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.