Davenport v. Washington Education Association

''Davenport v. Washington Education Association'', 551 U.S. 177 (2007), is a ruling by the Supreme Court of the United States in which the Court held that it does not violate the First Amendment for a state to require its public-sector unions to receive affirmative authorization from a non-member before spending that nonmember's agency fees for election-related purposes.

Background of the case

The National Labor Relations Act, as amended, allows unions to require that non-union members pay agency fees to cover collective bargaining costs and prevent free rider problems. The Supreme Court has ruled in a number of cases that requiring non-members to pay agency fees is both constitutional and legal, provided a number of conditions are met. In '' Railway Employes' Dept. v. Hanson,'' 351 U.S. 225 (1956).Kearney, Richard C. and Carnevale, David G. ''Labor Relations in the Public Sector.'' 3rd ed. New York: CRC Press, 2001. the Court held that the agency shop provisions of the Railway Labor Act were constitutional,Kohler, Thomas C. "Setting the Conditions for Self-Rule: Unions, Associations, Our First Amendment Discourse and the Problem of DeBartolo." ''Wisconsin Law Review.'' 1990:149 (January 1990/February 1990). but withheld judgment as to "the validity or enforceability of a union or closed shop agreement if other conditions of union membership are imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First or the Fifth Amendment." Five years later, in '' Machinists v. Street'', 367 U.S. 740 (1961), the Court held that the Railway Labor Act "denies the authority to a union, over the employee's objection, to spend his money for political causes which he opposes."

The high court also confronted the issue of remedy (how can non-members challenge the calculation of agency fees) in ''Machinists v. Street,'' and outlined several options which unions and employers might adopt (as well as rejecting remedies which the district court in the case had chosen). Making its first private sector ruling in '' NLRB v. General Motors Corp.,'' 373 U.S. 734 (1963), the Court held that agency fees equal to dues are not prohibited by the National Labor Relations Act.Canfield, Jeff. "Note: What A Sham(e): The Broken ''Becks'' Rights System in the Real World Workplace." ''Wayne Law Review.'' 47:1049 (Fall 2001). Nonetheless, in '' Retail Clerks v. Schermerhorn,'' 373 U.S. 746 (1963), the Court questioned whether an agency fee set at a level equal to member dues was unfair because it set collective bargaining fees higher for non-members than for members. After reargument, however, the Court in '' Retail Clerks v. Schermerhorn,'' 375 U.S. 96 (1963), did not reach the issue again and instead decided the case on narrow procedural grounds (concluding that Florida's right-to-work law outlawed the union shop provision at issue).Twomey, David. ''Labor and Employment Law: Text & Cases.'' 14th ed. Florence, Ky.: Cengage Learning, 2009. The Court further elaborated on the issue of remedies in '' Railway Clerks v. Allen,'' 373 U.S. 113 (1963), allowing agency fee payers to opt out of all political expenditures rather than enunciate specific examples, but refusing to allow non-members to act as a class.

The Supreme Court extended its constitutional and equity analysis to public employees in ''Abood v. Detroit Board of Education'', 431 U.S. 209 (1977) (since overturned in 2018, see '' Janus v. AFSCME''), holding that, where public employee collective bargaining exists and agency fee clauses are clearly authorized by law, public employee agency fee mechanisms also are constitutional.Carelli, Richard. "Ruling Eases Non-Union Dues Payments." ''Associated Press.'' June 29, 1988. In '' Ellis v. Railway Clerks,'' 466 U.S. 435 (1984), the Supreme Court concluded that the agency fee may only cover those activities directly related to the union's role as a collective bargaining representative. These included national conventions (where dues levels were set and union programs debated and established), social activities (which enhanced union solidarity, especially during negotiations), grievance handling, contract negotiation costs, and union communications, but excluded union organizing activities.Perl, Peter. "The Case of the Reluctant Union Contributor." ''Washington Post.'' November 2, 1984.Belman, Dale; Gunderson, Morley; and Hyatt, Douglas. ''Public Sector Employment in a Time of Transition.'' Ithaca, N.Y.: Cornell University Press, 1996. The Court in ''Ellis'' also wrestled with the issue of rebates, and concluded that a union could not simply rebate agency fees to workers for that would essentially constitute a forced, interest-free loan from the worker to the union.

In 1985, the Court held in '' Pattern Makers v. NLRB'', 473 U.S. 95, that a union member may resign at any time without notice. ''Pattern Makers'' further undermined the union shop by giving workers the right to resign from the union at any time and incur no penalty (such as termination). The Court also crafted additional rules regarding agency fees in '' Teachers v. Hudson,'' 475 U.S. 292 (1986). In ''Teachers,'' the union had failed to minimize the risk that agency fees might be used for impermissible purposes and had failed to provide agency fee payers with adequate information about how the agency fee was calculated.''Teachers v. Hudson,'' 475 U.S. 292, 304-309. Now the Supreme Court imposed a third requirement, that agency fee payers must be offered a timely, fair, and objective mechanism for challenging the computation of agency fees. The Court did uphold, however, the use of interest-bearing escrow accounts for holding disputed dues.

In 1992, voters in the state of Washington approved a ballot initiative that requires unions to receive permission from non-union members to use their fees to support political campaigns.Kochkodin, Michael C. "Comment: A Good Politician Is One That Stays Bought: An Examination of Paycheck Protection Acts & Their Impact on Union Political Campaign Spending." ''University of Pennsylvania Journal of Labor and Employment Law.'' 2:807 (Spring 2000). This included getting each person's approval even for soft money expenditures, an issue not previously covered in Supreme Court rulings. Gary Davenport, a non-union member and state worker, and other state employees sued, contending that the union failed to secure their approval before spending their agency fees on political efforts.

A lawsuit was filed against the Washington Education Association by Washington Attorney General Christine Gregoire. The Thurston County, Washington Superior Court ruled that the union had to pay $590,375 in fines for intentionally violating the Washington statute. On appeal, the Washington Court of Appeals ruled 2-1 that section 760 of the Washington Fair Campaign Practices Act had violated the First Amendment of the Constitution by placing the speech of union members as more valuable than teachers. However, the case was then appealed to the Washington Supreme Court, which ruled in favor of the union stating that the law was unconstitutional because it placed too large of an administrative burden on the union. Therefore, non-union members could not prevent the union from using their money for political campaign purposes.

In 2006, the United States Supreme Court agreed to hear the case. Oral argument was held on January 10, 2007 and the Court reached a decision on June 14, 2007.

The court's decision

Justice Antonin Scalia wrote the decision for a unanimous Court, and overturned the previous Washington Supreme Court's ruling. Justice Scalia outlined two reasons why the Court believed that the Washington statute was constitutional:

Breyer's concurrence

In a concurring opinion, Justice Stephen Breyer agreed with all aspects of Justice Scalia's opinion except for the respondent's arguments that had not been raised in lower courts. This criticism is one of procedure and not content. Justice Breyer believed that the lower courts should have addressed these arguments before they were heard by the Supreme Court.

Impact

The ''Davenport'' ruling was moot the moment it was issued, for the Washington state legislature had, before the ruling was handed down, changed the law to make it far easier for unions to comply with its provisions.Himebaugh, Daniel A. "Consider the Source: A Note on Public-Sector Union Expenditure Restrictions Upheld in ''Davenport v. Washington Education Association''." ''Journal of the National Association of Administrative Law Judiciary.'' 28:533 (Fall 2008).

Nonetheless, legal scholars have been highly critical of the Supreme Court's ruling in ''Davenport.'' As one legal scholar (who is highly critical of the agency fee), has said, "Correctly understood, this decision promises little and delivers even less because it fails to deal decisively and comprehensively with the issues that both earlier private sector and public sector union dues disputes illuminated but failed to settle."Hutchison, Harry G. "Reclaiming the Union Movement Through Union Dues? A Postmodern Perspective in the Mirror of Public Choice Theory." ''University of Michigan Journal of Law Reform.'' 33:447 (2000). (Footnotes omitted) Other legal scholars have criticized Justice Scalia's judicial reasoning in ''Davenport,'' concluding that he should have ruled solely on First Amendment grounds and overturned the agency fee law entirely.Jaffe, Erik S. "Campaign Finance and Free Speech: When Easy Cases Make Bad Law: ''Davenport v. Washington Education Association'' and ''Washington v. Washington''." ''Cato Supreme Court Review.'' 2006-07:115 (2006/2007).

See also

*List of United States Supreme Court cases by the Roberts Court
*List of United States Supreme Court cases involving the First Amendment

References

External links

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{{DEFAULTSORT:Davenport V. Washington Education Association
United States Supreme Court cases
United States Supreme Court cases of the Roberts Court
United States Free Speech Clause case law
United States labor case law
Legal history of Washington (state)
2007 in United States case law
2007 in Washington (state)
National Education Association