Friday, June 22, 2012

Knox v. SEIU - COTW #97

The Supreme Court issued its opinion in Knox v. SEIU yesterday. It probably felt a bit like the wrong person walking in to a surprise party: the room is filled with anticipation... deep breath... annnnd... and then universal disappointment. "You're not the health care opinion!" said everyone. But, Knox is still an important opinion, and it's a labor and employment law opinion... and now it's truly blessed because it's also the Lawffice Space Case of the Week!

The background of the case is that a public sector union can take "chargeable expenses" from nonmembers for union services related to collective bargaining. But, the union cannot require nonmembers to fund political projects (compelled speech is a First Amendment no-no). In this case, the union provided notice of the dues and chargeable expenses and nonmembers had an opportunity to opt-out of the dues.

Then, the union levied a special assessment for political purposes. Per the syllabus, "Nonunion employees were not given any choice as to whether they would pay into the fund." And therein lies the First Amendment concern.

The Court first decided a mootness issue, which hardly broke any new ground. If a party voluntarily ceases the challenged conduct, the Court will hear the case anyway because the party could just start back up after the case is dismissed.

The meat of the case is its First Amendment holding:
Under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent.
Justice Alito, for the majority, spent a good deal of time laying into opt-out schemes that require nonmembers to opt out of funding political speech instead of affirmatively opting in:
To respect the limits of the First Amendment, the union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out.
Justice Alito finished with a concise summary of the case:
Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010). But employees who choose not to join a union have the same rights. The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. “First Amendment values [would be] at serious risk if the government [could] compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that [the government] favors.” United Foods, 533 U. S., at 411. Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.
By my count, that's the last true labor and employment law case of the Supreme Court season. Of course, employers and employees (and pretty much everyone) is waiting for the health care opinion, which should be here at about 10:00 AM on Monday.

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