California law allows SEIU Local 1000 to represent nonunion members in contract negotiations, along with union workers. In exchange, the local collects dues from nonmembers but exempts them from paying for nonchargeable, or political, expenses and activities — around 44% of the budget. Midway through the 2006 election cycle, the union temporarily increased its monthly dues in order to create an “Emergency Temporary Assessment to Build a Political Fight-Back Fund” to fight against several propositions placed on the ballot. While non-union members were expected to pay only 56% of the increase, a non-union member sued, arguing that he and others should not have to pay any of the temporary assessment at all, including chargeable expenses.
The 7-2 decision held that the union was wrong to impose the increase on the non-member workers, as the non-members should have had the opportunity to opt out of any contribution intended to fund political lobbying efforts.
While seven justices agreed that forcing nonunion members to pay for political activities would be unconstitutional, the opinion of the court by Justice Samuel Alito and the four other conservative justices particularly undermine the union’s ability to function. Their opinion states that in order to impose any increase in dues for non-members, the union must go through bureaucratic hoops and get their specific consent.
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, agreed with the result but not the opinion. Their opinion noted that once again, the Roberts Court had gone beyond the scope of the case to unnecessarily set new constitutional precedent: that the in some circumstances, workers must effectively opt-in to paying union dues — rather than just being able to opt-out of parts of those dues:
Petitioners did not question the validity of our precedents, which consistently have recognized that an opt-out system of fee collection comports with the Constitution. They did not argue that the Constitution requires an opt-in system of fee collection in the context of special assessments or dues increases or, indeed, in any context. Not surprisingly, respondents did not address such a prospect.
Sotomayor warns that the majority opinion “strongly hints” that constitutional protections for unions may be their next target.
The majority pronounces the Court’s explicit holding…that “dissent is not to be presumed[,] it must affirmatively be made known to the union by the dissenting employee”…nothing but an “offhand remark,” made by Justices who did not “pause to consider the broader constitutional implications of an affirmative opt-out requirement.” The reader is told that our precedents’ “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.
Conservatives on the Supreme Court, like conservative politicians and activists, are helping write unions out of existence.
– Todd Phillips, Legal Progress Intern at the Center for American Progress