Thursday, June 14, 2007

In-Depth Analysis of Supreme Court Davenport Decision on Union Fees

4united_states_supreme_court_112904 Thanks to Jeff for getting a summary of Davenport v. Washington Ed. Assn., Nos. 05-1589 and 05-1657 (U.S. June 14, 2007) (the Breyer concurrence is here) up so quickly.  The case holds that the State of Washington was not prohibited under the First Amendment from keeping public-sector labor unions from using the agency-shop fees of a nonmember for election-related purposes unless the nonmember affirmatively consents (our previous posts about the case are here, here, here, and here).

Now I have had a chance to read the decision (and who in their right mind could pass on one of the few public labor law cases heard by the Court!), here are my thoughts:

1.   Surprise. I thought this case would be remanded back to the lower courts without a decision as a result of the amendment to the Washington law in question.  That amendment seems to moot the constitutional issue about whether Washington State could go beyond what Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236 (1977) requires (giving nonmembers the chance to opt-out) and make union nonmembers opt-in before using their union fees for ideological purposes.  The amendment clearly exempts union from having to follow the opt-in procedure, so what gives?  It's all about money.  Justice Scalia, writing for the court, explains in footnote 1: "As respondent concedes, . . . these cases are not moot. Because petitioners sought money damages for respondent’s alleged violation of the prior version of §760, it still matters whether the Supreme Court of Washington was correct to hold that that version was inconsistent with the First Amendment."  But won't this opinion also act to put other states on notice about what they can and cannot do as far as public-sector union agency fees?

2.  No surprise.  On the merits, I thought this case would come out against the union.  The only surprise here is that I predicted 7-2 and it was 9-0 (albeit with three judges concurring).  But to be fair to Rick Hasen who predicted a 9-0 outcome (and to Eugene Volokhn, who wrote an amici brief for the winning side), the concurrence does not represent a substantive disagreement (see point #5 below).

3.  Whatever the merits in deciding this case, the important point is that States can beyond what is constitutionally required at the minimum and provide more restrictions when the constitution only sets the floor and not the ceiling:

The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive. Respondent concedes that Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining . . . . Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely . . . . For the reasons that follow, we conclude that the far less restrictive limitation the voters of Washington placed on respondent’s authorization to exact money from government employees is of no greater constitutional concern . . . .

The mere fact that Washington required more than the Hudson minimum does not trigger First Amendment scrutiny. The constitutional floor for unions’ collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions.

This is an important point not only for this case, but also for other cases which rest on the distinction between what is required and what is permitted by the Constitution (see, for instance, the Establishment Clause case of Locke v. Davey).

4.  This case only applies to public-sector unions not under the jurisdiction of the National Labor Relations Act (NLRA).  Justice Scalia in his majority opinion was clear that this decision has no impact on agency fee arrangements in the private-sector:

We emphasize an important limitation upon our holding: we uphold §760 only as applied to public-sector unions such as respondent. Section 760 applies on its face to both public- and private-sector unions in Washington. Since private-sector unions collect agency fees through contractually required action taken by private employers rather than by government agencies, Washington’s regulation of those private arrangements presents a somewhat different constitutional question. We need not answer that question today, however, because at no stage of this litigation has respondent made an overbreadth challenge.

5.  Justice Breyer's concurrence, joined by the Chief Justice and Justice Alito, was not about disagreeing with the outcome of the case, but a disagreement over Supreme Court procedure. Justice Breyer did not believe that certain arguments (involving election law and content-based discrimination under the First Amendment) should be addressed because they were not raised below.  The surprise here is that Justices Scalia and Thomas, usually sticklers for this type of procedure, did not follow this usually sound piece of appellate practice.

6.  The Court found that the Supreme Court of Washington improperly relied on the expressive association case of Boy Scouts of America v. Dale, 530 U. S. 640 (2000) because "Section 760 does not compel respondent’s acceptance of unwanted members or otherwise make union membership less attractive."

All in all, I guess an important outcome for those nonmembers who wanted their money back from the union, but the greater import of this case will depend on how many states in the future decide to use the affirmative opt-in procedure that Washington initially adopted and subsequently amended out its statute for unions.

PS

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Comments

Good (and fast!) analysis. I would watch how many other states try to pass similar legislation, prompted not so much by individual union members who care passionately about the difference between opt-in and opt-out procedures, but rather by anti-union interests, trying to limit the power of unions by making it more burdensome to use dues money for political expenditures (which are supposedly not related to collective bargaining).

Personally, I remain puzzled at how courts can hold that the money public sector unions spend on politics isn't "related to collective bargaining," given that they represent employees of local governments, have politicians for bosses, and are especially subject to changing political fortunes and winds -- as the history of the Washington law demonstrates. But so it goes.

Posted by: Joseph Slater | Jun 14, 2007 10:05:50 AM

Joe is of course correct in pointing out the tenuous line between politics and collective bargaining in the public sector. That is problematic only in some middle ground. At the poles (direct bargaining expenses on one side and direct contributions to candidates on the other) the distinction is clearer.

The reason for asserting the distinction is to avoid the constitutional issue that would arise if a state law empowered unions to compel contributions to a party or candidate. To preserve some portion of compulsory dues requirements, the courts distinguished between "non-political" bargaining and politics. I've never thought mandatory dues were justified on that basis because it assumes the answer to the critical question of whether public sector bargaining actually confers a benefit on all employees. Some employees obviously don't believe that it does, at least in net result. If so, compelled contributions should be constitutionally suspect regardless of the use to which they are put. Nevertheless, if one wants to require all employees to share the costs, then separating CB expenses from "political" expenses is a constitutional necessity.

Posted by: Dennis Nolan | Jun 14, 2007 11:26:55 AM

Dennis clearly articulates the rationale for the law as it stands, and that rationale has been accepted by every court that counts. I won't argue that this case was decided incorrectly. But, in the "entirely academic" spirit of things, three caveats.

First, as to whether collective bargaining confers a benefit (which supports the "free rider" argument for allowing union security clauses): (i) labor laws typically state that bargaining does, indeed, confer a benefit (a legislative finding) and (ii) it's not disputed that unionized employees typically have greater compensation and greater protections from discipline and discharge than do their non-unionized equivalents. I realize the latter claim is trickier in the public sector, where some folks can't bargain about compensation, but as a generalization, I'll stick with it.

Yes, some individual employees may feel otherwise. Of course, if they are in a bargaining unit, that's because a majority of their co-workers disagree with them. And if those individuals feel that their union is doing the wrong thing, they can work democratically within the union to change policy or even get another job.

In practice, in the absence of union security clauses, it is routine for members of bargaining units who pay reduced dues, or, in right-to-work jursidcations, no dues, to demand that the union represent them in, say, discharge arbitrations. And of course, unions are required to do so under DFR law.

None of this eliminates the Constitutional concerns of plaintiffs in these cases. But I find the "free rider" argument to be pretty strong.

Second, I'm not sure if it's always clear that direct contributions to certain candidates isn't "related to collective bargaining." From governors to school board members, many political candidates are the direct employers of union bargaining units. We can't pretend that there isn't at least sometimes a huge difference in how two different candidates would approach bargaining and compensation issues.

Finally, looking toward future legislative battles on this issue, I still maintain that the forces behind the Washington law -- which again, I'll concede was Constitutional -- are not individual workers who care strongly about whether the $35 they have a right to withhold from their unions is withheld pursuant to an opt-in or opt-out procedure. Rather, it is institutionalized anti-union forces, by which I mean private sector business and related interests, pushing these things. You can root for 'em or agin 'em, but let's not pretend this is some grassroots struggle for more rights for workers.

Posted by: Joseph Slater | Jun 17, 2007 9:57:36 AM

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