The Center’s brief contained two main arguments. The first was that the Washington Supreme Court misapplied the “dissent is not to be presumed” phrase and that the U.S. Supreme Court should hold that under the First Amendment, the absolute maximum fee that a state can compel a nonmember to pay to a union is the nonmember’s proportionate share of the union’s collective bargaining costs. The second argument was that even if the U.S. Supreme Court did not address the broad question of the limit of permissible fees, the court should hold § 42.17.760 was a permissible exercise of the state’s discretion.
The dispute regarding what fees a nonmember can be compelled to give to a union is a long-running one and is an outgrowth of compulsory unionism. The first case to address this issue was decided in 1956. At the time, it was still an open question whether “union shop” agreements, which require an employee to formally join a union within a certain period of time after being hired, were permissible. This was still undecided in 1961, when the U.S. Supreme Court took up the issue of union members who did not want to finance union political stands with which they disagreed. The Supreme Court needed a rough method to segregate those union members who supported the union’s political aims from those union members who did not and had joined the union as a requirement of the job. The court held that union members could not be forced to support political causes that they disagreed with, but that “dissent is not to be presumed.” In other words, union members could prevent their dues from being spent on political causes they disagreed with, but they had to make their feelings known.
The phrase was repeated in later Supreme Court cases discussing the propriety of a union charging fees to employees who were covered by a collective bargaining agreement but who did not want to join the union. By this time, the Supreme Court had clarified that all that was required for “membership” was that a person covered by a collective bargaining agreement pay whatever compulsory fees a state allows a union to charge (if any).[†] Thus, there is no longer a need for the rough sorting that was done by the old rule, where “members” who joined only in order to be employed had to dissent. Now, the very act of the nonmember refusing to join the union should be sufficient to indicate that the nonmember does not want to support the union politically.
Failure to limit the union to collecting agency fees related to collective bargaining would imperil the nonmember’s First Amendment right to silence. Making a nonmember affirmatively voice dissent causes that employee to annually draw attention to his or her politics. The current interpretation of the presumption means that a nonunion employee who does not want to contribute to political causes with which he or she disagrees, is forced to take a public stand, instead of having the opportunity to just ignore a political solicitation as most other individuals can do. A Supreme Court ruling that limited fees a union could charge to those necessary to cover collective bargaining costs would eliminate this problem.
Even if the Supreme Court were not to adopt this standard, it should still overturn the Washington Supreme Court’s decision. The Washington court, relying on the United States Supreme Court’s statement that “dissent is not to be presumed,” held that it was unconstitutional for Washington to require a union to get affirmative authorization before a nonmember’s political fees could be spent. But this holding ignores the fact that a state need not allow a public employee union to become a collective bargaining representative or allow a collective bargaining representative to charge an agency fee. A state that has decided to act on a discretionary power should not be compelled to exercise that power to the full extent constitutionally possible. Here, the state of Washington put a condition on the union’s power to collect agency fees, a condition that was meant to protect the nonmembers’ First Amendment rights. This was perfectly proper, and the Supreme Court should therefore overrule the lower court’s ruling.
[†] States that do not require a nonunion employee to pay a fee are known as right-to-work states.