America’s labor law is already a deck stacked against individual workers. Today the U.S. Supreme Court will hear arguments over whether to allow further expansion of union officials’ privilege to compel employees to pay union dues.
In Davenport v. Washington Education Association (WEA) and Washington v. WEA, both considered to be among the most prominent cases argued this term, the Supreme Court is reviewing a controversial ruling handed down by the Washington State supreme court early last year that struck down a statute regulating government unions.
The ruling broke new ground, declaring that union officials have a First Amendment right to spend on politics the mandatory union dues of employees who are not actually union members.
Up to this point, the U.S. Supreme Court has recognized that, when nonunion members are compelled to pay dues, if the union spends money on political speech, this involves the employees’ First Amendment rights as well, not only the union’s. That’s why a stinging dissent by three Washington State justices blasted the activist majority for “turn[ing] the First Amendment on its head.”
If the U.S. Supreme Court allows the Washington decision to stand, union lawyers could even argue that America’s state “Right to Work” laws are unconstitutional, because such laws ban the collection of any compulsory dues whatsoever from workers who are not union members.
Not an Ideal Defense
The law that was overturned by the Washington court was by no means a stellar example of protection for nonunion workers. Buried in a campaign-finance regulatory package approved by Washington’s voters in 1992, the state’s “paycheck protection” provision required government union officials to obtain prior consent from nonunion employees before spending their compulsory union dues on certain types of political activities. The law left totally intact the special privileges of union officials to seize union dues as a condition of employment, attempting only to regulate the way in which the dues could be spent.
The authors of the state’s campaign-finance law included a narrow definition of politics with the hope of avoiding constitutional and federal preemption challenges. The result was a law that only covered union expenditures made to advocate expressly for the election or defeat of state or local candidates or initiatives. Of course, the vast majority of union political spending is not “express advocacy.” Accordingly, Washington’s “paycheck protection” law only covered a tiny fraction of union political expenditures. Also, in response to the law, the WEA union hierarchy shuffled their accounting methods and raised up teachers’ forced union dues even higher. The result was a 60 percent increase in the funds available for politics.
Nevertheless, somewhere between $10 and $25 of the dues taken from each worker were taken in violation of the new Washington law. So a group of nonunion teachers sought free legal aid from the National Right to Work Legal Defense Foundation to reclaim those funds through a class-action lawsuit its attorneys filed in 2001. Meanwhile, the attorney general’s office brought its own suit against the union for violating the state statute.
This whole controversy is a prime example of the problems that flow from tinkering with public policy through regulation rather than addressing the fundamental issues. In striking down this well-intentioned but ineffective “paycheck protection” regulation, the Washington court has managed to hand union officials new special privileges. Concerns about the effectiveness of “paycheck protection” aside, the ruling cannot be allowed to stand because the precedent will be exploited to attack employee protections in other states.
Searching for the Pony
There may be a silver lining, for this case is not purely defensive in nature. In their briefs for Gary Davenport and other petitioning teachers, National Right to Work Foundation attorneys have asked the U.S. Supreme Court to clarify a statement it made 45 years ago that has plagued independent-minded workers ever since.
By exploiting language from the 1961 U.S. Supreme Court ruling in Machinists v. Street, union officials have established procedures to obstruct nonunion employees from obtaining a refund of their forced union dues spent on politics, largely by requiring them to file petitions to this effect in a very narrow timeframe.
The Street court ruled that employees have a constitutional right not to pay for union ideological activity, but “[employee] dissent is not to be presumed.” Briefs filed in recent weeks by Right to Work attorneys and Washington’s attorney general point out that this opt-out requirement applied only to union members, not to nonmembers. They argue that the Washington State court misapplied Street in striking down the state law, which the court claimed reversed the burden that had been placed on employees to make their objections known. Reversing the state court’s bizarre new finding of “constitutional rights” for unions to spend the compulsory dues of nonmembers should be a no-brainer. But the U.S. Supreme Court should go a step further and clarify that an employee who refuses to join a union has registered sufficient “dissent” and should therefore not be compelled to pay any more dues or fees than the existing law requires.
This simple clarification would mean automatic refunds totaling several hundred dollars annually to each of the approximately one million nonunion American workers laboring in unionized workplaces lacking the protection of a state Right to Work law.
Such a ruling would be common sense. It’s ridiculous to presume that an employee still wants to fund a union’s politics after he has quit or refused to join. A decision to refrain from union membership is rarely taken lightly, since it often results in union harassment and discrimination.
Victory on this point would knock down the labyrinthine procedural hurdles union officials have erected to ensure a steady flow of forced union dues for politics. Today, only a fraction of nonunion members successfully overcome those obstacles.
The U.S. Supreme Court has an opportunity to teach union officials and the Washington State supreme court an important — and, to Big Labor, expensive — lesson: When it comes to compelling political speech, No really means No.
– Mark Mix is president of the National Right to Work Committee.