Back in 2015, the staff attorneys at the Freedom Foundation and the National Right to Work Legal Defense Foundation teamed up to represent five corrections officers at the Stafford Creek Corrections Center in Aberdeen, WA. These officers were members of officer bargaining units represented by Teamsters 117.
Mike Wagenblast and his fellow officers are full-fledged public employees, meaning under current Supreme Court precedent, they can be forced to pay the union fees, even if they do not want to be Teamsters. The Court concluded in Abood (1973) that non-union public employees can be forced to pay for traditional collective bargaining activities a union provides, but not a union's political and ideological activities. This reduced fee for nonmembers is called an "agency fee."
However, there are many practical difficulties in trying to distinguish political and nonpolitical union spending, so in a 1986 case called Hudson, the Supreme Court articulated several due process safeguards unions must observe before they take agency fees from non-union public employees. For instance, Hudson requires unions to provide advance notice of the basis for the calculation of the agency fee it intends to levy against an employee, which includes an obligation to provide an independent audit. Hudson also requires unions to be reasonably prompt and impartial in reviewing non-members' challenges to the agency fee calculation. And, while such a dispute is pending Hudson forces unions to place disputed fees in escrow.
These protections are so important because, as the Hudson Court noted, "forcing an individual to contribute even 'three pence' for the 'propagation of opinions which he disbelieves'" amounts to tyranny (quoting Thomas Jefferson and James Madison). It should be noted that the Hudson procedures don't really provide much protection from objectors. For example, it is a union, not an independent auditor, which qualifies those expenses that are political or nonpolitical. The independent auditor merely accepts those representations, and then ensures that the numbers add up in the calculation of a proposed agency fee. This post-Hudson system is rife with union corruption, as the Wagenblast case illustrates.
Teamsters 117, the union representing most Washington state corrections officers, employed a system intended to circumvent Hudson's protections. It automatically levied an agency fee upon employees equal to the amount of full membership dues – before employees chose to join or not join the union. Teamsters 117 then provided "notice" to employees that set forth a burdensome process for "opting out" and paying a reduced agency fee. Instead of providing the necessary protective procedures prior to exacting agency fees, Teamsters 117 instead chose to exact full union membership dues in the guise of agency fees. According to the Union's own notice, 68.96% of the agency fee collected from employees before they were given a chance to opt out went to Teamsters 117's parent affiliate to be spent on political expenses. That 68.96% is categorically an employee's property, and may not, under Hudson, be seized without first providing Hudson's procedural safeguards. Teamsters 117 utterly failed to provide those protections.
While Teamsters 117 didn't admit it was violating the First Amendment rights of Wagenblast and his colleagues, it did propose to settle the case by paying each plaintiff several hundred dollars and attorneys' fees. That's a good result for our plaintiffs in this case, but it highlights the continuing problem with compulsory unionism and opt-out schemes.
State law allows unions to forcibly extract money from workers. Without that state authority, unions could wield no direct control over workers' paychecks. Everyone intuitively understands that voluntary participation in a union is superior to the use of coercion, and yet states like Washington, Oregon, and California continue to permit coercive schemes like the one Teamsters 117 deceptively employs. Clearly, Abood needs to be overturned, once and for all. It almost happened with the Friedrichs case in 2016, but Justice Scalia's untimely death led to a 4-4 split that left Abood intact. Other cases are currently in the pipeline – notably several being litigated by our close partner, the National Right to Work Legal Defense Foundation. Hopefully in the next 12 months, the Supreme Court will correct the Abood's aberration. The Court foreshadowed this in Knox (2012), where Justice Alto remarked: "A union's collection of fees from nonmembers is authorized by an act of legislative grace… one that we have termed 'unusual' and 'extraordinary[.]'" Until this extraordinary legislative grace submits to the fundamental protections of the First Amendment, workers' rights will continue to play second-fiddle to unions' insatiable desire for money.
There is one sure-fire solution to the patchwork, labyrinthine system Abood created: voluntary unionism. Give workers a real, meaningful choice. Allow them to agree to pay a union before dues are taken from their paychecks. That's the recipe for more freedom, happier workers, and better unions.