High court deals another blow to public-sector unions

The Supreme Court on Thursday dealt an election-year blow to public-sector unions with a ruling that limits their ability to collect money for use in political campaigns from non-union employees at workplaces where a union is the bargaining agent.

The ruling comes in the wake of a major struggle over the rights of public-sector workers in which unions failed in their effort to recall Wisconsin Republican Gov. Scott Walker who’d signed a law curtailing the power of public sector unions.

The court said Thursday that non-union workers who benefit from union representation must affirmatively choose, or “opt in,” to having their “agency fees” used when a special dues increase or assessment is going to be used for political purposes. Simply giving them the option of opting out is not sufficient to protect their rights, the court held.

Charles Dharapak / AP

Justice Samuel Alito wrote Thursday's decision limiting public-sector unions from collecting fees for political purposes.

“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?” said Justice Samuel Alito, who wrote the majority opinion.

He was joined by Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred in the decision, but voiced criticism of the majority opinion which they said was overly broad and took on policy questions that the court need not have addressed.

The dissenters in the case were Justices Stephen Breyer and Elena Kagan.

Federal law and court decisions have long permitted unions to collect fees from nonmembers at union-represented workplaces to prevent them from free-riding on the union’s efforts and gaining benefits which the union won through collective bargaining.

But the court has also held that workers who don’t choose to join the union can only be required to pay a share of the cost of collective bargaining and can’t be forced to help pay for the union’s political advocacy.

So, for instance, if monthly dues for members were $100 and only 67 percent of that were used for collective bargaining and 33 percent used for political advocacy, then the non-members can only be required to pay $67 in what are called “agency fees” in lieu of union dues.

At stake in Thursday’s decision was a special assessment imposed by a local of the Service Employees International Union for use in campaigns in California in 2005 and 2006.

The SEIU was seeking to defeat two ballot measures: one would have required unions to obtain employees’ consent before charging them fees to be used for political purposes. The other would have given the governor the ability in some circumstances to cut public employees’ compensation.

The court said in its ruling Thursday that the union couldn’t impose the special assessment without first providing a chance for non-members to decide whether they wanted to contribute to the effort.

Reacting to the decision, SEIU Secretary-Treasurer Eliseo Medina said, “We’re disappointed obviously in this decision. It imposes more restrictions on the ability of public sector workers to organize in the civic life of this country.”

He added, “We’re going to be able to deal with it. I think we can comply but the point is not compliance -- we’ve already seen a lot of attacks on the right of public workers to engage in civic activity. And we also notice that there wasn’t a thing said (in the decision) about corporations who spent unlimited amounts of money without having to ask their shareholders for permission.” He said that fact “speaks volumes about the motivation” of the justices who joined Thursday’s ruling.

Assessing the decision, Susan Carle, who teaches labor law at the American University Washington College of Law said, “It will really have a big impact on unions’ ability to raise money in order to speak for their members on political issues.”

She called the decision “a clear case of the court making it quite a bit harder for unions for spend money on political issues. And that is an interesting contrast to its other opinions in the line of Citizens United where the court is making it much easier for corporations to spend money on political purposes without much accountability to their shareholders at all. It’s a very interesting un-leveling of the playing field quite deliberately.” 

Charles Craver, an expert on labor law at the George Washington University law school and the author of the book “Can Unions Survive?”, said the narrow ruling may have wider implications. He said it is possible that the court in a future ruling would extend the opt-in rule to all “agency fees” – “and if they do that, it would be a very significant change in the law.”

Reaction also came from the Mitt Romney campaign, in a statement by its domestic policy director Oren Cass. “Once upon a time, it was unions that were protecting employee rights. Sadly, employees today must turn to the Supreme Court to protect them from those same unions.”

He added that Romney “has laid out a comprehensive labor reform agenda that will restore power to workers and let them choose whether to unionize and whether to spend their hard-earned wages on union political campaigns.”