Supreme Court to hear union dues case Tuesday

Michael P. Tremoglie Jan. 9, 2012, 4:37pm


WASHINGTON (Legal Newsline) - The U.S. Supreme Court will hear the appeal of eight California non-union civil servants over an assessment they say the Service Employees International Union wrongly collected from them.

An attorney for the National Right to Work Legal Foundation is making the oral argument Jan. 10 for the plaintiffs in Knox v. SEIU Local 1000.

In 2005, Local 1000 officials imposed a special assessment to raise money from all state employees covered by the union collective bargaining contract - regardless of their union membership status.

The assessment was said to be used to fund a political campaign and not for ordinary union expenses. The petitioners have challenged the union's action as a violation of their First, Fifth and Fourteenth Amendment rights.

A district court granted summary judgment in favor of the non-union members. But the U.S. Court of Appeals for the Ninth Circuit reversed the District Court.

The purpose of the SEIU special assessment political fund was to defeat several ballot proposals, including one that revoked the public employee unions' ability to force union dues and fees for political contributions without employee consent. However, California government employees were not given an opportunity to decline to contribute to the SEIU fund.

"I think the District Court has the superior argument," Chapman University law professor Ronald Rotunda said.

"Unions cannot force a member to pay for a political message that the member opposes. The union has the right under Citizens United to promote its own views. But the issue in this case is not what the union is saying, it is how it gets the money to pay for the bullhorn."

The high court will presumably answer two questions.

One is whether a state can require a non-union employee to pay a special labor union assessment that is intended for political expenditures - if notice, information and an opportunity to object to the said special assessment by the labor union is not provided.

The other question is whether it is permissible for a state, in this case California, to make civil service employment contingent upon payment of an employee union assessment that will be used to finance opposition to a political referendum.

There also is a First Amendment issue in Knox.

The Ninth Circuit basically balanced the First Amendment rights of the non-union members against the pecuniary interests of the union.

The petitioners believe this violates the strict scrutiny standard of judicial review of weighing a government interest against a constitutional principle. The petitioners will argue there was no compelling government interest to restrict the First Amendment rights, there was no narrow tailoring of this ruling and that it was not the least restrictive means for achieving the objective.

The petitioners will rely on a 1986 Supreme Court decision, Teachers Local No. 1 v. Hudson, that unions are required to include "an adequate explanation" for the basis of fees; must provide an audited financial report; and an opportunity to challenge before an impartial decision maker. Also, unions must provide an escrow for amounts reasonably in dispute.

Consequently, labor unions are required to publish annual reports known as "Hudson" notices for their regular annual dues.

The Knox case addresses whether the Hudson ruling requires an additional notice for a temporary special assessment. One of the pertinent factors in Knox is that the time to object to the union's actions had expired for the ordinary notice when the special assessment was levied.

The Ninth Circuit held that the union was not required to send a second notice when it collected the special fee.

The petitioners are maintaining that the Ninth Circuit's decision is contrary to the Hudson requirement because those objecting must be given enough information to determine the correctness of the fee increase.

The petitioners will also argue that the annual Hudson notice was not adequate. They will assert that the SEIU should have provided a second Hudson notice with the fee increase. They will also claim that the employees should have a chance to opt out of paying the political assessment.

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