Major victory for workers as Supreme Court sides with PLF: unions cannot presume that workers consent to political subsidies

June 21, 2012 | By TIMOTHY SANDEFUR

The Supreme Court today issued its decision in Knox v. SEIU, the union fees case in which PLF (joined by Cato, MSLF, and CCJ), filed this amicus brief. The case was about whether the union violated the law by requiring non-members to pay a special assessment to support a political campaign without first issuing the legal notice that informs non-members of their right to object and get their money back. The First Amendment protects the rights of workers not to be forced to subsidize political campaigns—although they can be forced to subsidize other union activities. In a long series of cases, the Court has been forced to decide what sorts of protections non-members are entitled to. The justices held that the union in this case ailed to inform objectors of their rights to object and provide appropriate refund procedures so that objectors could get back the portion of their money going to union political activities.

But more than that—the Court endorsed the new approach that PLF urged in its friend of the Court brief: the First Amendment does not allow the union to assume that non-members are willing to subsidize the unions. Until today, the Court has repeatedly said that the burden is on the objecting worker to go through the whole objection-and-refund process, and if he or she doesn’t, the law will presume the worker is willing to subsidize union political activities. PLF argued in its brief—as we have in several previous cases—that this is contrary to the First Amendment. Courts never presume that people are willing to give up their First Amendment rights. In every other area of the law, they presume in favor of the dissenter, in order to protect individual freedom. Yet in the union area, we’re willing to assume that workers will give up their speech rights? That makes no sense. PLF argued that the Court should abandon that rule and presume in favor of dissent.

The Court today agreed:

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. Courts “do not presume acquiescence in the loss of fundamental rights.” Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union’s political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn’t the default rule comport with the probable preferences of most nonmembers? And isn’t it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. But a “[u]nion should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.” Although the difference between opt-out and opt-in schemes is important, our prior cases have given surprisingly little attention to this distinction. Indeed, acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles….

The presumption against dissent “approach[es], if [it] do[es] not cross, the limit of what the First Amendment can tolerate.” Therefore not only should the union have notified non-members of their right to object to the expenditure of their money on political campaigns, but the union “may not exact any funds from nonmembers without their affirmative consent.”

“This is a major victory for workers who do not want to subsidize union political bosses,” says PLF Principal Attorney Deborah J. La Fetra, who authored the brief. “The law often forces workers to contribute to unions that they don’t feel represent them. It gets worse when unions force even non-members to contribute to their political lobbying efforts. Today, the Court made clear that that violates the First Amendment rights of workers. Unions should ask permission first—not force workers to pay for the union bosses’ political views.”