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Public unions suffer setback over fees

By Tony Mauro
First Amendment Center legal correspondent

The Supreme Court yesterday handed a significant defeat to public-employee unions in their battle to continue collecting fees from nonmembers.

Justice Antonin Scalia, writing for a unanimous Court in a case from Washington state, stressed that none in the justices’ long string of precedents in union-fee cases precluded states from requiring that nonmembers “opt in” before unions can collect so-called agency fees. In fact, Scalia said, “it would be constitutional for Washington to eliminate agency fees entirely.”

Whatever its practical impact, the ruling in Davenport v. Washington Education Association represents a shift away from labor unions in the Court’s long-running balancing act between the First Amendment rights of unions to pursue their political goals, on one hand, and the rights of nonmembers not to be forced to pay for political advocacy that is not to their liking.

The Supreme Court has long held that public-sector labor unions may collect "agency fees" from nonmember employees. The theory is that the collective bargaining conducted by unions benefits members and nonmembers alike, and nonmembers should not have a “free ride” by not paying the union for those services. But in Abood v. Detroit Board of Education in 1977, the Court said those employees must be given the chance to “opt out” of letting their fees also be used to fund the union’s political activities, with which they might disagree.

Washington state voters in 1992 approved a measure requiring instead that nonmembers “opt in” to allow their fees to be used for union political activities. In other words, the fees paid by nonmembers could not be used for political activities unless the employees affirmatively chose to allow it. The Washington state attorney general accused the teachers’ union of violating the new rule and won a judgment in court, but the Washington Supreme Court said the opt-in requirement violated the First Amendment because it “upset the balance between nonmembers’ rights and the rights of the union.”

But Scalia said no, using corrective language as a way of keeping courts like Washington’s from extending the Supreme Court’s precedents “well beyond their ambit.”

Invoking a range of First Amendment precedents, including those that touch on union fees, government speech, campaign finance, and the associational rights of private organizations, Scalia said nothing that Washington state had done violated the First Amendment.

"We do not believe that the voters of Washington impermissibly distorted the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the state’s general authorization allowing public-sector unions to acquire and spend the money of government employees,” Scalia wrote. “We hold that it does not violate the First Amendment for a State to require that its public-sector unions receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes.”

The ruling got mostly favorable reviews from conservative and right-to-work groups that have long fought against labor unions’ collecting agency fees from nonmembers.

Timothy Sandefur of the Pacific Legal Foundation called the decision "a great moment for America's workers. “The Supreme Court has upheld the right of the people of Washington to put a stop to the unions' exploitative tactics ... . It's refreshing to see that the Court has vindicated the rights of Washingtonians — and given hope to the workers of other states.”

The National Federation of Independent Business Legal Foundation, which filed a brief in support of Washington state, was also happy with the ruling. “By finding this law constitutional, the Supreme Court has helped close the door on labor plans to roll back established limits on the use of union dues,” said Karen Harned, executive director of the foundation.

But the National Right to Work Legal Defense Foundation was disappointed that the high court had not gone further in blocking unions from collecting fees of any kind from nonmembers. “Certainly it was a good thing that the Washington Supreme Court was overturned,” said spokesman Justin Hakes. “But our view is that no one should be forced to pay union dues.”

The decision also won support from campaign-finance reform advocates, who saw it as ratification for legislation that restricts use of union and corporate funds for political purposes. “The Court soundly rejected the union’s argument that it has a constitutional right to use any funds in its possession to influence elections,” said J. Gerald Hebert, director of the Campaign Legal Center.

The Court's decision does not apply to private-sector unions. In a footnote, the Court also said recent changes to the law enacted by the Washington Legislature did not make the case moot.

(The companion case is Washington v. Washington Education Association.)


Wash. governor OKs union-dues bill

Chris Gregoire signs measure into law despite criticism that it is clear labor-backed attempt to circumvent pending ruling by U.S. Supreme Court. 05.14.07

States may limit how unions use public employees' money
Court says Washington state law doesn't violate union's First Amendment rights. 06.14.07

Quick look at Davenport v. Washington Education Association

High court to consider Calif. law on union organizing
U.S. Chamber of Commerce, Bush administration oppose statute, arguing federal labor law guarantees free-speech rights of employers. 11.20.07

Justices step into dispute over union's use of nonmembers' dues
High court agrees to decide whether fees paid by non-union workers in Maine can be used to finance labor organization's court battles in other states. 02.19.08

2006-07 Supreme Court case tracker

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