The State of Washington allows unions to be the exclusive bargaining agent for all educational employees who work in a bargaining unit. The Washington Education Association is the union involved in the instant cases. The state allows a certified education union to bargain for a union security clause that allows the union to collect an agency fee from educational employees who are in the bargaining unit but do not want to join the union. Wash. Rev. Code § 41.59.100. This type of agreement is known as an agency shop agreement, and this Court has indicated that it might be the most restrictive form of compulsory unionism that still meets constitutional muster.

In a long line of cases, starting with Int’l Ass’n of Machinists v. Street, 367 U.S. 740 (1961), this Court has recognized that employees who do not want to join the union do not have to provide financial support for the union’s political activities. In Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), it was recognized that the nonmember’s right was based on the First Amendment.

The next logical step in this Court’s jurisprudence is a recognition that there is no obligation on a nonmember to dissent before First Amendment protections can be invoked. A dissent requirement is improper, since it takes away a nonmember’s right to silence, and since it is not narrowly tailored to advance the government’s interests in promoting labor peace and in fairly apportioning the costs related to collective bargaining.

In his partial dissent and concurrence in Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991), Justice Scalia stated that only those fees related to the statutory duties imposed on the union could be charged to nonmembers. This Court should adopt this standard, which respects nonmembers’ individual rights and precludes the possibility that a nonmember could be charged for political expenditures with which he or she does not agree.

But even if this Court does not adopt this standard, it should reverse the Washington Supreme Court’s ruling. The statute that the Washington Supreme Court addressed was not the statute allowing for an agency fee; rather, it was Wash. Rev. Code § 42.17.760, which requires a teachers union to obtain affirmative authorization from a nonmember before using that nonmember’s fee for expenditures related to political causes. The Washington Supreme Court held that this affirmative authorization requirement was unconstitutional.

This Court should hold that § 42.17.760 is firmly within the state’s constitutional powers. After all, the State of Washington is not constitutionally required to enact a statute that allows a fee to be charged to a nonmember; the state is not even required to allow a teachers union to become an exclusive bargaining agent in the first place. Given that Washington has the ability to eliminate collective bargaining and agency fees altogether, the state most certainly can enact a statute that allows such fee payments only under certain conditions.