What’s at stake?
Unions' ability to engage in political advocacy on behalf of workers.

Issue:
Whether unions must send a notice to workers every time they impose temporary fee increases to cover costs of additional advocacy activities.

Decision date:
June 21, 2012

Outcome: 7-2 in favor of Knox. Justice Alito delivered the opinion of the Court. Justice Sotomayor wrote an opinion concurring in the judgment, which Justice Ginsburg joined. Justice Breyer wrote a dissenting opinion, in which Justice Kagan joined.

What the court held:
Service Employees International Union (SEIU) represents 1.8 million people in health care and public service. Non-member public employees are required by California state law to pay SEIU a “fair share fee” to defray the costs of union representation on their behalf (so-called “chargeable expenses”). To that end, each year SEIU sends its non-members a notice, as required by the Supreme Court, which informs non-members of their fair share fee and of their right to object to paying non-chargeable expenditures including money spent for political advocacy. Those fees are calculated based upon expenses during the previous year and do not take into account unforeseen expenses.

In 2005, SEIU issued a valid annual notice informing non-members of the percentage of their dues which would be allocated to union representation and gave them 30 days to opt-out of paying amounts associated with non-representation functions. The notice stated that dues were subject to change based on actual costs. A month later, SEIU imposed an emergency temporary assessment fee to defend against attacks on union plans and charged non-members who objected to the increase the percentage set forth in the initial notice as the amount associated with union representation. A group of nonmember state employees in California challenged this practice in a class action suit against SEIU.

Those employees claimed that SEIU’s failure to send out a supplemental notice when the union imposed a special assessment violated employees First and Fourteenth Amendments rights by forcing non-union employees to subsidize union political activities. SEIU countered that its notice was constitutionally and legally sufficient because the Supreme Court has recognized that the notice did not require an exact determination of the yearly expenditures, but merely a good prediction based upon the previous year’s audits. The Court previously recognized the impossibility of anticipating expenditures at the outset of the fee year and that once the union sent the original notice it need not send a second notice speculating how a fee increase might be spent.

Going well beyond what was necessary to decide the case, and overruling its prior precedent without being asked by the parties to do so, the Supreme Court has now held that when a union imposes a special assessment not previously disclosed, not only must the union provide a new notice but non-members must affirmatively “opt-in” to paying the assessment, contrary to the long-standing “opt-out” rule in the union dues context. While the Court’s holding only pertains to special assessments, the majority used broad language suggesting that it would be open to considering a challenge by non-members to “opt-out” arrangements for chargeable expenses as well. If the Court were to take that next step in a future case, requiring that unions obtain the affirmative consent of non-members before collecting any dues, it would effectively establish the United States as a “right to work” nation, crippling the ability of unions to advocate for workers. While some jurisdictions have seen fit to create “right to work” regimes legislatively, for the Supreme Court to do so in the guise of vindicating First Amendment principles would demonstrate stunning overreach and anti-labor bias.

By ruling against the SEIU, and hinting at even broader rulings to come, the Supreme Court is eroding the power of unions – today, to fight back against political attacks, but tomorrow, perhaps to live to fight at all.