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EMPLOYMENT LAW — 11/21/06

U.S. Supreme Court urged to uphold limitation on the use of union fees for political purposes

Early next year, the U.S. Supreme Court will consider whether a Washington law that requires unions to obtain nonmember's consent before using union fees for political purposes violates the First Amendment. The National Federation of Independent Business Legal Foundation filed an amicus brief with the court on Monday, November 13, 2006, urging that this law should be upheld.

The consolidated cases being considered by the Supreme Court stem from a Washington law enacted in 1992 that requires unions to obtain each employee's authorization in order to use their union fees for political purposes. Many states, including Washington, allow unions to negotiate union security in their collective bargaining agreements. This means that employees at businesses that participate in collective bargaining agreements are required to either join the union or pay an "agency shop fee" to the union for the benefit they receive as a result of the negotiations for the collective bargaining agreements.

In order to protect the rights of non-union employees, the voters of Washington enacted the Fair Campaigns Practices Act, which requires unions to secure consent from non-union employees before using their agency shop fees for political purposes. In essence, Washington has adopted an opt-in mechanism by which agency fee employees must affirmatively consent to the union's use of their fees for political purposes.

"NFIB has long supported limitations that protect non-union employees from unwittingly or unwillingly financially supporting political causes with which they do not agree," said Elizabeth Gaudio, senior executive counsel for NFIB's Legal Foundation. "If the court sides with the unions and finds this law to be unconstitutional, its ruling could open the door to labor plans to roll back established limits on the use of union dues."

The U.S. Supreme Court has never addressed the constitutionality of such an opt-in procedure, although it has approved an opt-out procedure as consistent with the First Amendment. NFIB argues that a decision in the case will resolve a conflict among the lower courts regarding the level of protection that can be provided to non-union members. In its brief, NFIB points to a long judicial history that prohibits organizations from forcing nonmembers to support a union's political activities.

The consolidated cases being considered are Davenport v. Washington Education Association ("WEA") (No. 05-1589) and Washington v. WEA (No. 05-1657). The Supreme Court is scheduled to hear oral arguments on January 10.

Source: The NFIB Legal Foundation

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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