I. IDENTITY OF PETITIONER

Petitioner State of Washington ex rel. Washington State Public Disclosure Commission (PDC), Respondent in the Court of Appeals, Division II and plaintiff in this action, seeks review of the decision designated in part II of this Petition.

II. citation to court of appeals decision

The Petitioner seeks review of the published opinion by Court of Appeals Division II, No. 28264-0-II, dated June 24, 2003. The opinion is attached as Appendix A.

III. issues presented for review

A. State legislation imposes a procedural requirement before a labor organization may use compulsory fees collected from nonmembers for certain political purposes. Is this procedural protection of nonmembers’ rights a violation of the First Amendment to the United States Constitution?

B. Did the Court of Appeals err by declaring RCW 42.17.760 unconstitutional when the statute has not been shown, either facially or factually, to impair the WEA’s members’ political expression?

C. The trial court entered findings of fact, supported by substantial evidence, that the WEA intentionally violated RCW 42.17.760. Should these findings and penalties imposed pursuant to the findings be sustained?

IV. REASONS WHY REVIEW SHOULD BE ACCEPTED

This case satisfies three of the four independent grounds for granting review of a Court of Appeals decision by the Supreme Court: RAP 13.4(b)(1), (3), and (4). The Court of Appeals’ majority ruling in this case presents a significant issue under the Constitution of the United States, conflicts with decisions of this Court, and presents issues of substantial public interest. Review should be accepted for any or all of these reasons.

V. STATEMENT OF THE CASE

This case addresses the relationship between a union and nonmembers who are compelled to pay fees to the union as a condition of their employment. This arrangement is known as an “agency shop”; the fees collected are referred to as “agency fees”. “Agency fees” are synonymous with “fair share” fees, which represent a nonmember’s pro rata share of expenses incurred by the union in negotiating collective bargaining agreements. See Leer v. Washington Educ. Ass’n, 172 F.R.D. 439, 443 (W.D. Wash. 1997). Nonmembers who are compelled to pay are called “fee payers”, or “agency fee payers”.

The union’s ability to collect any funds at all from nonmembers derives solely from state statutes, which are commonly called “agency shop” statutes. Such a statute “grants unions . . . coercive power over workers’ employment”, which requires a narrow construction. NLRB v. Oklahoma Fixture Co., No. 01-9516 (10th Cir. en banc, 06/18/03) (see also prior panel decision at 295 F.3d 1143, 1150-51 (10th Cir.2002)). The case law prohibits a state or union from requiring nonmembers to pay fees for political purposes. To do so violates the First Amendment. Airline Pilots v. Miller, 523 U.S. 866, 118 S. Ct. 1761, 140 L. Ed. 2d 1071 (1998).[1]

Respondent Washington Education Association (WEA) is a labor organization that represents public school employees in Washington. Petitioner Washington State Public Disclosure Commission (PDC), is the public agency charged with enforcement of campaign finance laws in the State of Washington. RCW 42.17.

RCW 42.17.760 (“760”) provides in its entirety:

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.

At all material times, WEA has collected compulsory fees from school employees who choose not to be members of the WEA. RCW 42.17.760 was part of Initiative 134, which was passed by the people in 1992. WEA knew what 760 required of it from the beginning. But WEA never sought affirmative authorization from nonmembers to use their fees for 760 political purposes. It continued to use those fees for 760 political purposes and never sought a declaratory order asserting the constitutional challenge to 760 that it now asserts in this case. WEA did nothing to comply with 760. RP 217–222, 256, 779.

The present litigation was commenced following a PDC investigation that concluded with the WEA admitting that it violated 760. Ex. 1. The PDC referred the matter to the Office of the Attorney General for prosecution because it believed that the appropriate fine for WEA’s admitted violation would exceed its statutory maximum authorization of $2,500. CP 5-10.

In the litigation, the Thurston County Superior Court ruled on cross motions for summary judgment that 760 was not unconstitutional, and that the “affirmative authorization” of 760 was not satisfied by the WEA’s requirement for an objection to be filed. CP 348-50.

The case went to trial without a jury on the factual issues of whether the nonmember fees were used for 760 political purposes, and whether the WEA’s violations of 760 were intentional. The trial court entered findings of fact, which included findings that the WEA used nonmember fees for 760 political purposes, and that the WEA intentionally violated 760. CP 366-82.

The trial court entered judgment against the WEA imposing a penalty and costs, and entered an injunction for WEA’s compliance with 760. CP 366–82. WEA appealed to Division II of the Court of Appeals.

On June 24, 2003, the Court of Appeals issued a split decision reversing the judgment of the trial court. The majority concluded that RCW 42.17.760 is unconstitutional under the First Amendment to the U.S. Constitution. Slip. op. at pp. 16–17. Judge Hunt disagreed with the majority that the statute is unconstitutional, but concluded that no penalty should have been levied for the WEA’s violation of the statute. Slip. op. at pp. 22–24.[2] Petitioner now seeks review by the Supreme Court of the decision of the Court of Appeals.

VI. ARGUMENT WHY REVIEW SHOULD BE ACCEPTED

A. This Case Presents A Significant Question Of Law Under The Constitution Of The United States (RAP 13.4(b)(3))

The principal issue presented by this case is whether the First Amendment to the United States Constitution somehow precludes a state from legislatively imposing procedural protections for nonmember employees who are compelled by state law to contribute to the union to support its collective bargaining activities. The case law is well settled that unions have no constitutional right to require nonmembers to pay fees, and no constitutional right to use fees that are collected for any purpose the union chooses. The sole source of any authority of a union to compel payment by nonmembers is state law.[3]

The National Labor Relations Act leaves regulation of the labor relations of state and local governments to the States. See 29 U.S.C. § 152(2).

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223, 97 S. Ct. 1782, 1793, 52 L. Ed. 2d 261 (1977).[4] Indeed, many states have laws that entirely bar union security agreements and outlaw agency shops as well.[5]

The statute at issue, RCW 42.17.760, imposes a procedural requirement only. If a union wants to use nonmember fees for 760 political purposes, it must get affirmative authorization to do so from the nonmember. If it does get that affirmative authorization, or, as in this case, does not even try to get such authorization, then the nonmembers compulsory fees cannot be used for the union's 760 political purposes. The practical effect of 760 is not in dispute: It creates a presumption that nonmember employees object to use of their compulsory fees for certain political purposes. Slip op. at p. 13. The union can overcome the statutory presumption by obtaining the employee’s “affirmative authorization” for the identified political use.

In a number of cases, in the absence of statutorily required procedures, the United States Supreme Court has considered what procedures the First Amendment requires unions to use to ensure that the free speech and association rights of nonmembers are satisfied with respect to the unions collection and use of mandatory fees for purposes unrelated to collective bargaining. In this context, the high court has stated that a union is not required to “presume dissent” on the part of nonmembers, and that the nonmember’s First Amendment rights are satisfied by affording nonmembers an opportunity to object to the use of their fees for purposes unassociated with collective bargaining services. See, e.g., Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 111 S. Ct. 1950, 114 L. Ed. 2d 572 (1990); Hudson, supra, 475 U.S. 292; Weaver v. University of Cincinnati, 970 F.2d 1523 (6th Cir. 1992), cert. denied, 507 U.S. 917, 113 S. Ct. 1274, 122 L. Ed. 2d 668 (1993); Mitchell v. Los Angeles Unified Sch. Dist., 963 F.2d 258 (9th Cir.), cert. denied, 506 U.S. 940, 113 S. Ct. 375, 121 L. Ed. 2d 287 (1992).

The majority below mistakenly converts this constitutionally permissible approach to protecting nonmembers’ rights under the First Amendment into a constitutional prohibition on the state’s authority to require any other approach—including one more protective of the First Amendment rights of nonmembers, such as 760. None of the cases relied on by the majority consider whether a state may adopt a statute requiring a different approach. The majority thus erroneously holds that a state may not presume dissent, and require the union to secure the nonmembers’ affirmative authorization before using their mandatory fees for political purposes, as 760 does. In this respect, the majority below fundamentally erred.

As Judge Hunt correctly explains in dissenting from the majority’s invalidation of 760:

The cases the majority cites do not hold that the Constitution bars a statutory provision, such as RCW 42.17.760, which requires a nonmember employee’s affirmative authorization before a union can use his or her agency fee for political purposes.

For example . . . the majority cites two Railway Labor Act cases, International Ass’n of Machinists v. Street, and Brotherhood of Railway and Steamship Clerks v. Allen, for the proposition that an “opt in” provision is not constitutionally required; with this proposition I agree. But these cases do not support the converse, advanced by the majority here, that an “opt in” provision such as Washington’s is constitutionally barred.

Slip op. at pp. 19-20 (citations omitted).

The decision of the Court of Appeals majority, that RCW 42.17.760 is unconstitutional, improperly restricts the State’s authority over labor relations and is contrary to established law. The Court of Appeals’ majority erred in converting one constitutionally permissible approach to protecting nonunion members’ First Amendment rights into the only constitutionally allowable approach. In this respect, the majority below erroneously intruded on the broad authority of the State to regulate the relationship between unions and nonmembers with respect to compelled fees and the state’s authority to regulate the financing of election campaigns.

To the extent that this activity involves support of political candidates, it must, of course, be conducted consistently with any applicable (and constitutional) system of election campaign regulation.

Abood, 431 U.S. at 235 n.32.

B. The Decision Of The Court Of Appeals Conflicts With Decisions Of This Court In Concluding That 760 Infringes On Some Unarticulated First Amendment Right Of Union Members (RAP 13.4(b)(1))

The Court of Appeals majority assumes that the union and its members have some unspecified constitutional right to use nonmembers’ compulsory fees for political purposes, and that 760 infringes on that right. Neither proposition is correct and neither is consistent with decisions of this Court.

Neither unions nor union members have any right to use a nonmembers’ fees for purposes other than funding the unions collective-bargaining related services. Indeed, a union has no right to require payment of such fees in the first instances unless state law authorizes it to do so. The only recognized justification for permitting states to impose mandatory payment of fees on nonmembers is to avoid “free riders” and have nonmembers pay their “fair share” of the costs of collective bargaining.

In Local 2916, IAFF v. Public Employees Relations Comm’n, 128 Wn.2d 375, 907 P.2d 1204 (1995), the Court, citing Abood, noted that the agency shop authorization in RCW 41.56.122(1) is limited to compensate the union only for its efforts in representing nonunion employees in collective bargaining, contract administration, and grievance processes. Local 2916, IAFF, 128 Wn. 2d at 377, n.1.[6] Similarly, in Ass’n of Capitol Powerhouse Eng'rs v. State, 89 Wn.2d 177, 570 P.2d 1042 (1977), the Court interpreted RCW 41.06.150 to require that the employees in an agency shop bargaining unit pay for the cost of collective bargaining services, and “nothing more”:

The relationship between the individual employee and the organization for employee representation is limited to contribution of dues in exchange for representation . . . . We look beyond form to substance. The relationship required by this statute is not “membership” in any ordinary sense. It is rather akin to a buyer seller or debtor-creditor relationship for collective bargaining services rendered, whereby the so-called member (buyer or debtor) pays dues covering his share of the expense of collective bargaining benefits to the union (seller or creditor). In the parlance of agency shop statutes, RCW 41.06.150 requires payment of a “service fee” and nothing more. Recognizing the substance of the relationship, we should not be misled by the label attached to it.

Ass’n of Capitol Powerhouse Eng’rs., 89 Wn.2d at 187 (emphasis added).

The conclusion of the Court of Appeals that 760 somehow implicates the First Amendment rights of union members is inconsistent with the principles recognized in these decisions. Nothing in 760 relieves nonmembers of their obligation to pay their share of the collective bargaining services of a union. Neither unions nor their members have a right to anything more with respect to nonmember fees—and even that right is of statutory, not constitutional, origin.

Similarly, the decision below is inconsistent with the jurisprudence of this Court in concluding that 760 somehow infringes on the political rights of union members. RCW 42.17.760 does not impair any union or union members’ right to have members union fees used for political purposes:

RCW 42.17.760 restricts the expenditures a labor organization may make in only one way: by preventing labor organizations from using agency shop fees paid by nonmembers to operate a political committee or influence an election. In prohibiting only the use of agency shop fees paid by nonmembers, RCW 42.17.760 inferentially allows labor organizations to use dues paid by members for contributions to political committees and candidates. The drafters of Initiative 134 prohibited use of agency shop fees collected from nonmembers. This leads to the logical conclusion that the Initiative did not alter the ability of labor organizations to use members’ dues for contributions under Chapter 42.17 RCW.

State ex rel. Evergreen Freedom Found. v. Washington Educ. Ass’n, 140 Wn.2d 615, 639, 999 P.2d 602 (2000) (emphasis added).

The majority’s analysis does not suggest or even consider whether the facts in this case compel a different conclusion. In fact, the record in this case is devoid of any evidence that 760 implicates–let alone impedes–members’ rights. The trial court evidence, Findings and Conclusions, and Injunction show no impairment of the members’ ability to collectively express their views while complying with 760.[7] CP 366-82.

C. The Court Of Appeals’ Invalidation Of RCW 42.17.760 Presents An Issue Of Substantial Public Interest That Should Be Decided By The Supreme Court (RAP 13.4(b)(4))

RCW 42.17.760 applies to all public and private labor organizations in the State of Washington and to the employees they represent.[8] The trial court’s unchallenged Findings of Fact 7 and 21 in this case concluded that approximately 8,000 nonmember public school employees were affected by WEA’s activities alone during the five-year period addressed. The number of employees statewide who would be affected by the wholesale invalidation of RCW 42.17.760 is plainly quite large. Whether the State somehow is constitutionally precluded from requiring unions to secure affirmative authorization from these nonmembers before using their mandatory fees for political purposes is a question of substantial public interest that should be decided by this Court.[9]

VII. CONCLUSION

For the foregoing reasons, the State respectfully asks the Court to grant its Petition for Review. Upon accepting review, the State respectfully asks the Court to reverse the decision of the Court of Appeals and affirm the trial court judgment.

RESPECTFULLY SUBMITTED this 24th day of July, 2003.

CHRISTINE O. GREGOIRE

Attorney General

D. THOMAS WENDEL, WSB #15445

LINDA A. DALTON, WSB #15467

Assistant Attorneys General

Attorneys for Petitioner