Economic, Workplace and Environment Regulation

By Anne Marie Lofaso, Associate Dean for Faculty Research and Development and a law professor at West Virginia University College of Law. An extended version of this piece is posted at the Employment Policy Research Network’s blog.

On June 21, the Supreme Court decided Knox v. SEIU Local 1000, holding that the First Amendment does not permit public-sector unions in non-right-to-work states to require objecting nonmembers, absent express authorization (opt-in), to pay a special fee for the purpose of financing the union’s political and ideological activities. Until Knox, the Supreme Court had never questioned the constitutionality of the opt-out method. So long as unions did not compel union membership and periodically permitted workers to opt-out of non-chargeable expenses, any impingement on the public-sector workers’ (the objectors’) free speech had always been found to be constitutional.

The majority opinion (Justices Alito, Scalia, Kennedy, Thomas, and Chief Justice Roberts) starts by questioning the constitutionality of requiring non-members to pay even chargeable expenses. Indeed, the majority opinion questions the very existence of the non-“right to work” (RTW) state, which of course is grounded in the idea that workers should pay for representation even though they might not have voted for union representation, just as all of us still had to pay taxes to help finance the wars in Afghanistan and Iraq even though some of us (indeed, a majority of us) didn’t vote for President George W. Bush and even though we might have been ideologically opposed to President Bush’s political agenda. We do that because we are party to what is thought to be a social contract with a democratic government in which we receive the benefits and bear the burdens of majority rule. Notwithstanding these basic principles, the majority opinion dismisses the free-rider justification for compelling nonmembers to pay their fair share of representation services as “something of an anomaly.”

The majority opinion proceeds to characterize the opt-out pathway as “a remarkable boon for unions” and therefore unconstitutional. This is because, in the court’s view, “[c]ourts ‘do not presume acquiescence in the loss of fundamental rights.’” The Supreme Court, however, has presumed such acquiescence. For example, the Roberts’ Court presumed workers’ acquiescence in a union-employer agreement to waive employees’ right to a jury trial in a Title VII case. 14 Penn Plaza LLC v. Pyett (2009); see also Board of Regents of the Univ. of Wisconsin Sys. v. Southworth (2000) (holding that the“First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral”).The Court moved from that fallacious presupposition to its conclusion — that the opt-out pathway is unconstitutional because dissenting workers should not bear the burden of opting out of payments to support views that are politically distasteful to them. This is so even if the political activity actually benefits the bargaining-unit workers by, for example, lobbying for pro-worker legislation.

By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service at George Washington University Law School.*

The issue before the Supreme Court in Knox v. SEIU, decided June 21, 2012, was what procedures the union had to follow in order to allow non-members, who are required by law to support the union’s collective bargaining activities, to object to a special assessment that was going to be used in large part for political and other advocacy work that non-members claim they had a right not to support with their money. 

To know what side Justice Samuel Alito and his four colleagues were going to take, a reader only had to go to page 3 where he discusses the budget battle in California that prompted the special assessment that was challenged in Knox. He describes the debate “and in particular the consequences of growing compensation for public employees backed by powerful public sector unions” like SEIU (emphasis added).  If the issue is whether a “powerful” public-sector union or dissenting individuals will prevail, the smart money would not be on the union.

The conclusion that the union had to do more than it did was supported by seven Justices, and thus a ruling against it would not have been particularly noteworthy on its own. But the holding of the majority and how it got there are quite remarkable. First a little background. It is now an accepted part of labor law that, except in so-called right-to-work states, individuals who are not union members must pay their share of the costs of collective bargaining that results in contracts that benefit them as well as union members. But the Supreme Court has ruled that not every dollar that a union collects from its members as dues is properly attributable to collective bargaining, and over the years a system has developed under which non-members can object to paying those additional amounts. Thus, each year non-members have a right to opt-out and pay less than members pay, without having to give any reason for doing so, with the amount based on a formula derived from last year’s audited union expenses. Knox involved a special assessment, rather than a regular payment, and the issue was what were the rights of the would-be dissenters in that situation, where there was at least the possibility that some of those who did not dissent from the annual payment, might want to opt-out of the special assessment.