In Knox Vs The Service Employees International Union (SEIU) the Supreme Court rebuked the fiercely partisan union for violating the free speech rights of non-members. The ruling diminished the political power of government employee unions, and the Justices appeared to be offering to further diminish that power whenever someone brings them a relevant case.
As an employer, the State of California is an “Agency Shop.” The State recognizes unions as the representatives of it’s employees and sets all wages, benefits and work rules through collective bargaining with those unions. State employees are not required to join the union that represents them but are bound by the terms of the contract between the state and the union.
Union dues are collected from employees by the State through payroll deduction. The unions say employees who refuse to join should still be required to pay dues for the “services” the union provides. Non-member employees object to paying any dues, and especially object to paying the portion of dues the union spends on political causes and funding candidates, virtually all of whom are Democrats.
In previous cases the Supreme Court ruled that the union may collect an “agency fee” from non-members to reimburse it for “chargeable expenses” mostly the cost of collective bargaining. But the union may not force non-members to help pay for the union’s political activities which are termed “non-chargeable expenses.” In one previous case the Supreme Court ruled that the union must determine the portion of it’s dues that go to “chargeable expenses” each year and send non-members a notice offering them 30 days to opt out of paying the non-chargeable portion.
In June 2005, SEIU, Local 1000 in California sent out its annual notice stating that 56% of it’s dues were for chargeable expenses. If a nonunion employee objected within 30 days to payment of the full amount, he/she was required to pay only the “agency fee” or the chargeable, 56% of the total.
But the notice also included a clever new clause stating that the agency fee was subject to increase at any time without further notice. It turned out that all the unions representing California state employees were planning to mount a major political campaign against several ballot propositions. One would have required state employee unions to obtain affirmative consent from each employee – member or n0n-member - before collecting any money from him/her for political purposes.
In July 2005 the union assessed all members and non-members an additional fee which it called “Emergency Temporary Assessment to Build a Political Fight-Back Fund.” Several non-member employees sued and the case finally reached the Supreme Court.
The majority opinion written by Justice Alito is an ominous warning to government unions, one of the largest funding sources of the Democratic party, and a major force for ever larger, ever more powerful government. Alito criticized the court ordered procedures non-members must follow to “opt out” of paying for union politics:
Requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions…Once it is recognized, as our cases have, that a non-member cannot be forced to fund a union’s political or ideological activities, what is the justification for putting the burden on the non-member to opt out of making such a payment?
Although the difference between opt-out and opt-in schemes is important, our prior cases have given surprisingly little attention to this distinction. Indeed, acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.
The Court ruled that the SEIU violated non-members First Amendment rights by not sending them a second notice that gave them the opportunity to opt out of contributing to the extra dues payment for Political Fight Back Fund. And from now on if a union imposes a special assessment such as the one at issue in this case it must send another notice to non-members and may not collect the fee from them unless they opt in.
Within the ruling there are invitations to non-members to bring forth more cases in order to further diminish union power. In his majority majority opinion Justice Alito called into question the legitimacy of the agency shop, characterizing it as “significant impingement on First Amendment rights” because payment of the agency fee, as a condition of employment, forces the non-member to support “an organization whose principles and demands he may disagree.” He pounced on a lower court ruling that misinterpreted previous Supreme Court precedent:
Contrary to the view of the Ninth Circuit panel majority, we did not call for a balancing of the “right” of the union to collect an agency fee against the First Amendment rights of nonmembers. Unions have no constitutional entitlement to the fees of nonmember-employees. A union’s collection of fees from nonmembers is authorized by an act of legislative grace—one that we have termed “unusual” and “extraordinary.” Far from calling for a balancing of rights or interests, [precedent] made it clear that any procedure for exacting fees from unwilling contributors must be “carefully tailored to minimize the infringement” of free speechrights.
Alito went on to complain that the union’s criteria for differentiating between chargeable and non chargeable was “so expansive that it is hard to place much reliance on its statistics.” The union had openly claimed that “lobbying the electorate” was chargeable. Alito rightfully dismissed this claim as “another term for supporting political causes and candidates.”
If unconsenting non-members pay too much, their First Amendment rights are infringed. On the other hand, if unconsenting non-members pay less than their proportionate share, no constitutional right of the union is violated because the union has no constitutional right to receive any payment from these employees. The union has simply lost for a few months the “extraordinary” benefit of being empowered to compel nonmembers to pay for services that they may not want and in any event have not agreed to fund.
Government unions and the politicians who accept their contributions in return for legislation that helps keep them in a position of power are having a bad year. They lost all three of their three Wisconsin recall elections, all attempts to reverse collective bargaining reforms enacted by Gov. Walker. More cases from California could give the court opportunities to require opt-in rather than opt-out for non-member payment of political dues and even to find the entire agency shop system Unconstitutional.