State Law Limiting “Hudson” Expenditures to Opt-Ins Upheld by U.S. Supreme Court

June 13, 2007 by Beeson Tayer & Bodine

In a unanimous decision, the U.S. Supreme Court has upheld a Washington State statute that forbids public-sector unions from using agency fees collected from non-members for political and other noncollective- bargaining purposes, except with respect to those agency-fee payors who have affirmatively given the union permission to do so. Davenport v. Washington Education Association, 127 S.Ct. 2372.

In past decisions applying to both public and privatesector unions, the Supreme Court has ruled that nonmembers who do not wish their agency fees to be used for non-collectivebargaining purposes must affirmatively object to such expenditures. The Washington State statute involved in this case, however, reversed that burden, removing the burden on the employee to object and imposing the burden on the union to obtain the employee’s consent.

The Washington Education Association challenged the constitutionality of the statute, arguing that it impermissibly interferes with the balance the Supreme Court struck in Hudson between the free-speech rights unions and the free-speech rights of non-members. The Washington State supreme court agreed with the union, but on appeal the U.S. Supreme Court reversed. The Court noted that the publicsector union here had a right to collect agency fees solely by virtue of state law, and that inherent in the state’s right to grant public-sector unions the right to collect agency fees is the right to limit a union’s ability to collect those fees. Because the state properly limited the union’s collection of agency fees, the Court concluded, the union had no basis to claim that its free speech rights were infringed by the statute.

The Court emphasized that its holding was limited to the statute’s application to public-sector unions, who collect agency fees by virtue of state law, as opposed to private-sector unions who collect agency fees by virtue of contract. Unfortunately, however, there is little in the Court’s opinion to give reason to believe that the result will be different if and when the Court addresses the same issue as applied to private-sector unions..

With this victory in hand, the Right to Work squad can be expected to push to extend the principle of the Washington State statute to other states, and unions, both public and private sector, should be braced to fight back any such attempt in California.

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