Over at the progressive web site TomPaine.com, labor law attorney Dmitri Iglitzin discusses the ramifications of Davenport v. Washington Education Association, the case recently argued before the U.S. Supreme Court concerning the use of agency fees for political purposes.
Iglitzin’s stance on the issue is not in doubt (the article is headlined “Muzzling Unions”), but to his credit, he also is not in doubt about what the law says:
“The problem with [the union's] argument, which was not lost on
the U.S. Supreme Court, is that the union has no underlying constitutional right
to compel any employee to contribute any money to it. In fact, in many states,
unions are statutorily forbidden to compel employees to pay dues of any sort -
and it is clear that such prohibitions are constitutionally valid. Since
Washington could lawfully forbid the WEA from involuntarily extracting any dues
money at all from the workers it represents, why can’t the state take the lesser
step of forbidding the WEA from extracting such money for certain purposes
without ‘affirmative authorization’ by the worker?
“The danger is that the court may not only uphold the law, but also
further limit the ability of labor unions to raise money for political activity.
Some hint was given by Justice Scalia, early in the argument. The First
Amendment, he opined, far from prohibiting a requirement that ‘affirmative
authorization’ be obtained from employees before unions may use their money for
political purposes, in fact actually requires such an ‘opt in’ scheme. ‘If this
money is the non-union member’s money and an opt-in scheme is not much of a
burden on the unions,’ he asked, ‘why should the First Amendment permit anything
other than an opt-in scheme?’
“Were that to become the Supreme Court’s ruling, it would drastically alter
the status quo, which currently requires unions only to give employees notice of
their right to object to having their dues used for other than contract
negotiation and administration. In the worst case, unions could be severely
limited in their ability to raise money from non-members for any purposes at all
beyond the so-called ‘core’ union tasks of negotiating and administering
collective bargaining agreements.”
Since the Beck, Hudson, Abood, and numerous court decisions since are based on that very proposition – that agency fees can only be collected for collective bargaining and associated purposes – Iglitzin’s “worst case” has been the case for decades. After Davenport is decided, unions will finally have to come to grips with it.
