Labor & Employment Law

State may require union to get nonmember?s approval as to use of agency-shop fee

By Harvey Randall, Esq.

State may require union to get nonmember?s approval as to use of agency-shop fee
Davenport, et al., v Washington Education Association, certiorari to the US Supreme Court, No. 05-1589

A State of Washington statute prohibits labor unions representing state workers from using the agency shop fees of a nonmember for election-related purposes unless the nonmember affirmatively consents to such use of his or her agency-shop fee.

Many jurisdictions, including New York State, have adopted a similar requirement¹ or have authorize public-sector unions to negotiate agency-shop agreements that entitle a union to levy fees on employees not union members but whom the union represents in collective bargaining.²

The Supreme Court of Washington held that the State?s §760 affirmative-authorization requirement violated the First Amendment of the Federal Constitution [State ex rel. Washington State Public Disclosure Commission v. Washington Ed. Assn., 156 Wash.^2d 543, 130 P^3d 352].³ The State appealed and won a reversal by the U.S. Supreme Court.

The U.S. Supreme Court decided that a State law requirement that unions representing its public-sector employees must obtain affirmative authorization from a nonmember before spending all or part of that nonmember?s agency fees for election-related purposes does not violate the First Amendment.

The U.S. Supreme Court characterized the question to be resolved as ?whether §760 is a constitutional condition on the authorization that public-sector unions enjoy to charge government employees agency fees?? The U.S. Supreme Court said:

We hold that it does not violate the First Amendment for a State to require that its public-sector unions receive affirmative authorization from a nonmember before spending that nonmember?s agency fees for election-related purposes.

It then vacated the judgment of the Supreme Court of Washington and remanded the cases ?for further proceedings not inconsistent with this opinion.

1 Civil Service Law Sections 208.3(a) [state employees] and 208.3(b) [other public employees]. n.b. Section 208.3 is subject to a ?repealer effective October 1, 2009.? New York?s law requires the refund of an employee?s pro rata share of the union?s political or ideological use of agency-shop fee payments only incidentally related to ?the terms and conditions of employment.?

2 In Abood v. Detroit Bd. of Ed., 431 U. S. 209, the U.S. Supreme court held that ?public-sector unions are constitutionally prohibited from using the fees of objecting nonmembers for ideological purposes that are not germane to the union?s collective-bargaining duties.?

3 The State of Washington?s Revised Code §42.17.760 at the time the Washington Supreme Court issued its ruling provided: ?A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the
individual.?

Full post as published by New York Public Personnel Law on March 26, 2008 (boomark / email).