The matter of employees in a union shop who don’t want to join the union, or contribute to its political causes, has been a pointed lever in the politics of workplace. In Washington State Public Disclosure Commission v. Washington Education Association, the Washington Supreme Court this morning drew the sometimes blurry dividing lines a little more brightly.
The case grew out of complaints by the Evergreen Freedom Foundation, a business-aligned think tank which with other conservative groups has for some time sought to circumscribe union activity. (The named complainants, of course, are nonunion workers.) The specific target in this case was the Washington Education Association, though the impact ranges much farther.
The Washington Supreme Court lays out the state of the law, and the union funding procedures, with clarity:
WEA is the exclusive bargaining agent for approximately 70,000
Washington State educational employees. Membership in WEA is voluntary.
However, both members and nonmembers must contribute to WEA for the costs
related to collective bargaining.1 Per statute, members pay dues to the
union; nonmembers pay agency shop fees, which are equivalent to member
dues. RCW 41.59.1002; RCW 41.56.122.A portion of members’ dues goes to support political and ideological
causes, which are unrelated to the union’s collective bargaining activities
on behalf of all employees. These expenses are typically called
nonchargeable expenses. Nonmembers who do not wish to support these
nonchargeable activities may obtain a rebate of that portion of their fees
that was used for nonchargeable activities. The process by which the union
rebates this amount to dissenting nonmembers was established by the United
States Supreme Court in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106
S. Ct. 1066, 89 L. Ed. 2d 232 (1986).Twice each year, WEA sends a “Hudson packet” to each nonmember. The Hudson
packet includes a letter notifying the employee of his or her right to
object to paying fees for nonchargeable expenditures. The packet gives the
nonmember three choices: (1) pay agency shop fees equivalent to 100 percent
of dues; (2) object to paying 100 percent and receive a rebate of
nonchargeable expenditures, as calculated by WEA; or (3) object to paying
100 percent and challenge WEA’s calculations of nonchargeable expenditures.
The packet also provides financial information about WEA and its
activities. During the years 1996 to 2000, WEA had approximately 3,500
nonmembers per year, which is approximately 5 percent of the total number
of persons represented by WEA.When a nonmember challenges WEA’s calculation of nonchargeable
expenditures, an arbitrator determines the amount of the nonmember’s fees
that should be rebated. Pending the outcome of the arbitration, WEA
escrows any fees that are reasonably in dispute. The WEA rebates to the
employee the amount determined by the arbitrator, and transfers the
remainder to the WEA general account. During the years 1996 to 2000, the
rebates ranged from $44 to $76. Clerk’s Papers (CP) at 839. Nonmembers
who did not object and did not request rebates did not receive rebates.
Their fees were transferred from escrow to WEA’s general account.
Political expenditures were made from this account pursuant to a 1996
agreement with the PDC. At issue are the fees paid by the nonobjecting
nonmembers.
So: Are the interests of non-union members, who may- for example – want to support political candidates different from those backed by the union – being reasonably protected?
The Supreme Court said, generally, that they were – an in the process threw out as unconstitutional a state law that requires that funds from non-members be specifically approved by those non-members for political and related uses (and “opt-in” procedure), rather than excluding the funds through an “opt-out.” About the law the Court remarked: “Accepting the argument that protection of dissenters’ rights is a compelling state interest, the opt-out procedure is a less restrictive constitutionally permissible alternative. RCW 42.17.760’s opt-in procedure is not narrowly tailored to advance the State’s interest in protecting dissenters’ rights, and thus, the statute is unconstitutional.”
It noted that the WEA has been in violation of the rules in the past (and some of that underlay the original Evergreen Freedom challenge). “Freedom of speech includes the freedom not to speak or to have one’s money used to advocate ideas one opposes,” the court noted.
At the same time, it said, “a presumption of dissent” does damage to both members and non-members of the union, and as matters stand, “The union’s Hudson procedures protect dissenters’ rights not to participate in the union’s political speech.”
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