Jewish World Review June 22, 2012/ 2 Tamuz, 5772
Supreme Court deals blow to unions
By David G. Savage
ASHINGTON (MCT) The U.S. Supreme Court sharply criticized public-sector unions for using money from nonmembers to fund special political campaigns, stepping into the intense political debate about such unions and signaling that new constitutional limits may be coming.
The justices ruled Thursday that the Service Employees International Union in California violated the First Amendment rights of its dissident members by taking extra fees from their paychecks in 2005. The money was used to fight two anti-union ballot measures.
"This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible," said Justice Samuel A. Alito Jr., speaking for the court's majority. "When a public-sector union imposes a special assessment or dues increase, the union ... may not exact any funds from nonmembers without their affirmative consent."
The court fight carried echoes of the recent battles in Wisconsin, Ohio and other states where Republican governors sought to limit the power of public-sector unions, and the two dissenters Thursday made reference to those tensions.
"The debate about public unions' collective bargaining rights is currently intense," Justice Stephen G. Breyer said in a dissent. "There is no good reason for this court suddenly to enter the debate, much less now to decide that the Constitution resolves it."
Alito's opinion resolved only a narrow issue. Its rule applies to "special assessments" during the year, not annual dues. Only a small amount of money was involved, and the union agreed to refund it. Some of the Sacramento-area employees who objected paid an extra $6.45 a month in 2005.
In California and most states that bargain with public-sector unions, dissident employees must opt out if they do not want their share of fees to pay for politics. Alito said the right rule might require unions to get an affirmative "opt in" from employees before they can collect full fees.
"Requiring objecting nonmembers to opt out of paying" the full dues "represents a remarkable boon for unions," Alito said. "Unions have no constitutional entitlement to the fees of nonmember employees."
One of the ballot measures pushed by California Gov. Arnold Schwarzenegger in 2005 would have required public-sector unions to obtain an employee's affirmative consent before collecting fees that could be used for political purposes. Voters rejected the proposal.
Labor leaders in California downplayed the court's decision. "The implications here are extremely limited," said Steve Smith, a spokesman for the California Labor Federation. He said the case involved a "very rare" circumstance of a special midyear assessment.
But others said the ruling could be ominous for unions and for Democrats who rely on union support.
"This case is pretty revolutionary because it says we're moving from an opt-out system to an opt-in system," said Paul Secunda, a law professor at Marquette University in Milwaukee. "It will make it harder for unions to raise money and fight for their values."
Union officials accused the court of limiting the political rights of unions after the majority's 2010 Citizens United decision freed corporations to spend unlimited sums on campaigns.
"We are disturbed, but unfortunately not surprised in the wake of Citizens United, that the court's activist conservative majority went out of its way to place special burdens on public-sector unions in their effort to represent working people's interests," said Alison Omens, a spokeswoman for the AFL-CIO. Corporations do not face similar limits "when they spend shareholder money on politics," she said.
Since the 1970s, the Supreme Court has upheld an uneasy compromise between two sets of rights. On the one hand, employees have a right to form unions, and in some states, they may require all employees to pay dues or fees to support collective bargaining on their behalf.
On the other hand, the First Amendment has been interpreted as barring the government from forcing public employees to pay for political causes and candidates they oppose. For that reason, public-employee unions must give dissenting members the right to opt out of paying the share of dues that goes to politics.
In the California case, the SEIU said it gave employees an annual notice of the dues in June of 2005, including the share that would go to supporting the union and the share that would go to politics. But a month later, they announced the extra fee to fight Schwarzenegger's proposals.. Union leaders said they were not required to send a midyear notice giving employees a second chance to opt out.
The National Right to Work Committee sued on behalf of Dianne Knox and a group of dissident employees, but lost before a three-judge panel the 9th U.S. Circuit Court of Appeals in a 2-1 decision. Its judges agreed the union could offer refunds later.
But the Supreme Court disagreed by a 7-2 vote in Knox vs. SEIU. "Even a full refund would not undo the violation of First Amendment rights," Alito said.
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas agreed. Justices Sonia Sotomayor and Ruth Bader Ginsburg agreed with the result, but did not join Alito's opinion.
Breyer and Elena Kagan dissented. They disagreed with requiring the union to get employees' advance approval to opt in to such a fund.
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