Friday, June 22, 2012

Supreme Court Slaps Down Union Fee Assessment

Okay, so it wasn’t the much-anticipated healthcare decision.  Nonetheless, yesterday’s Supreme Court decision in Knox v. Service Employees International Union (decision here) was the last workplace law decision of this term, was pretty important in public-sector circles, and, since everyone got all dressed up in expectation of the healthcare and/or Arizona immigration decisions, merits at least a brief synopsis here.

The facts are straightforward:  Public-sector unions are, in certain instances, allowed to require non-member employees to pay “chargeable expenses” for services related to the union’s representation of those employees.  (For those who are unfamiliar with the world of union representation, it is possible to be in a bargaining unit that is represented by a union without actually joining the union as a member.  In those instances, the union may be able to charge non-member employees an “agency fee” similar to dues for chargeable expenses related to the union’s representation of the bargaining unit.)  Unions cannot, however, require non-members to pay for political projects or other non-representational matters.  In this case, the union sent all employees a notice of dues and chargeable expenses; non-members were allowed to opt out of the dues portion of the assessment.   The union later levied a special assessment for political purposes, but it did not give non-member employees the option of not paying the fee.  As we say here in the South, that’s when the fight started.

A group of non-member employees who did not approve of the forced political contribution brought a class-action lawsuit against the SEIU alleging that the mandatory assessment violated their First Amendment rights.  The trial court sided with the employees and ordered the union to issue another assessment that allowed non-members at least 45 days to opt out and to give a full refund to those who wanted it.  The U. S. Court of Appeals for the Ninth Circuit, however, in another of its wrongheaded decisions (see yesterday’s post), reversed, saying that the union’s procedure reasonably accommodated the interests of the union, the employer, and the employees.  The table thus was set for the Supreme Court.

Justice Alito, writing for a 7-2 majority, wagged his finger at the union (and the Ninth Circuit), finding that the trial court got it right.  The union’s assessment procedure, he found, was constitutionally infirm, particularly as it required non-members to opt out of the politically-motivated assessment, rather than making it an opt-in proposition:

Under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from non-members without their affirmative consent. … To respect the limits of the First Amendment, the union should have sent out a new notice allowing non-members to opt in to the special fee rather than requiring them to opt out.

Summing up the majority’s position, Justice Alito went on to write that:

Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. … But employees who choose not to join a union have the same rights.  The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. “First Amendment values [would be] at serious risk if the government [could] compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that [the government] favors.” … Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh [] notice and may not exact any funds from non-members without their affirmative consent.

Justices Breyer and Kagan dissented and were especially critical of the idea that non-member employees should be allowed to opt into political assessments, rather than be required to go through the opt-out procedures that are more favorable to unions.

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