Washington Union Fees Law Goes to Supreme Court

The United States Supreme Court will decide this term an important case involving the use of union fees for political purposes. Specifically, the Court will determine the constitutionality of a Washington law which requires unions to obtain affirmative authorization from nonmembers prior to using their fees for political purposes. At issue is whether the Washington Supreme Court erred when it ruled that the state’s “opt-in” provision violates unions’ First Amendment rights.¹

The Washington “Opt-in” Statute

Washington is one of a number of states that authorizes union security agreements. These agreements require both union and non-union members to contribute dues for costs related to collective bargaining. The non-union members’ dues are referred to as “agency shop fees,” but are functionally equivalent to union dues.² A portion of all the member and non-member dues are used to support political and ideological causes. Non-members opposed to these causes can receive a rebate after going through a lengthy process. 

In 1992, Washington voters passed Initiative 134, which, among other things, required unions to seek “affirmative authorization” from non-union members prior to using their money for political purposes. The initiative was codified as Wash. Rev. Code § 42.17.760 (“§760”).

The law provides that labor organizations “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.” This provision is known as the “opt-in” procedure. Instead of requiring non-union members to first object, or opt-out, the statute places the burden on the unions to seek authorization before using the fees for political purposes. 

Washington Education Association’s Use of Nonmember Dues for Political Purposes

The Washington Education Association (WEA) is the statewide union which represents nearly 70,000 Washington state education employees. In any given year the WEA has roughly 3,000 to 4,000 nonmember agency shop fee payers. 

After §760’s passage, the WEA continued to send out packets to each non-union member which included a letter explaining the non-member’s right to object to fees being used for political purposes. The packets, known as “Hudson packets,” are named after the U.S. Supreme Court decision outlining the minimum procedures unions must follow when notifying nonmembers of their right to withhold agency shop fees for political purposes.³ The Hudson packet provides nonmembers three options: 1) pay the full amount of agency shop fees without a rebate; 2) object to paying the full amount and receive a rebate for fees used for political purposes; or 3) object to paying the full amount and challenge the union’s calculation of the rebate.⁴ 

In 2000, the Washington Evergreen Freedom Foundation (“Evergreen”) filed a complaint with the Washington Public Disclosure Commission arguing that the WEA violated §760. Evergreen argued that the WEA failed to seek the affirmative authorization of all nonmembers before using their fees for political purposes. Based on Evergreen’s complaint, the State of Washington (“State”) filed suit against WEA alleging that the union violated §760.

The trial court ruled in favor of the State declaring §760’s opt-in requirement constitutional. In addition, the trial court found that WEA unlawfully used nonunion member agency shop fees for political purposes. According to the lower court, the WEA violated § 760 because it did not first require non-union members to opt-in before using their fees for political purposes. The trial court issued a judgment of $590,375 against the WEA and forced the union to institute new procedures that would segregate the money collected from members and nonmembers.

On appeal, the court of appeals reversed the trial court, finding §760’s opt-in requirement unconstitutional. The court of appeals ruled that an “affirmative authorization” requirement “unduly burdens unions,” and thus violated the union’s First Amendment right to free speech.⁵ 

The case was appealed to the Washington Supreme Court and consolidated with another case brought by a number of non-union educational employees seeking a refund of their agency fees that were used for political purposes. 

Washington Supreme Court’s Decision

In a 6-3 decision, the Washington Supreme Court upheld the appellate court ruling that §760’s opt-in requirement was unconstitutional. The decision was authored by Justice Pro Tempore Faith Ireland, and joined by Justices Charles Johnson, Barbara Madsen, Bobbe Bridge, Tom Chambers, and Susan Owens. 

The majority first determined whether WEA’s Hudson process satisfied §760’s affirmative authorization requirements. The State argued that §760 required each individual non-union member to provide actual consent, and that simply failing to respond to the Hudson packet did not constitute consent. The union, on the other hand, argued that its Hudson packet process satisfied the affirmative authorization requirement because it provided each individual non-member the opportunity to object, obtain a refund, or prevent their fees from being used for political purposes. 

The court ruled that §760 required more than “a nonresponse to a Hudson packet.” 

Section 760 Declared Unconstitutional 

The court next determined the constitutionality of § 760. The court began its analysis recognizing the competing interests at stake—the right of unions to organize versus non-union members’ right to refuse compulsory dues used for political purposes. 

The court first analyzed International National Association of Machinists v. Street.⁶ In Street, the Supreme Court affirmed the union’s right to collect fees from all employees benefiting from the union’s collective bargaining activities. The Court also held that compulsory dues cannot be used to support political causes if the member disagrees with those causes. Portending its decision in favor of WEA, the Washington Supreme Court cited dictum in Street where the U.S. Supreme Court said, “[D]issent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee.”⁷ According to the Washington Supreme Court, this language suggests that the only way a dissenting employee may obtain a remedy is if that person explicitly opposes the use of funds for political purposes.

The court then discussed Abood v. Detroit Board of Education, which, it said, affirmed that the burden is on the employee—not the union—to make known his or her dissent to the use of union fees for political purposes.⁸ 

The court then analyzed the procedures established by the U.S. Supreme Court in Hudson and Ellis.⁹ The majority reasoned these decisions affirmed that the burden is on the employee to register his or her dissent, not the union. The court determined that an employee who is given a “simple and convenient method of registering dissent has not been compelled to support a political cause” and thus, “has not suffered a violation of his or First Amendment rights.”¹⁰

The majority held that because §760 forces unions to seek affirmative authorization from non-members, the statute unconstitutionally violates the union’s First Amendment right to free speech. According to the court, §760’s built-in presumption that nonmembers automatically dissent unless they affirmatively authorize the use of their fees for political purposes violates the U.S. Constitution. In addition, the court ruled that the presumption of dissent not only violated the union’s First Amendment rights, but also the right of those nonmembers who do not object. 

Applying strict scrutiny as the standard of review, the court ruled that the restriction placed on WEA’s First Amendment right to free speech must be justified by a compelling governmental interest.¹¹ According to the majority, the only interest asserted by the State was the additional First Amendment protection of nonmembers’ rights above those already laid out in Hudson. The court dismissed this argument. It ruled there was no indication or argument that WEA was in fact compelling non-members to support political activities. Instead, the court determined that since WEA utilized the Hudson procedures, it was not violating the non-members’ First Amendment rights. Thus, according to the court, §760 was not narrowly tailored.

The court expanded its analysis by applying Boy Scouts of America v. Dale.¹² In Dale, the U.S. Supreme Court held that New Jersey’s public accommodation law requiring the Boy Scouts to admit a homosexual member violated the Boys Scouts’ First Amendment right of expressive association. According to the Washington Supreme Court, when applying the Dale test to this case, the court was to evaluate whether §760’s opt-in provision significantly burdened the WEA’s expressive activity. Finding that the opt-in provision was a significant burden on the union’s expressive activity, the court next analyzed whether §760’s opt-in provision was narrowly tailored to support a compelling state interest that was “unrelated to the suppression of free speech.”¹³

The court concluded that WEA’s expressive activity was significantly burdened by §760’s opt-in provision. According to the court, “any compelling state interest in protecting dissenters’ rights could be met by less restrictive means other than the § 760 opt-in procedure.”¹⁴ Because WEA’s Hudson—or “opt-out”—procedure was a “constitutionally permissible alternative” that adequately protected both the rights of the union and non-members, §760’s “opt-in” procedure was not narrowly tailored.

Justice Sanders’s Dissent

In a strongly worded dissent, Justice Richard Sanders, joined by Chief Justice Gerry Alexander and Justice Mary Fairhurst, strongly criticized the majority. Justice Sanders argued that the majority’s decision “turn[ed] the First Amendment on its head.”¹⁵ The dissent further castigated the majority by citing to Thomas Jefferson, who once said: “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”¹⁶

Justice Sanders argued that the unions only have a statutory right to require employers to withhold membership dues from members and nonmembers. Without this mechanism, the dissent argued, unions have absolutely no constitutional right to withhold nonmembers’ dues and use them for political purposes. 

Justice Sanders further questioned the majority’s decision that §760’s opt-in procedure violated the union’s First Amendment rights:

Given that the legislature could constitutionally repeal the whole statutory scheme allowing withholding in the first place, I find it nearly beyond comprehension to claim that the legislature, or the people acting through their sovereign right of initiative, could not qualify these statutes to ensure their constitutional application.¹⁷

The dissent next criticized the majority’s argument that §760’s opt-in requirement violated the union’s First Amendment associational rights under Dale. Justice Sanders argued that “association is a two way street that requires a mutual desire to associate by all concerned.”18 In this case, the employees elected not to associate. Thus, according to the dissent, §760’s opt-in requirement could not have violated the union’s First Amendment associational rights because, “it [the union] had no constitutional right to compel membership much less monetary support from nonmembers in the first place.”¹⁹

U.S. Supreme Court

The U.S. Supreme Court heard oral arguments on January 10. Although it is nearly impossible to predict the case’s outcome based on the Justices’ remarks and questions, it appears as though the union’s victory may be short-lived. A number of legal commentators, including those sympathetic to unions, are predicting a reversal based on the questions and comments of the Justices during oral arguments.²⁰

Most notable was Justice Anthony Kennedy’s remarks. Justice Kennedy was skeptical of the union’s argument: 

I mean, you—you begin by talking about the First Amendment but you, you proceed as if there are no First Amendment rights of, of workers involved at all.²¹

A decision will be issued before the Supreme Court adjourns in July for summer recess. 

Editor’s note: In a 9-0 decision written by Justice Scalia, the U.S. Supreme Court upheld the Washington state law (§760). Davenport v. Washington Education Association, 551 U.S. 177 (2007) 

 

Endnotes

1 Washington ex. rel. Washington State Pub. Disclosure Comm’n v. Washington Educ. Ass’n, 156 Wash.2d 543, 130 P.3d 352 (2006). 

2 Wash. Rev. Code § 41.59.100. 

3 Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066 (1986). 

4 See supra note 1, at 550. 

5 State ex rel. Wash. State Pub. Disclosure Comm’n v. Wash. Educ. Ass’n, 117 Wash.App. 625, 71 P.3d 244 (2003). 

6 367 U.S. 740, 81 S.Ct. 1784 (1961). 

7 Id. at 774. 

8 431 U.S. 209, 97 S.Ct. 1782 (1977). 

9 Ellis v. Bhd. of Ry., Airline & S.S. Clerks, 466 U.S. 435, 104 S.Ct. 1883 (1984).

10 156 Wash.2d at 559. 

11 Id. at 565. 

12 530 U.S. 640, 120 S.Ct. 2446 (2000). 

13 156 Wash.2d at 567. 

14 Id. 

15 Id. at 571. 

16 Id. 

17 Id. at 573. 

18 Id. at 578. 

19 Id. at 579. 

20 Jess Bravin, Unions’ Policy Test, Wall St. Journal, Jan. 8, 2007; see also http://electionlawblog.org/archives/007606.html, http://lawprofessors.typepad.com/laborprof_blog/2007/01/oral_ transcript.html, and http://volokh.com/archives/archive_2007_01_ 07-2007_01_13.shtml (Professors Rick Hasen, Paul Secunda, and Eugene Volokh predicting reversal by the U.S. Supreme Court.) 

21 See http://www.supremecourtus.gov/oral_arguments/argument_ transcripts/05-1589.pdf

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