Davenport v. Washington Education Association

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2007 United States Supreme Court case

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

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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).

the Court held that the agency shop provisions of the Railway Labor Act were constitutional ,

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.

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).

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.

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.

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.

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. This included getting each person's approval even for soft money expenditures, an issue not previously covered in Supreme Court rulings.

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