Supreme Court to Hear Washington Lawsuit Opposing Forced Union Dues

Published February 1, 2007

A group of teachers has successfully persuaded the U.S. Supreme Court to review a case in which Washington State’s high court rejected a campaign finance regulation referred to as “paycheck protection.”

The Supreme Court was scheduled to hear arguments in January. The National Right to Work Foundation (NRTW) has provided free legal assistance for the effort.

The underlying Evergreen State law was designed to require government union officials to obtain prior consent from non-union workers before spending their compulsory union dues, taken as a condition of employment, on certain types of political activities.

Threat to Other Laws

In striking down the law, the Washington court said there is a constitutional “right” for union officials to spend on politics the money of employees who want nothing to do with the union.

If upheld, the Washington State Supreme Court rulings in Davenport v. Washington Education Association (WEA) and Washington v. WEA–which Justice Richard B. Sanders’ three-member dissent said “turns the First Amendment on its head”–could open the door for union lawyers to try to attack America’s 22 state right-to-work laws, which make union affiliation and dues payment strictly voluntary.

If union officials have a constitutional right to spend non-union employees’ forced dues on politics, union attorneys could argue states also violate the First Amendment if they ban forced union dues altogether.

4,000 Teachers Affected

National Right to Work Foundation attorneys, working with Steve O’Ban of Ellis, Li, and McKinstry in Seattle, originally filed the Davenport class-action lawsuit in the Superior Court of the State of Washington in 2001, on behalf of more than 4,000 teachers who are not union members but are nonetheless forced to pay union dues or be fired.

The legal action came in response to WEA union officials’ seizure of $10 to $25 annually from the teachers in apparent violation of provisions of the state’s campaign finance law.

A long-awaited ruling in Davenport by the Washington State Supreme Court in mid-March 2006 upheld an appellate court’s decision to overturn a trial court, thereby striking down the state’s last remaining “paycheck protection” provision.

Weak Law

Because Washington’s paycheck protection law left intact all forced unionism privileges, covered only a fraction of state and local electioneering expenditures, and didn’t touch other political and non-bargaining expenditures, the WEA union hierarchy was able to collect and spend more money on politics after the law took effect than before. The union simply changed its accounting practices and then increased forced union dues.

In an April 28, 1998 column titled “Piercing the Popular Myth of Paycheck Protection,” Michelle Malkin, then a columnist with the Seattle Times, called the statute “workaroundable” and reported that, in the first year after the “paycheck protection” law took effect, the WEA increased by 60 percent the amount it spent to influence politics.

Analysts at several free-market think tanks–including The Heritage Foundation, Public Service Research Council, Mackinac Center for Public Policy, and Capital Research Center–reported similar findings.

In its joint amicus brief to the U.S. Supreme Court, the Evergreen Freedom Foundation argued, “even if every non-member declined to opt-in to the use of dues for political purposes, the impact to the WEA would amount to less than ¼ of 1% of the WEA’s total expenditures … a minuscule drop in funds available for political purposes.”

The legal issues involved in the Davenport case allow NRTW attorneys to challenge a doctrine that flowed from a U.S. Supreme Court ruling handed down 45 years ago in Machinists v. Street–a doctrine that union bosses ever since have used to hamstring workers who do not want to pay for a union’s political activities.

Mischievous Consequences

The 1961 Street case was one of the earliest Supreme Court cases dealing with forced unionism. Street involved both dues-paying union members and non-members threatened with discharge for not joining the union.

Although the Court found the workers had a right to withhold forced dues for politics, it said “dissent is not to be presumed.”

For decades, union bosses have used this phrase to justify setting up procedures that make non-members submit objections during narrow “window periods” every year, just to get forced dues refunds to which the workers are already entitled by law.

Burden on Employees

If the U.S. Supreme Court agrees that an employee registers sufficient dissent through the act of leaving a union or not joining it in the first place, then every forced-dues-paying non-union member in America will automatically be entitled to a reduction in his or her forced dues, to exclude all union expenditures other than those spent on bargaining with employers.

The expenditures would include all costs attributable to politics, lobbying, and union public relations activity. Non-union employees could expect to receive dues refunds of between $200 and $300 every year.

The Court is expected to rule by June.

Justin A. Hakes ([email protected]) is director of legal information at the National Right to Work Legal Defense Foundation in Springfield, Virginia.

For more information …

A National Right to Work Foundation summary of the issues involved in Davenport v. WEA is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to and search for document #20306.