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January 9, 2007: Unions' Use of Fair Share Fees Up for Review by Supreme Court
Updated On: Aug 13, 2019

Unions' Use of Fair Share Fees Up for Review by Supreme Court

Unions' Use of Fair Share Fees Up for Review by Supreme Court

From The National Law Journal, January 9

Labor unions, money and elections intersect in the U.S. Supreme Court this week in a case testing the ability of states to restrict unions' use of nonmember fees in political activities.

The state of Washington and a group of nonunion teachers are asking the justices to reverse a state Supreme Court ruling that struck down a state law requiring unions to obtain nonmembers' affirmative assent before using their agency shop fees for political purposes. Washington v. Washington Education Association, No. 05-1657; Davenport v. Washington Education Association, No. 05-1589.

The state law places the burden on unions to get covered nonmembers to "opt in" to this use of their fees, a step beyond the more traditional arrangement of putting the burden on nonmembers to "opt out" of the activity.

The Washington Supreme Court held the law to be unconstitutional because it violated the First Amendment speech and association rights of unions and supporting nonmembers.

If the state wins in the high court, more states may move to require unions to get consent from nonmembers, said Jerry M. Hunter, a Bryan Cave partner in St. Louis and a former general counsel to the National Labor Relations Board.

"That is something unions probably would fear," Hunter said.

If the state loses, states would face a "nightmare," said Erik S. Jaffe of the Law Office of Erik S. Jaffe in Washington. Jaffe, who filed an amicus brief supporting the state on behalf of the Cato Institute, a libertarian think tank, and others, said that an affirmance would open a host of similar state laws to challenge.

Colorado Solicitor General Daniel D. Domenico, who filed an amicus brief on behalf of six states, suggests ramifications beyond the election laws. The opt-in requirement, he tells the court, is one tool among many that states have used to balance the interests of unions and workers.

Losing that tool could force states "to reevaluate the rest of their laws in this area," argues Domenico.

The high court challenge is really a "one-state case," countered James Coppess of the AFL-CIO, who filed an amicus brief supporting the Washington Education Association, the state teachers' union that won in the lower court.

"It's a very odd law," he said. "If the justices just decide the case before them, which is what Chief Justice John Roberts strongly declares should be the Court's mode of operation, it won't be any big deal."

The state of Washington authorizes union agency shop arrangements in which every employee represented by a union, even if not a member, must pay a service fee equal in amount to union dues.

In Washington, general membership dues may be used as a source of political contributions.

"Some states allow unions to collect only a percentage from nonmembers related to their bargaining duties, but Washington allows unions to collect 100 percent of dues," said Michael Reitz, legal analyst and director of labor policy for the Evergreen Freedom Foundation, which opposes the union in the high court case.

Two U.S. Supreme Court precedents generally stand for the rule that while agency shop arrangements are permissible, the First Amendment protects nonmembers from being forced to fund a union's political activities that are not related to its collective bargaining duties. Abood v. Detroit Bd. Of Education, 431 U.S. 209 (1977); Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).

In a number of states, unions send "opt out" notices that workers must return in order to enforce their objections.

Washington voters in 1992, through a ballot initiative, adopted a Fair Campaign Practices Act that included the provision now at issue in the Supreme Court.

Section 760 of the act prohibits a labor organization from using agency shop fees paid by nonmembers to make contributions or expenditures to influence an election or to operate a political committee "unless affirmatively authorized by the individual."

STATE RULING

The state Supreme Court ultimately held that the law "impermissibly shifts to the union the burden of the non-members' rights." That shift, it said, inhibits the political speech of the union and supporting nonmembers for the "improper purpose" of increasing the speech of another group -- the dissenting nonmembers. The court also said the law infringed the union's right of association.

"The Washington Supreme Court assumes an extra burden is placed on the union by requiring them to obtain consent," said Bryan Cave's Hunter.

"Clearly the U.S. Supreme Court has recognized there is going to be some burden on the union and that's why they adopted Hudson. The question is: How much burden is unconstitutional?"

In the high court, Washington Deputy Solicitor General William B. Collins and the Davenport group's counsel, Milton L. Chappell of the National Right to Work Legal Defense Foundation, argue that the state court decision incorrectly turns Hudson's minimum protections into the maximum protection that states can authorize and conflicts with U.S. Supreme Court precedent approving opt-in requirements in federal campaign finance laws.

But the Washington Education Association's high court counsel, John M. West, a partner in Washington's Bredhoff & Kaiser, contends that the law is a "content-based restriction that singles out political speech for special treatment."

He also argues the law can't be justified as a regulation of campaign spending because it "sweeps far too broadly" by limiting spending as well in support of ballot propositions.

The union has "some interesting arguments," conceded Jaffe, noting that the law only requires opt-in for certain types of, not all, political activity.

"The initiative would have been more logical had it simply said the union may not keep any money unrelated to bargaining," Jaffe said.

"There has to be an opt-in. In my opinion, that's the constitutional minimum."

 

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