The State of Washington allows a union to become the exclusive bargaining agent for education employees. A permissible item in a contract between the education employees and the employer is an agency shop requirement:

A collective bargaining agreement may include union security provisions including an agency shop, but not a union or closed shop. If an agency shop provision is agreed to, the employer shall enforce it by deducting from the salary payments to members of the bargaining unit the dues required of membership in the bargaining representative, or, for nonmembers thereof, a fee equivalent to such dues.

Wash. Rev. Code § 41.59.100. As part of Initiative 134, Washington’s voters enacted Wash. Rev. Code § 42.17.760, which states "A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual."

The WEA admitted that it violated § 42.17.760, which led to two lawsuits. In the first, Washington v. WEA, No. 05-1657, the state filed an action against WEA seeking civil penalties. In the second, Davenport v. WEA, No. 05-1589, individual teachers who were not union members claimed that the violation of § 42.17.760 provided them a private cause of action against the union.

The Washington Supreme Court asked three questions: (1) Does the WEA’s Hudson process[2] satisfy Wash. Rev. Code § 42.17.760? (2) Does the requirement of affirmative authorization render Wash. Rev. Code § 42.17.760 unconstitutional? and (3) Does chapter 42.17 of the Washington Revised Code create a private cause of action? The court answered "no" to the first question and "yes" to the second. The answer to the second question obviated any need to answer the third.

Both the Davenport petitioners and the Washington petitioner contend that Washington’s opt-in statute is constitutional – i.e., that the Washington Supreme Court answered its second question incorrectly. But the Davenport petitioners also present the more fundamental question of whether unions ever have a right to collect fees intended for political use from nonmembers. Amicus curiae will address this broader question first.

[2] The Hudson process refers to minimal procedures required before a union may spend the full amount of a nonmember’s agency fee. Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986). This process is discussed below.