Court considering union dues case

By MICHAEL REITZ
The Providence Journal
Friday, June 01, 2007

The U.S. Supreme Court recently heard oral arguments in the consolidated cases of Washington vs. Washington Education Association and Davenport vs. WEA, which could have major implications for organized labor and the free- speech rights of workers nationwide.

Organized labor's numbers have been falling for decades. The U.S. Department of Labor reported in January that the number of union members is at a record low. Over the last year union membership as a percentage of the total workforce declined in 31 states. Today only 12 percent of workers are members of a union, compared to 35 percent in the 1950s. As a result, labor unions fight any common-sense measures that give workers a choice whether to pay dues.

The cases before the Supreme Court came out of Washington state, where workers can be required to pay union dues as a condition of employment. In 1992 the state passed a law requiring unions to get permission from these non-members before using their mandatory dues on political activity. The Washington Education Association (WEA) ran afoul of this law in 2001 after my organization, the Evergreen Freedom Foundation, filed a complaint with the state attorney general. A trial court fined the WEA $590,375 for its intentional violations. Amazingly, the state Supreme Court threw the law out as an "undue administrative burden" on the union's free-speech rights.

Washington Attorney General Rob McKenna and a group of concerned teachers appealed the cases to the U.S. Supreme Court. The Supreme Court in several landmark cases has held that workers cannot be forced to pay for a union's ideological activities. The cases include Abood vs. Board of Education and Communications Workers vs. Beck. Typically, workers have an opportunity to object to the union's spending and can get a refund of dues. The unique question in the Washington cases, however, was whether states can require unions to get permission before spending dues on politics.

If the questions from the justices are any indication, the court could be poised to issue a ruling that reshapes national labor policy.

The Washington Education Association claimed the requirement to get permission imposed an "insurmountable hurdle" that "cuts deeply" into the First Amendment rights of the union. Justice Anthony Kennedy repeatedly scolded the union lawyer for ignoring the rights of teachers. "You begin by talking about the First Amendment, but you proceed as if there are no First Amendment rights of workers involved at all," he said.

At least four justices asked how the Washington law could be unconstitutional when past court decisions have allowed even broader regulation of unions. When the WEA lawyer replied that non-member rights are "fully protected" under current case law, Justice David Souter asked, "Why can't the state protect it more?"

The WEA lawyer argued that the law is flawed because it only regulates unions, while leaving corporations and trade associations untouched. The justices seemed to reject this argument. The union doesn't own the funds, pointed out Justice Ruth Bader Ginsburg. "If the non-member wants it back, the non-member would be entitled," she said.

Justice Antonin Scalia was even more forceful. Unions are given "extraordinary power to exact funds from people," he said, "but only for certain . (T)he state says, however, you will not use this money for this ... purpose without their consent."

Chief Justice John Roberts appeared to agree that teachers should have final say. "Well surely, they get to make that decision, don't they? Under the statute, it's their decision."

Arguing in favor of teachers' rights, Attorney General McKenna summarized the issue vividly. These individuals have already resigned from the union, and it's reasonable to assume they don't want their money spent on the union's political priorities. "Non-members should not be required to say no twice," said McKenna.

If the Supreme Court rules in favor of the teachers, union officials will have to learn a lesson every first-grader is taught: You must ask permission before taking something that does not belong to you.

(Michael Reitz is legal counsel of the Evergreen Freedom Foundation. )