Freedom Foundation

Freedom Foundation sues WEA, WFSE to end forced unionization

On March 16, the Freedom Foundation filed a pair of separate class-action lawsuits — one on behalf of public school teachers and the other on behalf of state employees — against two of the most powerful unions in Washington state: the Washington Education Association and the Washington Federation of State Employees.

The plaintiffs in the cases represent all public-school teachers and state employees who are not union members but, under current law, are forced to pay for union activities with which they disagree.

Current laws allowing compulsory union fees are out of date and out of touch with legal developments over the past 40 years. Forcing employees to pay for union activities with which they disagree violates free speech and associational rights under the First Amendment.

The U.S. Supreme Court last month heard oral arguments in a case most believe will have a decisive impact on such issues: Janus v. American Federation of State, County and Municipal Employees. The court is expected to rule in late June that, under the First Amendment, laws and labor contract provisions that compel union nonmembers to pay union fees as a condition of employment are unconstitutional.

Hopefully, Janus will overturn an earlier decision, Abood v. Detroit Board of Education (1977) that affirmed the right of public-sector employees to opt out of union dues if they believed they were being used to fund candidates and causes they didn’t support. But Abood also required even non-represented workers to pay the union an “agency fee” to help pay the costs of collective bargaining.

Later decisions have unraveled Abood’s underlying rationale.

In 2012, the Supreme Court in Knox v. SEIU questioned whether Abood’s approval of compulsory agency fees “do(es) not cross, the limit of what the First Amendment can tolerate.” Two years later in Harris v. Quinn, the court went a step further, this time labeling Abood’s analysis “questionable on several grounds” and claiming that Abood “seriously erred” and “fundamentally misunderstood” the court’s earlier decisions.

Harris eviscerates Abood’s flawed logic – the Abood Court erroneously disregarded the argument that all the activities of a public-sector union are inherently political in nature and instead relied upon prior cases relating to private-sector collective bargaining, where the constitutional rights of workers were not even considered. In the public sector, all union activities are inherently political, even and especially collective bargaining. Thus, compelling public employees to pay agency fees is compelling them to support eh political speech and activities of another private party. And the First Amendment cannot tolerate a regime that forces an individual to fund political or ideological messages with which she fundamentally disagrees.

Washington’s teachers and public servants deserve better than this. Forcing them to fund a private party they do not support assaults their dignity and the dignity of their work. This practice should stop now, and these public servants should be repaid the money unconstitutionally taken from them for years.

One plaintiff, Ben Rast, is an industrial hygienist and compliance officer for the Department of Labor and Industry (L&I), a state agency that focuses on workplace safety. Ben’s workplace is exclusively represented by the Washington Federation of State Employees (WFSE).

Here is Ben’s story:

“When I was hired by L&I in 2001, the agency wasn’t yet a closed shop. Union membership in WFSE was strongly encouraged, but I didn’t have to join, and didn’t even have to pay an agency fee. There were two main reasons I chose not to join. My first and primary reason is because WFSE backed political candidates and causes with which I strenuously disagreed. The other reason had to do with a contract dispute taking place when I was hired. I was told that if things didn’t go the union’s way soon, there would likely be a one-day walk-out. The person who told me said that, even though I wasn’t required to participate in the walk-out, it would ‘be in my best interest’ to at least call in sick that day and not cross a picket line. Now, I don’t like being bullied into anything, and hate any organization that engages in bullying tactics. Also, I believed strongly in the mission of me and my coworkers to keep Washington workers safe and working. Walking out won’t serve that mission. I love my job. I want to keep doing this until I retire. But there is something that still leaves a sour taste in my mouth. Every month, a portion of my wages goes to a union that engages in political speech completely opposed to speech I would choose to exercise on my own behalf. It seems sad that in order to keep doing this job I love, I have to endure this violation of my conscience and values.”

Similarly, David Gaston, a public school teacher in Olympia, was originally pressured into joining the Washington Education Association (WEA), but left when he found he had other options for workplace support and insurance coverage.

“I was pressured to join the teachers’ union even though it didn’t represent my views regarding teaching special education. I quickly recognized the teachers’ union supported political candidates and issues that were against my political and religious beliefs. I know many teachers who feel the same way I do, but they are afraid to speak out in fear of repercussions from the union and potentially losing their job. Most recently, there was a political event in Olympia that the Olympia Education Association, through the union president, endorsed. I expressed my concern that the union president was representing his own political viewpoint and never asked union members to vote as to whether they supported the event or not. I received overwhelming support from fellow teachers stating the union wasn’t representing their views, either.”

For the first time in years these cases may give every Washington public servant a meaningful right to choose whether or not to associate with and support a union.

These class-action lawsuits seek a ruling that compelled agency fees are unconstitutional, an injunction barring the government, the WEA, and WFSE from seizing any more funds from union nonmembers, and the repayment of fees unlawfully taken from the plaintiffs and the class members – which could amount to millions of dollars.

The Freedom Foundation’s attorneys are representing the plaintiffs in both cases pro bono.

A copy of the Complaint in Carey v. WEA can be found here.

A copy of the Complaint in Danielson v. WFSE can be found here.