U.S. SC rejects union's argument

Michael P. Tremoglie Jun. 21, 2012, 3:38pm



WASHINGTON (Legal Newsline) - The U.S. Supreme Court ruled 7-2 Thursday in favor of eight nonunion California state employees who said that an assessment the Service Employees International Union collected from them was unjust.

The Supreme Court affirmed the ruling of the federal district trial court and reversed the ruling of the U.S. Court of Appeal for the Ninth Circuit.

W. James Young, who argued the case before the court on behalf of the petitioners, was very pleased by the Supreme Court's judgment. Young is an attorney with the National Right to Work Legal Defense Foundation, which provided free legal assistance to the petitioners.

"We are pleased that a plain majority of the justices of the court were persuaded by our arguments," he said. "This was a broader based judgment that one would not have anticipated, given the ideological composition of the court."

The court needed to answer two questions. One was whether a state can require nonunion employees to pay a special labor union assessment that is intended for political expenditures if notice, information and opportunity to object to the said special assessment by the labor union is not provided.

The other was whether it is permissible for a state government to make civil service employment contingent upon payment of an employee union assessment that will be used to finance opposition to a political referendum.

The problem was that the union said it was going to collect the special assessment money to be used for political purposes from all the members. Normally, a union collects annual dues, in a non-right-to-work state, from nonunion members.

But they must then refund that portion of the dues that was not used for collective bargaining. The union must provide a report to the nonunion member - called a Hudson notice - that details the percentage of dues that were used for activities other than salary negotiation.

The SEIU said that it was going to be guided by the rules of the annual dues collection of the prior year for the special assessment. This amounted to keeping 56.35 percent of the special assessment.

The plaintiffs objected, saying the special assessment was 100 percent for purposes that were other than collective bargaining for salary and benefits and therefore ineligible to be billed to them.

The federal trial court concurred with the employees. The Ninth Circuit did not.

"One of the most substantial things about this is the Court rejected the notion of the Ninth Circuit that the First Amendment rights of the non-union members must be balanced against the pecuniary interests of the union. That is huge," Young said.

The SEIU's special assessment was to fund, according to the court's opinion, "a broad electoral campaign designed to defeat two important and controversial ballot initiatives and to elect sympathetic candidates in the 2006 gubernatorial and legislative elections.

"There were undoubtedly nonmembers who, for one reason or another, chose not to opt out or neglected to do so when the standard Hudson notice was sent but who took strong exception to the SEIU's political objectives and did not want to subsidize those efforts."

Justice Samuel Alito wrote that the "effect on nonmembers was particularly striking with respect to the union's campaign against Proposition 75 because that initiative would have bolstered nonmember rights.

"If Proposition 75 had passed, nonmembers would have been exempt from paying for the SEIU's extensive political projects unless they affirmatively consent. But a union cannot define the scope of its own notice obligations simply by promulgating a clause giving itself the power to increase fees at any time for any purpose without further notice.

"Thus, the effect of the SEIU's procedure was to force many nonmembers to subsidize a political effort designed to restrict their own rights."

This observation by Alito is significant, according to Young.

"I think Justice Alito's opinion is a substantial advance in employee freedom and recognizes that there are some substantial legal questions that are still outstanding that the court may have to address," he said.

Alito also made another observation in his opinion - albeit one that is not binding on the courts in subsequent cases. Such an observation is known as dictum and may be adopted in a future court opinion.

Alito commented about "free-riders" - nonunion employees who are represented by unions. He wrote, "Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of anomaly - one that we have found to be justified by the interest in furthering 'labor peace.

"But it is an anomaly nevertheless. Similarly, 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 ourcases have, that a nonmember cannot be forced to fund a union's political orideological activities, what is the justification for putting the burden on thenonmember to opt out of making such a payment?"

"We tried to raise this issue in a Supreme Court case called Davenport a few years ago about a Washington law changing an employee's obligation from an opt out to opt in," Young said.

"We won the case 9-0. The Court did not address this specific issue though."

Mark Mix, president of NRTW, believes the Court closed a giant loophole in labor laws permitting unions to acquire money from a worker for political purposes without the consent of the employee.

"Today, the United States Supreme Court upheld workers' First Amendment rights and struck down another union boss scheme to confiscate and spend state workers' hard earned money for politics without their permission," he said.

"Attorneys from the National Right to Work Foundation... argued, and the Court agreed, that the workers should not be forced to subsidize union officials' political spending, even for a short period of time."

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