Reclaiming the First Amendment Through Union Dues Restrictions?

Source: Harry G. Hutchison, University of Pennsylvania Journal of Business Law, Spring 2008
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… In view of the fact that labor unions and labor advocates increasingly see unions and the labor movement as a fighting force for class-based justice and societal transformation, it is possible that virtually all union expenditures (including collective-bargaining expenses) have freedom of expression implications that are adverse to the interests of dissenters. … In Beck, the Supreme Court had to decide whether an exclusive bargaining agreement within the meaning of section 8(a)(3) of the NLRA “permits a union, over the objections of dues-paying nonmember employees, to expend funds so collected on activities unrelated to collective bargaining, contract administration, or grievance adjustment, and, if so, whether such expenditures violate the union’s duty of fair representation or the objecting employees’ First Amendment rights.” … First, labor unions are made up of diverse workers with disparate interests and preferences, and therefore, consistent with the parameters of postmodern discourse and Madisonian assumptions, it is impossible to believe that workers necessarily share a common interest. … Since self-interest implicates both economic and ideological goals, engaging in an inadequate search enables courts to overlook self-interested benefits (private externalities) that disproportionately accrue to union hierarchs and union outsiders that may have captured the union, its policymaking and its revenues. … Accepting the allegation that it is well settled that a union, which is obliged to act on behalf of all employees in the bargaining unit, may charge nonunion employees to bear their “fair share” of the costs of representation and basking in the assertion that Washington has a long and proud history of being a pioneer in the protection of employee rights, the Washington State Supreme Court approved agency shop provisions that require the deduction from nonmembers’ salary of fees equivalent to union dues. … Though grounds for skepticism may engulf the capacity of the Davenport case to empower dues objectors to reclaim First Amendment values, grounds for optimism can be found in the Court resolution of two issues: (A) that the state of Washington could constitutionally eliminate agency fees entirely in order to protect workers’ rights to their own money and (B) that the citizens of Washington are not bound by the allegation that dissent within labor unions cannot be presumed. … Taken together, this analysis clarified by John Nowak and Ronald Rotunda’s observations, implicates the following question: May a union, consistent with workers’ rights of freedom of association and speech, use union dues to advance causes or interests not favored by all of the dues payers? … An inspection of the evidence provided by Professor Troy, a careful survey of labor union websites, a detailed inspection of available union accounts, and an examination of the pronouncements of John Sweeney, Dennis Rivera and other labor leaders, reveals that the union movement has transformed itself into an anti-market fighting force for social justice. … The Davenport Court complements Hanson’s language by subordinating dues objections to the following proposition: Public-sector unions are only prohibited from using the fees of objecting nonmembers for ideological purposes that are not germane to the union’s collective-bargaining duties.

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