Constitutionalizing Paycheck Protection: What Knox V. Service Employees International Union Means for American Labor
Hogler, Raymond L., Labor Law Journal
In June 2012, the U.S. Supreme Court issued its decision in Knox v. Service Employees International Union, Local 1000 (SEIU).1 Justice Samuel Alito wrote the majority opinion in which Roberts, Kennedy, Scalia, and Thomas joined, holding that SEIU had violated the constitutional rights of individuals paying an agency fee for representation services by not allowing those individuals to opt out of a union assessment. Justices Sotomayor and Ginsburg concurred in the result, and Justices Breyer and Kagan dissented. Even though the case dealt specifically with the notice of an assessment required under California's public sector collective bargaining law, the Court's ruling has broad consequences for union security provisions in labor contracts across the United States. The sweep of the Court's language will likely provoke more litigation in public sector labor agreements and will spill over to private sector unions under the National Labor Relations Act (NLRA.) As a result, union membership in this country will continue its ongoing decline in density, political influence, and economic power; and American wage earners will continue to experience rising levels of inequality.
This article begins with a summary of the facts in Knox, which are relatively straightforward. It then focuses on Justice Alito's discussion of the constitutional dimensions of the case and analyzes the reasoning the majority uses to reach and sustain its First Amendment conclusions. In developing a narrative about the "marketplace of ideas," the majority undercuts the value of collective action in our society and one of the important procedures by which workers can achieve group coherence and solidarity. Effectively, the Court puts its judicial imprimatur on an anti-union strategy dating from attacks in the early 1940s on the Wagner Act and variously reprised since that time as "paycheck protection." The Court's operative premises in Knox are cultural rather than juridical; and the lack of substance either in precedent or evidence confirms the antiunion tilt of four members of the Court and their occasional fellow traveler, Anthony Kennedy. In the end, what could not be achieved through democratic processes in the "marketplace of ideas" has been accomplished by judicial fiat.
II. The Background to Knox
In 2005, then- California Governor Arnold Schwarzenegger called for a special election to deal with the state's budget problems. Among other proposals, Schwarzenegger asked voters for changes in the public sector collective bargaining laws. One item, Proposition 75, would have required any employee in a bargaining unit to sign an express consent form allowing the union representative to spend dues money for political purposes. The question was put as follows: "Should public employee unions be required to obtain annual written consent from each member in order to use a portion of that member's dues for political activity?" Voters defeated the initiative by a vote of 53.5-46.5 percent. Donors supporting the proposition contributed $5,843,989; opponents raised $54,117,749 to defeat the measure. The California Teachers Association contributed over $12 million to the campaign, and SEIU donated $1.75 million.2
SEIU Local 1000 sent all bargaining unit employees a notice in June 2005 informing them that approximately 56 percent of total dues for the year would be devoted to collective bargaining activities and the remainder to other union initiatives. Any dues or fee payer who notified the union of an objection within thirty days would be charged only for the amount of collective bargaining expenditures and not for any money used for political purposes. The notice also stated that the fee could be raised in the future without farther notice.3 Two months later, the local informed members and fee payers that dues would be increased to fight Schwarzenegger's ballot initiatives and to defeat his 2006 re-election bid.4 The local did not give fee payers an opportunity to "opt out" of the assessment. …