High Court to Decide Whether Union Rights Trump Personal Rights

Published May 1, 2007

The U.S. Supreme Court is considering oral arguments in the consolidated cases of Washington v. Washington Education Association and Davenport v. WEA, which could have major implications for organized labor and the rights of workers nationwide.

If the questions Justices asked during the January presentation of oral arguments are any indication, the Court may be poised to issue a ruling that reshapes national labor policy by further protecting individuals’ free speech rights.

Union Lawyers Scolded

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,” Kennedy said.

At least four Justices asked how the Washington law at issue in the case could be unconstitutional when past Court decisions have allowed even broader regulation of unions. When the WEA lawyer replied that non-union-member rights are “fully protected” under current case law, Justice David Souter asked, “Why can’t the State protect [them] more?”

Permission Required

In Washington, workers can be required to pay union dues as a condition of employment, even if they do not join the union. In 1992 the state passed a law requiring unions to get permission from these non-members before using their mandatory dues for political activity.

The Washington Education Association (WEA) ran afoul of the law in 2001, pointed out by the Evergreen Freedom Foundation in a complaint filed with the state attorney general. A trial court fined the WEA $590,375 for intentional violations. The state supreme court later threw out the law as an “undue administrative burden” on the union’s free speech rights.

Washington Attorney General Rob McKenna (R) and a group of concerned teachers appealed the cases to the U.S. Supreme Court. In several landmark cases, including Abood v. Board of Education and Communications Workers v. Beck, the Court has held workers cannot be forced to pay for a union’s ideological activities.

Typically workers have an opportunity to object to the union’s spending and can get an after-the-fact refund of dues. The unique question in the Washington cases is whether states can require unions to get permission before spending dues on politics.

The WEA claims the requirement to get permission imposes an “insurmountable hurdle” that “cuts deeply” into the First Amendment rights of the union.

Arguments Attacked

The WEA lawyer argued the law is flawed because it regulates only unions, while leaving corporations and trade associations untouched. The Justices seemed to reject that 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,” Ginsburg said.

Justice Antonin Scalia was even more forceful. Unions are given “extraordinary power to exact funds from people,” he said, “but only for certain purposes. … [T]he State says, however, you will not use this money for this purpose without their consent.”

Chief Justice John Roberts appeared to agree teachers should have final say.

“Well surely, they get to make that decision, don’t they? Under the statute, it’s their decision,” Roberts said.

Michael Reitz ([email protected]) is legal counsel of the Evergreen Freedom Foundation, a free-market think tank in Olympia, Washington.

For more information …

Information on Washington v. Washington Education Association and Davenport v. WEA is available at http://www.teachers-vs-union.org.