- The Washington Times - Friday, June 15, 2007

The Supreme Court yesterday ruled unanimously that states may require public-sector labor unions to get permission from workers before using their union fees for political activities.

The 9-0 decision applies to government workers who have chosen not to be members of the union. About 21 states, including Washington, allow unions and government employers to enter into “agency-shop” agreements under which the union can collect fees from the nonmember workers whom it represents in labor negotiations.

At the time the case was brought, however, Washington also required the union to get explicit prior consent from those nonmembers before using their fees for lobbying or other political purposes. The Washington Supreme Court ruled that this requirement violated the First Amendment and infringed on the union’s “expressive associational rights,” but the Supreme Court disagreed.

“The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive,” Justice Antonin Scalia wrote for the court. Because it even would be constitutional for Washington state “to eliminate agency fees entirely,” this “far less-restrictive limitation” is acceptable, he wrote.

At issue was whether it is adequate for unions to simply give nonmembers the chance to opt out of their fees being used for political purposes — as the Washington Education Association had done in this case. Under this standard, the burden is on the nonmember to object, and if no objection is heard, the union can assume consent.

The high court yesterday reaffirmed that standard, saying that it’s permissible for a state to put the onus on the nonmember. But the court also said that standard is a “floor,” not a “ceiling” — meaning that states may impose further restrictions on unions, as Washington did.

The man who brought the case said the Supreme Court unanimously rejected the idea that unions have a constitutional right to spend nonmember dues on politics.

“We’re very pleased with the decision,” said Gary Davenport, a former high-school teacher who sued on behalf of about 4,000 teachers and school employees who chose not to be WEA members. “It’s a good thing for First Amendment rights” that the justices rejected the Washington panel’s belief that unions can essentially “trample on an individual’s rights.”

But he said more changes are needed to ensure that teachers aren’t forced to pay any dues to a union they don’t wish to be a part of.

“Right now who has the power is the WEA, the NEA and the organized traditional unions,” he said.

National Education Association general counsel Bob Chanin downplayed the ruling as having “no practical impact.”

He said Washington was the only state to have such an “affirmative consent” requirement — on the books since 1992. But he said that no state has copied it since and that Washington itself had recently changed its law to water down and essentially eliminate the “affirmative consent” requirement.

He also claimed victory in the justices’ refusal to push the envelope further and force all states to follow Washington in requiring unions to get affirmative consent from nonmembers.

“The court refused to do that and reaffirmed the constitutional standard that’s in place,” he said, referring to the opt-out standard. “On both of the big issues, they lose.”

Officials at the National Right to Work Foundation — which helped Mr. Davenport bring the suit — also downplayed the ruling, saying that the Supreme Court passed up an opportunity to change the union rules.

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