen. The Court reasoned that Texas law could only govern union-employee relationships where employees worked in Texas, because regulation of union membership permitted by § 14(B) applied to union-employee relationships on the job, after the employee had been hired. . If the Union can prove that every cent of union dues and fees is spent on collective bargaining, non-members will then pay exactly the same amount as members, yet the dissent would still hold that such a requirement is not the equivalent of membership.
MIKVA, Circuit Judge, dissenting: The specific question posed by this case is whether employees who are not members of a union can be required to pay their fair share of grievance costs and other collective bargaining expenses incurred by a union on their behalf without thereby becoming “members” of the union, as membership is defined by federal labor law. Congress has never addressed this question, and the Supreme Court has explicitly left it open. The answer given by the majority runs against the grain of federal labor policy and finds no support in the legislative history of the statute from which that answer is said to stem. Stated more generally, the question presented by this case goes to the heart of the model of trade union democracy endorsed by Congress in the Wagner and Taft-Hartley Acts. Under this model, the representative selected by a majority of the employees in a bargaining unit is authorized to bargain with the employer on behalf of the entire unit. “The collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit.” Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967). The subordination of individual interests is not complete, however. Congress has enacted innumerable provisions giving individual employees rights against unions and protecting employees from arbitrary union conduct. One such measure is section 14(b) of the TaftHartley Act, 29 U.S.C. § 164(b) (1976), which lets the states outlaw contracts requiring employees to become “members” of the union selected as the bargaining agent. Section 14(b) is thus part of a curious and delicate balance between the powers and duties of unions and the freedom of individual employees. In recent years, the courts have firmed up one side of this balance by articulating the obligations owed by the exclusive bargaining representative to each employee in the bargaining unit. Decisions such as Vaca v. Sipes have made it clear that the union is a necessary party in virtually any relationship between the employer and the employee. Even in right-to-work states, the union cannot refuse to represent individual workers whether or not they are members of the union. The union must press their grievances; it must defend their interests during arbitration and contract negotiation; it must not permit individuals to “opt out” of the contract negotiated for the bargaining unit as a whole. These duties, and the liabilities for breaching them, have been elaborated by the courts rather than by Congress. It follows that courts must take these pronouncements into consideration when addressing the other side of the balance implicit in trade union democracy. Judicial expansion of union obligations provides strong reason for us to hold section 14(b) to its exact terms, and for being careful to read the statute and Supreme Court decisions interpreting it no more broadly than their language justifies. This is not a call for judicial circumvention of section 14(b), but for an understanding that the statute is only one element in a complex equation. If courts emphasize one side of that equation without a corresponding treatment of the other side, their decisions can only undermine the balance appropriately set by Congress. I respectfully dissent. I. THE UNION PREDICAMENT To appreciate the importance of this case, it is necessary to focus on the bind in which the Union found itself in 1977 after the members of one of its locals stopped paying their dues. Local 681 had represented the pipefitters and helpers at mills of the International Paper Company (the Company) in Vicksburg and Natchez, Mississippi, since 1951. The members of Local 681 voted in 1972 to add “working dues,” a fraction of the actual hourly earnings of individual workers, to the dues already being assessed Union members at a flat monthly rate. But in 1974, the Local 681 members at the Natchez mill began refusing to pay both kinds of dues. By 1976, Union membership at the Natchez mill had declined from 38 to 1, and even the remaining member was not required to pay dues by virtue of his position as shop steward. The Union was not decertified at the Natchez mill until July 1979. In the interim, however, Local 681 expended thousands of dollars representing the employees at the Natchez mill despite the fact that it received nothing in dues or fees from those employees during the same period. This outlay by the Union reflected its statutory duty to represent all employees in the bargaining unit, whether union or nonunion. See, e.g., Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564-65, 96 S.Ct. 1048, 1056, 47 L.Ed.2d 231 (1976); Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964). This obligation arises from the fact that the union, as the exclusive bargaining representative of all employees, must serve the interests of all employees in the bargaining unit “without hostility or discrimination toward any.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967). The duty was first recognized by the Supreme Court in Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), in which a union whose constitution excluded blacks from membership sought a collective bargaining agreement that also would have excluded black firemen from service with the railroad. The duty of fair representation has grown enormously in scope since 1944, however, from avoiding racial discrimination to providing daily representation: The bargaining representative’s duty . . . does not come to an abrupt end . . . with the making of an agreement between union and employer. Collective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract. The bargaining representative can no more unfairly discriminate in carrying out these functions than it can in negotiating a collective agreement. Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see Abood v. Detroit Board of Education, 431 U.S. 209, 221-22, 97 S.Ct. 1782, 1792, 52 L.Ed.2d 261 (1977). The National Labor Relations Board (NLRB) has repeatedly held that a union cannot lawfully refuse to process a grievance of an employee in the bargaining unit on the ground that he is not a union member. E.g., International Brotherhood of Electrical Workers, Local 1504, 211 NLRB 580 (1974); Locals 186, 381, 396, et al., affiliates of the International Brotherhood of Teamsters, 203 NLRB 799 (1973); United Steelworkers of America, Local 937, 200 NLRB 40 (1972). These decisions have compounded the problem of “free riders” — employees who obtain the benefits of union representation while refusing to join the union and thereby support the cost of its activities. Fifty years ago, when the Wagner Act was passed, free riders simply benefitted from accomplishments that the union would have sought in any event, such as higher wages or improved working conditions. Today, free riders can invoke union efforts on their particular behalf, such as the prosecution of nonunion grievances and arbitrations, and thus affirmatively deplete the union’s treasury. The difference is like that between the house guest who warms himself beside the fireplace, and the guest who demands that the thermostate be turned up. In short, the problem of free riders has become more pronounced as the responsibilities of unions have grown. In the interest of “fair representation,” however, the NLRB has frustrated union efforts to recoup these costs from free riders. In Hughes Tool Co., 104 NLRB 318 (1953), for example, the Board held that a union could not charge nonunion employees a flat rate for handling their grievances, or a graduated fee for handling arbitrations. In Machinists Local 697, 223 NLRB 832 (1976), the Board held that a union could not charge nonunion employees the actual costs of handling their grievances and arbitrations. In both cases the Board reasoned that these charges were unlawful because similar fees were not charged to union members, thereby ignoring the fact that the members had presumably already met the expense of such representation in their dues. Whatever the wisdom of these NLRB decisions, Local 681 continued to represent the employees at the Natchez mill long after it ceased to have any dues-paying members at that location. Between May 1976 and June 1978, the Union’s agent travelled to Natchez once a week to handle grievance, insurance, pension, vacation, and other matters and to attend safety meetings. The Union successfully prosecuted 19 grievances, negotiated a new contract after frequent bargaining sessions resulting in wage increases and other added benefits for the Natchez employees, and hired an attorney to represent Local 681 in a Title VII civil rights action. In the fiscal year ending June 30, 1977, Local 681 expended approximately $10,700 in order to represent the employees at the Natchez mill. It is not surprising that the Union attempted to remedy this erosion of its financial resources by proposing the “representation fee” clause to the company during contract negotiations in May 1977. The clause • would have collected from each nonunion employee “a pro rata share of the costs and expenses incurred by the union that are directly related to enforcing and servicing the collective bargaining agreement,” as determined by “an independent audit to determine those services performed by the union directly related to the collective bargaining process.” The initial representation fee required of the 38 employees at the Natchez mill would have been $5 a week, allowing the Union to collect approximately $9,900 a year or somewhat less than the $10,700 expended by Local 681 in representing those employees. The clause specifically stated that in no event would the representation feh exceed the dues and assess-’ ments required of Union members. Had the Natchez employees remained in the Union and paid all their dues and assessments under the pre-existing dues structure, the Union would have collected a total of $14,-200 — which would have provided approximately $3,500 in additional income that it could have used for institutional expenses., II. THE LEGAL ISSUE There is no doubt that the proposed representation fee violates the .Mississippi right-to-work laws, which state: No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization. Miss.Const. Art. VII, § 198-A; Miss.Code Ann. § 71-1-47. This observation precipitates but does not resolve the court’s inquiry, of course. State law generally cannot be applied to limit the arrangements that unions and employers may make concerning subjects of collective bargaining made mandatory by the National Labor Relations Act, and the administrative law judge specifically found that the representation fee proposed by the Union was such a mandatory subject of bargaining under sections 8(a)(3) and 8(d) of the Act, 29 U.S.C. §§ 158(a)(3), (d). Initial Decision, 252 NLRB 1299, 1303 (1980). In section 14(b) of the Act, however, Congress authorized the states to enact statutes in conflict with this federal law. Section 14(b) provides: Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law. 29 U.S.C. § 164(b). In other words, when state laws that fall within the scope of section 14(b) conflict with provisions of federal law, state law governs. But the extent to which section 14(b) authorizes states to limit collective bargaining, an area in which Congress has otherwise preempted the field, is clearly a federal question. Oil, Chemical & Atomic Workers v. Mobil Oil Corp., 426 U.S. 407, 417, 96 S.Ct. 2140, 2145, 48 L.Ed.2d 736 (1976); NLRB v. Tom Joyce Floors, Inc., 353 F.2d 768, 770-71 (9th Cir. 1965). We must therefore determine whether the Mississippi laws banning payment of “charges of any kind” constitute a prohibition of “membership” that is • within the scope of section 14(b). The Supreme Court has carefully left open the precise definition of what it means to require “membership” in a labor organization, as that term is used in section 14(b). In companion cases decided in 1963, the Court did hold that the term “membership” could be “whittled down to its financial core.” At issue was the legality of the “agency shop” arrangement, which leaves union membership optional but requires nonunion employees to pay to the union sums equal to the initiation fees and dues of union members. In NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963), the Court observed: It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. “Membership” as a condition of employment is whittled down to its financial core. Id. at 742, 83 S.Ct. at 1459. As a result, the Court said, the “agency shop” is the practical equivalent of the “union shop,” an arrangement under which all employees must join the union within a specified period of time as a condition of continued employment. Unions were therefore permitted to bargain for an agency shop in any state in which they could bargain for a union shop, NLRB v. General Motors Corp., but could not bargain for an agency shop in any state where the right-to-work laws prohibited bargaining for a union shop. Retail Clerks v. Schermerhorn, 373 U.S. 746, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963). Schermerhorn, however, clearly left open the status of the kind of representation fee at issue in this case. Originally, the petitioners in Schermerhorn had likened their proposal to the agency shop involved in General Motors. Upon briefing and argument, however, the petitioners made a last-minute effort to distinguish their contract from an agency shop. 373 U.S. at 752 n.4, 83 S.Ct. at 1465 n.4. The clause provided that nonunion employees would contribute to the union “for the purpose of aiding the Union in defraying costs in connection with its legal obligations and responsibilities as the exclusive bargaining agent of the employees in the appropriate bargaining unit.” The petitioners claimed that this confined nonunion payments “to collective bargaining purposes alone,” and prohibited the union from using the payments “for institutional purposes unrelated to its exclusive agency functions.” Id. at 752, 83 S.Ct. at 1465. The Supreme Court was “wholly unpersuaded” by this “belated” attempt to distinguish General Motors. Justice White’s opinion gave two primary reasons. First, contrary to the petitioners’ suggestion, the clause at issue imposed “no ironclad restriction” on what the union could do with the payments it received from nonmembers, and therefore could have allowed the union to use these payments for “institutional items.” Id. at 753, 83 S.Ct. at 1465. Second, because the proposed “service fee” was set equal to the union’s initiation fees and dues, and because the union dues could be expended for a variety of purposes, there was no guarantee that a nonmember might not pay more of the union’s collective bargaining costs “than his pro rata share.” Id. at 754, 83 S.Ct. at 1466. The Court explained: If the union’s total budget is divided between collective bargaining and institutional expenses and if nonmember payments, equal to those of a member, go entirely for collective bargaining costs, the nonmember will pay more of these expenses than his pro rata share. The member will pay less and to that extent a portion of his fees and dues is available to pay institutional expenses. The union’s budget is balanced. By paying a larger share of collective bargaining costs the nonmember subsidizes the union’s institutional activities. Id. Accordingly, there was no reason why the clause should, “in the present posture of the case, be construed against respondent to raise a substantial difference between this and the General Motors case.” Id. at 752, 83 S.Ct. at 1465. It would be anomalous, the Court said, to let Florida ban agency shop agreements under which union members and nonmembers paid equal shares while forbidding Florida to ban an arrangement in which nonmembers might pay even more bargaining costs than members. Id. at 754, 83 S.Ct. at 1465. By discussing the Schermerhorn petitioners’ position, clearly only a product of appellate strategy, in so much detail, the Court signalled that it considered the status of the kind of representation-feé proposal now before us to be a difficult question. The Court’s discussion draws a clear distinction between agency shops and the collection of fees to cover representation costs. Schermerhorn does not govern this case, because the belated effort to distinguish General Motors failed. If the representation fee proposed by the Union in this case meets the two conditions laid down in Schermerhorn —“an ironclad restriction” against using nonmember payments for purposes other than servicing the collective bargaining agreement, with nonunion members paying no more than their pro rata share of such expenses — then the clause conceivably does not require “membership in a labor organization” and therefore is beyond the reach of state right-to-work laws whose application depends on section 14(b). The NLRB, which affirmed the decision of the administrative law judge in a simple one-page decision and order, 252 NLRB 1299 (1980), seems not to have devoted the careful attention to this case that Schermerhorn requires. Nothing in subsequent Supreme Court decisions has departed from its dicta in Sehermerhorn. The question before us is open, and is a matter of some significance. Our answer must center on the congressional intent in enacting section 14(b). The legislative history is lengthy, often dry, and relatively inconclusive, but it casts serious doubts on the reasoning of the majority. III. THE LEGISLATIVE HISTORY OF SECTION 14(b) A fundamental tension in labor law, as indeed in constitutional law, exists between encouraging majority rule and protecting the rights of the minority. Congress faced this problem many times when it enacted the historic Wagner Act and amended it with the Taft-Hartley Act, and the genesis and scope of section 14(b) must be understood in light of this tension. The Wagner Act, passed in 1935 during an explosive period in our social history, gave workers the right to organize unions and to bargain collectively with their employers. The legislation was a factor in the doubling of union membership between 1933 and 1937, a period coinciding with the rise of the great industrial unions. It was also followed by dramatic and often violent strikes. World War II brought a momentary hiatus in industrial strife, but at its conclusion “the no-strike era came to an end, and in 1947 the country experienced the largest strike wave in its history.” Stone, The Post-War Paradigm in American Labor Law, 90 Yale L.J. 1509, 1523 (1981). Anti-union sentiment was widespread, and representatives on both sides of the aisle agreed that legislative reforms were required. Congress could conceivably have pulled back from the labor issue entirely and returned the question to the hands of the states. Instead, the Taft-Hartley Act of 1947 concentrated on amending the structure of the NLRB and revising methods for resolving representation disputes. Section 14(b) was not the most substantive change amidst these reforms. It did not enact a new policy, but simply made explicit a congressional understanding that had accompanied passage of the earlier Wagner Act concerning the general tension between rule by union majority and the rights of nonunion minorities. A full discussion of section 14(b) must therefore begin with the broader problem, and the evolution in congressional attitudes toward the rights of the nonunion minority in a given bargaining unit. At the outset, it may help to define some of the terms that frequently arose in this context. An open shop allows the employer to hire without regard to union membership, and lets employees obtain or refuse membership in the union as they please. A closed shop requires the employer to hire union members only. A union shop allows the employer to hire without regard to union membership, but requires employees to become members of the union within a specified time after they have been hired. Preferential hiring requires the employer to give a preference to union members, although nonunion employees may be hired if union members are unavailable. Finally, maintenance-of-membership agreements let employees obtain or refuse membership in the union as they please, but require that employees who become union members maintain their membership for the duration of the agreement. The closed shop and the union shop played particularly important roles in shaping the congressional views about minority rights under a model of trade union democracy. A. The Closed Shop The Wagner Act, with its emphasis on collective bargaining, treated minority rights almost as an afterthought. Section 9(a) provided: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, Provided, That any individual employee or group of employees shall have the right at any time to present grievances to their employer. Ch. 372, § 9(a), 49 Stat. 453 (1935) (codified at 29 U.S.C. § 159(a)). Section 8(3) outlawed attempts by employers to force workers into company unions or discourage them from forming their own, but distinguished these practices from union bargaining with employers over means to control the problem of free riders: It shall be an unfair labor practice for an employer 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 act ... shall preclude an employer from making an agreement with a [qualifying] labor organization ... to require as a condition of employment membership therein.... Ch. 372, § 8(3), 49 Stat. 452 (1935) (codified at 29 U.S.C. § 158(a)). Several Senators criticized the Act for ignoring the rights of employee minorities. See, e.g., 79 Cong.Rec. 7671 (1935) (Senator Tydings) (“As I see this particular section [§ 9(a) ], it looks to me like an effort to force every man in America to join a certain kind of union, whether or not he wishes to join that union”); id. (Senator Hastings) (“Is it not true that the individual worker should be free to decline association with his fellows? Can that be true under this bill?”). Senator Wagner responded: The Senator is concerned with what happens to the minority. Under this proposed legislation .. . there will be no advantage which a majority can have under an agreement to which the minority is not also entitled, and in order to have that advantage the minority need not join any organization. It can join or not join, either way. It cannot be discriminated against under any other provision of the law. Id. at 7673. But Senator Hastings was unconvinced. He turned from section 9(a) to section 8(3), and reiterated the charge that the bill would require all workers to join a union regardless of their wishes. Senator Wagner again responded: No, Mr. President; the Senator apparently does not understand that provision. It does no more than to legalize a closed-shop agreement, which is a matter of agreement between employer and employee where it is now sustained by the public opinion of the State.... The provision will not change the status quo. That is the law today; and wherever it is the law today that a closed-shop agreement can be made, it will continue to be the law. By this bill we do not change that situation. Closed-shop agreements are made all over the country, and they are matters of agreement. The question of compulsion is not involved in them. Id. at 7673-74. But Senator Wagner turned out to be wrong. Closed-shop agreements, which prohibited hiring any employee who was not already a union member, did involve compulsion. Between 1935 and 1947, the closed shop became notorious. Union leaders, with unreviewable authority to admit new union members and expel old ones, acted in a corrupt and undemocratic fashion to perpetuate their power. Articles in the popular press and legal journals condemned closed shops and the control they gave unions over the careers of workers. See, e.g., Newman, The Closed Union and the Right to Work, 43 Colum.L.Rev. 42 (1943) (arguing that unions operating under closed shops used restrictive admissions requirements to create labor monopoly, perpetuate union management, and protect social prejudices). The Senate Report accompanying the Taft-Hartley Act found: Until the beginning of the war only a relatively small minority of employees (less than 20 percent) were affected by contracts containing any compulsory features. According to the Secretary of Labor, however, within the last 5 years over 75 percent now contain some form of compulsion. But with this trend, abuses of compulsory membership have become so numerous there has been great public feeling against such arrangements. It continued with specific examples: In the maritime industry and to a large extent in the construction industry union hiring halls now provide the only method of securing employment. . . . Extension of this principle to licensed deck and engine officers has created the greatest problems in connection with the safety of American vessels at sea. Numerous examples were presented to the committee of the way union leaders have used closed-shop devices as a method of depriving employees of their jobs, and in some cases a means of securing a livelihood in their trade or calling, for purely capricious reasons. In one instance a union member was subpenaed to appear in court, having witnessed an assault upon his foreman by a fellow employee. Because he told the truth upon the witness stand, the union leadership brought about his expulsion with a consequent loss of his job since his employer was subject to a closed-shop contract. Numerous examples of equally glaring disregard for the rights of minority members of unions are contained in the exhibits received in evidence by the committee. S.Rep.No. 105, 80th Cong., 1st Sess. 6-7 (1947), I Legislative History of the Labor Management Relations Act 412-13 (1948) (hereinafter Leg. Hist.). Animosity toward the closed shop was widespread in Congress. See, e.g., 93 Cong. Rec. 3453 (1947) (remarks of Representative Holifield); id. at A1223 (extension of remarks by Representative Landis). Representative Jonkman observed that “the principle criticism of unions today is not directed at unionism itself but to the irresponsible and corrupt management and leadership into which many unions have drifted. It requires but little reading of the hearings on this bill to cause one to shudder at the tyranny and depredation committed by such union officers and leaders.” Id. at 3560. Accordingly, Congress added section 8(a)(3) in the Taft-Hartley Act banning the closed shop. Ch. 120, tit. 1, § 8(a)(3), 61 Stat. 140 (1947) (codified at 29 U.S.C. § 158(a)(3)). That section continued: no employer shall justify any discrimination against an employee for nonmember-ship 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 initiation fees uniformly required as a condition of acquiring or retaining membership. Id., 61 Stat. at 141. B. Union Shops and Union Security It is absolutely crucial to distinguish congressional revulsion toward the closed shop from the congressional treatment of other union security agreements. Congress abolished the closed shop, but it retained lesser forms of union security as subjects of mandatory bargaining under federal law. The closed shop and section 14(b) were thus viewed in different contexts because they focused on different forms of union security agreements. The majority opinion obfuscates this distinction. The Senate Report that it quotes on page seven, which is said to demonstrate that Congress enacted section 14(b) in order to let the states make their own judgments on the issue of free riders, is not a discussion of section 14(b) at all. The Senate Report only addressed the decision to ban the closed shop, as demonstrated by the paragraphs immediately following the paragraph quoted by the majority: The committee has taken into consideration these arguments in reaching what it considers a solution of the problem which does justice to both points of view. We have felt that on the record before us the abuses of the system have become too serious and numerous to justify permitting present law to remain unchanged. It is clear that the closed shop which requires preexisting union membership as a condition of obtaining employment creates too great a barrier to free employment to be tolerated. . . . This not only permits unions holding such monopolies over jobs to exact excessive fees but it deprives management of any real choice of the men it hires.... If trade-unions were purely fraternal or social organizations, such instances would not be a matter of congressional concern, but since membership in such organizations in many trades or callings is essential to earning a living, Congress cannot ignore the existence of such power. S.Rep.No. 105, 80th Cong., 1st Sess. 6-7 (1947), Leg.Hist. at 412-13. The Senate Report could not possibly have discussed section 14(b) in any event, because that section originated in the House, was not part of the Senate bill, and was adopted by the Senate only after conference. It is true that several members of Congress saw no real difference between the closed shop and the union shop, and urged that both be abolished. Representative Fisher declared that “[t]he union shop and the closed shop are Siamese twins. In either case a man cannot work unless he belongs to the union, whether he wants to belong or not.” 93 Cong.Ree. 3555 (1947). He observed that “the right to work is one of the most sacred rights a man has,” and called the union shop “a form of involuntary servitude.” Id. Representative Hoffman also urged that a man should have the right to join or not to join, to be bound by or not to be bound by, union rules. If this Congress wants to forsake the American principle that the man who must live by toil, who must work if he would eat, have clothing, a home, and be able to provide for his family — if this Congress wants to turn its back upon that principle and say that no man shall work when the employer and the bare majority of the employees say he cannot work unless he conforms to their rules and restrictions — it has the power to do so. Id. at 3554. Representative Abernathy condemned a system that would have workers “paying tribute to someone else” in order to work. Id. at 3555. Representative Jonkman said: I have, I dare say, thousands of labor constituents in my district who cannot conscientiously become members of certain unions because they cannot and dare not accept joint responsibility for the conduct of leaders of such type. They should not be compelled by the union-shop provision in this bill to accept that stigma but have the right to refrain from joining any union whose leaders engage in disreputable practices. It is, of course, true that all legislation is the result of compromise. But to compromise on this principle is as I said at the outset a further frittering away of a fundamental American freedom. Id. at 3560. These criticisms were unavailing, of course. Congress added provisions making it more difficult for workers to obtain a union shop, but it retained the union shop as a mandatory subject of bargaining in-section 8(a). Several members emphasized that this policy was required by simple equity. See, e.g., 93 Cong.Rec. 3546-47 (remarks of Representative Celler); id. at 3558 (remarks of Representative Robsion). It is significant, however, that when Representative Hoffman offered an amendment designed to make it clear that a worker could not be “dented employment unless he joins,” he was persuaded to withdraw that amendment after Representative Barden called his attention to section 14(b). Id. at 3561-62. C. Section 14(b) Section 14(b) was not a controversial aspect of the Taft-Hastley Act because Congress considered it merely to restate the law under the Wagner Act. The Senate Report to the 1935 Wagner Act had explained that “the bill does nothing to facilitate closed-shop agreements or to make them legal in any State where they may be illegal.” S.Rep.No.573, 74th Cong., 1st Sess. 11 (1935); see H.R.Rep.No.1147, 74th Cong., 1st Sess. 19-20 (1935). By enacting section 14(b) in 1947, Congress reiterated the point that it had not been the intention of the earlier Congress “to override State laws regulating the closed shop.” S.Rep.No.105, 80th Cong., 1st Sess. 6 (1947), Leg.Hist. at 412; see H.R.Rep.No.245, 80th Cong., 1st Sess. 44 (1947), Leg.Hist. at 335. It was never the intention of the National Labor Relations Act, as is disclosed by the legislative history of that act, to preempt the field in this regard so as to deprive the States of their powers to prevent compulsory unionism. Neither the so-called “closed shop” proviso in section 8(3) of the existing act nor the union shop and maintenance of membership proviso in section 8(a)(3) of the conference agreement could be said to authorize arrangements of this sort in States where such arrangements were contrary to the State policy. To make certain that there should be no question about this, section 13 was included in the House bill. The conference agreement, in section 14(b), contains a provision having the same effect. H.R.Conf.Rep.No. 510, 80th Cong., 1st Sess. 60 (1947), Leg.Hist. at 564. It may be inferred, of course, that the decision to spell out the existing law in the Taft-Hartley Act was prompted by the same reaction against union abuses that had led Congress to ban the closed shop. The legality of the union shop had been preserved over the vehement objections of many opponents, but only after Congress took steps to correct the abuses of the union shop as well. The House Report was careful to explain these limitations in detail: The bill bans the closed shop. Under carefully drawn regulations it permits an employer and a union voluntarily to enter into an agreement requiring employees to become and remain members of the union a month or more after the employer hires them or after the agreement is signed. Such agreements are lawful, however, only if the employees by secret ballot have selected the union as their bargaining agent, and if the majority of all the -employees, by a separate secret ballot, -authorize the union to enter into the agreement, and if agreement is not prohibited by State law. An employee may be expelled from the union and thus forced to leave his job only if the expulsion is by reason of his failing to pay fees and dues imposed upon employees generally. Under this clause, employers may select their own employees. Employees have 30 days to decide whether or not to join the union. Unions may not cause the discharge of employees by discriminating against them. The agreement must be voluntary. Unions may not strike to compel employers to enter into such agreements. They are subject to loss of bargaining rights if they do. H.R.Rep.No.245, 80th Cong., 1st Sess. 9 (1947), Leg.Hist. at 300 (emphasis added). Clearly, the predominant if not the only purpose of section 14(b) was to provide yet one more cheek on the abuses that could exist under “compulsory unionism.” The crucial point to be drawn from the legislative history of section 14(b), however, is that Congress never specifically defined what it meant by “compulsory unionism.” The paragraph from the House Report quoted above is the entire passage of a section headed “compulsory unionism.” The Conference Report stated that section 14(b) would prevent “any closed shop, union shop, maintenance of membership, or other form of compulsory unionism agreement in any State where the execution of such agreement would be contrary to State law. Many States have enacted laws or adopted constitutional provisions to make all forms of compulsory unionism in those States illegal.” H.R.Conf.Rep.No.510, 80th Cong., 1st Sess. 60 (1947), Leg.Hist. at 564. But this too leaves the content of the term undefined. The best evidence of the congressional intent may therefore lie in the kinds of “compulsory unionism” that members of Congress understood had been banned by the state right-to-work laws. Representative Holifield, a defender of closed shops as well as union shops and maintenance-of-membership agreements, noted that of the 77 percent of all employees in unions [that worked] under some form of union security, 30 percent were under closed-shop contracts, 15 percent under union-shop contracts, 29 percent under maintenance-of-membership contracts, and 3 percent under preferential-hiring contracts — another form of union security provision. 93 Cong.Rec. 3453. He observed: Under existing law all of these types of shops are legal excepting in some few States in which hysterical legislatures, reckless of constitutional consequences, have banned the closed shop. Id Representative Barden contended that in view of the fact that many of the States have passed laws dealing with the closed shop, why, then, the committee felt, and I am sure the whole House will feel, that the States should be recognized and their laws should certainly be given full power and effect as far as a State is concerned. Id at 3562. Representative Case of South Dakota urged adoption of section 14(b) because it strengthens the provisions of the bill so far as bans on the closed shop are concerned in the States which have taken action. I think now that there are about 12 States that have taken formal action and another dozen that have that kind of action under consideration. ,-fri: át 3559. Similarly, in the Senate, the emphasis was on state laws prohibiting the dosed shop. Senator Taft defended the section 8(3) proviso, noting that it “did not in any way prohibit the enforcement of State laws which already prohibited closed shops.” Id. at 6520. His summary of the bill explained that section 14(b) would allow states to prevent “compulsory union membership agreements” where such agreements violated state laws against “compulsory unionism.” Id. at 6445. Senator Barkley denounced the bill because union shops would be prohibited “in any State where a legislature has passed what we call a nonunion or closed-shop bill,” id. at 6532, and Senator Morse objected to the “antilabor bias” of tjie bilk Thus, we lay down in the bill a very full and complete national policy as to closed- and union-shop agreements. At the same time, the bill provides in section [14(b)], however, that the national policy may be entirely disregarded and superseded by the States if they desire to impose a more restrictive policy on the same subject matter. Id. at 6456 (emphasis added). At no time, in the committee reports or during the debates, was it intimated that “compulsory unionism” meant anything more than the closed shop, union shop, and conceivably contracts requiring maintenance of membership or preferential hiring of union members. One final observation, if an obvious one, should be made about the legislative history of section 14(b). The debates make it clear that Congress knew that several states had banned the closed and union shop, but the legislative history does not suggest that Congress knew these laws sometimes prohibited payment of “any dues, fees or charges of any kind to any labor union” as well. Congress emphatically did not intend to give the states a free hand in amending federal labor law. Representative Kearney suggested, and Representative Hoffman moved, that section 14(b) be amended by inserting a period and striking out the rest of the section, to read: Nothing in this act shall be construed to invalidate any State law or constitutional provision. 93 Cong.Rec. 3559, 3562. The objections to this amendment were obvious. As Representative Case of South Dakota stated: Of course, if you put a period there, it would be pretty broad because it would deal with subjects other than the right of the employer to