States May Require Public Sector Unions To Obtain Affirmative Approval Before Using Non-member's Fees For Political Purposes

Davenport v. Washington Education Association (2007) ______ U.S._______; 07 C.D.O.S. 6811, filed June 14, 2007)

Agency shop arrangements in the public sector raise First Amendment questions because they allegedly force individuals to contribute money to unions as a condition of government employment.  The argument is that unwilling government employees are thereby forced to finance speech and activities with which they may not necessarily agree.  Nevertheless, non-consenting public employees may be required to pay for the activities of exclusive representative unions as long as objecting non-members are not required to pay for ideological activities that are not germane to the union’s collective bargaining duties.  In the case of Chicago Teachers Union v. Hudson (1986) 475 U.S. 292, the United States Supreme Court set forth procedural requirements which public sector unions must observe in order to ensure that objecting non-members can prevent the use of their fees for “impermissible” purposes.

Although the voters of the State of California recently rejected a similar measure, the voters of the State of Washington passed a measure allowing public sector unions to charge members an agency fee equivalent to the full membership dues of the union and have this fee collected by the employer through payroll deductions.  However, the Fair Campaign Practices Act referred to as “§760” in 1992 restricted the union’s ability to spend agency fees that it collects.  “A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee unless affirmatively authorized by the individual.”

The normal practice of public sector unions is to send what is referred to as a “Hudson packet” to non-members advising non-members of the amount of the fee, the manner in which it is calculated, and the right to object to the calculation of the fee.  Unless objection to the use of all of the money collected is received within a given period of time, the union transfers the entire amount out of escrow and into its general treasury. It may then use those funds for any purpose.  Section 760 reverses the burden from the non-member to object, and places the burden upon the union to solicit and obtain affirmative approval for the expenditure of the funds for political purposes upon the union.

The unions’ practices were undoubtedly based upon reliance upon language appearing in the Hudson case in footnote 16 (475 U.S. at 306) “[D]issent is not to be presumed – it must be affirmatively made known to the union by the dissenting employee.”  Justice Scalia, writing for the majority, determined that the Supreme Court of Washington read far too much into the Supreme Court’s admonition that “dissent is not to be presumed.”  Justice Scalia explained “We meant only that it would be improper for a court to enjoin the expenditure of the agency fees of all employees, including those who had not objected, when the statutory or constitutional limitations established in those cases would be satisfied by a narrower remedy.”  The Supreme Court overturned the decision of the Washington State Supreme Court.

The Supreme Court opinion noted that the Washington Education Association argued an entirely different rationale than that relied upon by the Supreme Court of Washington.  The argument of the union was that section 760 constituted an unconstitutional restriction by §760 on how the union may spend “its” money.  Justice Scalia chided the Washington Education Association, stating that section 760’s requirement for affirmative approval was a condition placed upon the union’s “extraordinary state entitlement to acquire and spend other people’s money.”  This was a not unreasonable content-based restriction placed upon an entity which was subsidizing speech.  “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.”