Unions' Use of Fair Share Fees
Up for Review by Supreme Court
The National Law Journal, January 9
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
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.
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
Washington Supreme Court held the law to be unconstitutional because it
violated the First Amendment speech and association rights of unions and
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.
is something unions probably would fear," Hunter said.
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.
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.
that tool could force states "to reevaluate the rest of their laws in this
area," argues Domenico.
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.
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."
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.
Washington, general membership dues may be used as a source of political
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
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).
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.
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
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
Washington Supreme Court assumes an extra burden is placed on the union by
requiring them to obtain consent," said Bryan Cave's Hunter.
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
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.
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
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.
union has "some interesting arguments," conceded Jaffe, noting that
the law only requires opt-in for certain types of, not all, political activity.
initiative would have been more logical had it simply said the union may not
keep any money unrelated to bargaining," Jaffe said.
has to be an opt-in. In my opinion, that's the constitutional minimum."