                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                              No. 97-10490



     ELIZABETH A. SHEA, ET AL.,

                                              Plaintiffs,

     ELIZABETH A. SHEA; JAN CHRISTY;
     PEGGY GALLERANI; VICTOR GARZA;
     NORMA KUNZLER; JOSEPHINE MORTON;
     DEBBIE NICKELL; DONNA ROZENBURG;
     JAMIE SELVA,

                                              Plaintiffs-Appellants,

            versus


     INTERNATIONAL ASSOCIATION OF MACHINISTS
     AND AEROSPACE WORKERS, an unincorporated
     association,

                                              Defendant-Appellee.



       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


                                        2
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

issue.

     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.


                                 3
       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

objectors.

       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


                                         4
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.




                                 5
                             Discussion

     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


                                 6
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

1
       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.
NLRB, 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).

                                      7
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


                                       8
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

2
     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
sanction.”).

                                          9
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.


                                     10
     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.




                                         11
     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

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

                                  12
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.

                                    13
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




                                        14
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


4
      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.

                                         15
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

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

                                      16
     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 NLRB 224 (1995).6




practicable, and we disagree with Kidwell.
6
      The annual renewal requirement was not before the NLRB in
California Saw & Knife Works.

                                        17
      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


                                          18
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


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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.




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Barry, 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

proceedings.

                                     REVERSED and REMANDED




7
     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).

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