Union May Be Required To Obtain Consent To Use Fair Share Fees For Political Purposes

The National Labor Relations Act permits states to regulate their labor relationships with public employees. Many states authorize public-sector unions to negotiate “agency-type shop” agreements that entitle a union to levy fees on employees who are non-union members but whom the union represents in collective bargaining. Such fees are often called “fair share” dues.

For many years, the Supreme Court has held that the First Amendment prohibits public sector unions from using objecting non-members’ fees for “ideological purposes not germane to the union’s collective bargaining duties.” The Court has created a series of procedural requirements that a union must follow if it intends to make fair share assessments.

It was against this backdrop that the Supreme Court considered a statute in the State of Washington that requires a union to obtain the affirmative consent of non-members before using their fees for political purposes. The case arose when the Washington Education Association challenged the “prior consent” portion of the statute on the grounds that it restricted the Association’s free speech rights. When the Washington Supreme Court agreed with the Association that the statute was unconstitutional, the matter was appealed to the United States Supreme Court.

The Court upheld the constitutionality of the Washington statute forbidding the use of fair share fees for political purposes without prior consent. The Court commented that “it is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees. As applied to agency shop agreements with public sector unions like the Association, the Washington statute is simply a condition on the union’s exercise of this extraordinary power, prohibiting expenditure of a non-member’s agency fees for election-related purposes unless the non-member affirmatively consents. The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive.”

The Washington Supreme Court had held that the statute was unconstitutional because prior decisions from the United States Supreme Court had placed upon a fair share member the burden of objecting to the amount of a fair share assessment before the union could be barred from spending fees. The Supreme Court disagreed, holding that “this interpretation of our agency fee cases extends well beyond their proper ambit. Those cases were not balancing constitutional rights in the manner the Association suggests, for the simple reason that unions have no constitutional entitlement to the fees of non-member employees. We have never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond setting a minimum set of procedures which a public sector union must meet.”

Davenport v. Washington Education Association, 2007 WL 1703022 (2007).

This article appears in the July 2007 issue