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Supreme Court Says States May Require Affirmative Employee Authorization for Use of Public Sector Employees' Fees for Certain Union Uses

    Client Alerts
  • June 29, 2007

In a recent series of cases, the U.S. Supreme Court has upheld limitations of labor unions’ use of fees charged to non-members for ideological purposes not related to collective bargaining.  Most of this litigation arose over attempts to limit public sector union political activity by allowing non-members to opt out of fees charged for such purposes.  Washington state went further by approving a ballot initiative that requires non-members to affirmatively approve use of their fees for such purposes.  A teachers’ union challenged the new law as an unconstitutional abridgement of its First Amendment rights.


Earlier this month, in Davenport v. Washington Education Association, the U.S. Supreme Court upheld the Washington law as constitutional.  In a unanimous opinion, the Court held that when a private entity such as a union is given the ability in essence to tax non-members, placement of reasonable restrictions on this power is not a violation of its constitutional rights.  Unions have no constitutional right to non-members’ fees, and the fact that the fees may have already been transferred to the union’s possession does not provide it with any additional claim to use of those funds.  These restrictions do not result in government intrusion on the unions’ free speech rights.  This case will likely prompt similar laws in other states seeking to further restrict union access to funds for political purposes.