Freedom Foundation

Lawsuit Challenges Constitutionality of Union-Enabling ‘Exclusivity’ Law

The Freedom Foundation and the National Right to Work Legal Defense Foundation announced today they have joined forces in support of a class-action lawsuit that could, if successful, change the rules of engagement between state government and public-sector unions not only in Washington but throughout the rest of the nation, as well.

Details of the suit were announced at a media event March 5, on the steps of the Washington State Supreme Court Building in Olympia.

The watershed case, filed in U.S. District Court the previous night on behalf of four Washington family childcare providers, is a direct attack on the principle of exclusivity, by which one labor union is designated as the sole bargaining representative for every individual worker within a given bargaining unit.

In the case of the plaintiffs, SEIU 925 was recognized in 2006 as the exclusive bargaining representative for thousands of family childcare providers throughout the state on the basis of a single election open to all of its potential members. However, despite the outcome of the vote, the four plaintiffs still don’t want to be union members, pay dues or even have the union bargain on their behalf.

Under current state law, they have no choice.

“Let’s set aside the fact there has only been one election in all these years and that, even then, only a small minority of those who could be potentially affected by the decision actually voted to recognize the union,” said Freedom Foundation General Counsel James Abernathy. “The plaintiffs believe those are important considerations, too, but their objection is more fundamental. They believe it violates a worker’s First Amendment rights under the Constitution to be forced to join, financially support—or even be represented by—a union, vote or no vote.”

The lawsuit also asks for damages in the amount of three years’ worth of “unconstitutionally collected dues for each of the plaintiffs,” Abernathy. “The plaintiff would have asked for more, but the statute of limitations only allows us to go back three years.”

Abernathy said the case could eventually be decided at the U.S. Supreme Court.

“Every precedent-setting case has to start somewhere,” he said, “and we think the Constitution is very clear on this point. No one should have to decide between quitting their job and being represented by a union against their will. It doesn’t matter whether 10,000 people want the union and only one person doesn’t. It’s a violation of that one individual’s First Amendment rights.”

Abernathy said the U.S. Supreme Court signaled its willingness to consider such a debate last summer when it ruled in Harris v. Quinn that Medicare-subsidized home healthcare providers in Illinois were not full-fledged state employees and, thus, could not be forced by the state to pay union dues or representation fees.

The plaintiffs in that case had asked the court to overturn Abood v. Detroit Board of Education, the 1976 ruling allowing compulsory dues collection by the union designated in a given state as the exclusive bargaining representative for public employees. The justices stopped short of doing so, but left the door open for a case more directly targeting Abood.

The Freedom Foundation case hopes to invalidate Abood if necessary—and more.

“Courts correct their earlier mistakes every day,” Abernathy said. “We think this is a perfect opportunity to correct a mistake that’s had a huge, negative impact on a lot of lives.”

Milton Chappell, staff attorney at the National Right to Work Foundation and co-counsel for the plaintiffs, has litigated dozens of similar cases across the country.

“Last year’s Harris decision declared what these providers already knew—a provider who is a partial public employee only because she receives state subsidy reimbursements should not be forced to pay any fees to a union against her will,” he said, “But Washington’s law mandates exactly the opposite.

“Washington law also demands that all providers be represented by SEIU, a hyper-political labor organization, and indeed makes it illegal for providers to bargain with the state, themselves,” Chappell explained. “That is as fundamental a free association violation as the forced fees. I’m happy to represent these providers who are determined to enjoy their constitutional rights.” 

Abernathy said unions would likely argue the need for exclusivity on several grounds, the most obvious being the “free rider” argument.

“They’ll say it’s not fair that they spend time and money negotiating with the state, and then people who don’t pay into the system get the benefit of that effort because they still get paid the union-negotiated wage,” he said. “But that’s a problem of the union’s own making, because it’s the unions themselves that support exclusivity laws.”

If every worker could exercise the right to decline union affiliation, Abernathy pointed out, the union-negotiated contract would not apply to someone who declined union representation. That way, those who chose not to be represented by the union could conceivably be hired at a lower—or higher—non-union wage, as is the case in the private sector.

“The unions require mandatory participation because, without it, not enough people would pay dues to make it worthwhile, and unions would actually have to earn their members’ support,” Abernathy said. “But that’s not much of an endorsement for the service they’re providing. In the real world, when no one wants to buy your product, you go out of business. You don’t bribe the government to give you a monopoly that forces people to buy it.

“We’re not trying to break the unions or make it more difficult for people to join them if they so desire,” Abernathy stressed. “We just don’t believe anyone should have to be represented by or fund an organization they don’t like as a condition of employment with the government.”

The Freedom Foundation is an Olympia-based nonprofit, nonpartisan think and action tank promoting the ideals of free markets and smaller, more accountable government.

Based in Springfield, Va., the National Right to Work Legal Defense Foundation, is a nonprofit, charitable, public-interest organization dedicated to the principle that all Americans must have the right to join a union if they choose to, but none should ever be forced to affiliate with a union in order to get or keep a job.