The U.S. Supreme Court issued a decision that would protect workers from being forced to provide funds for political activities engaged in by unions. In Knox v. Service Employees International Union, Local 1000 (2012 U.S. LEXIS 4663; Case No. 10-1121), the U.S. Supreme Court held that a union must provide an “opt in” provision in the contracts issued to workers regarding the contribution of funds by non union members. Under California law, public sector employees in a bargaining unit must decide by majority vote whether they wish to create an “agency shop” arrangement wherein all employees are represented by the union. If a majority vote results in creating the union, then even employees who do not join the union must pay an annual fee for chargeable expenses.

Chargeable expenses are deemed to be the cost of nonpolitical union services related to the collective bargaining agreement. Under California law, a public sector union can bill nonmembers for such chargeable expenses but may not require them to fund its political or ideological activities. This was a way for the nonmembers to distance themselves from union activity that they did not agree with.

The SEIU, a union organized in California, attempted to force nonmembers to contribute to an emergency fund set up for political activities. The nonmembers fought this requirement and the U.S. Supreme Court has finally taken the side of the nonmembers. The U.S. Supreme Court’s recent, landmark decision prohibits the SEIU, and those similarly situated, to force nonmembers to fund political activities without their consent.

In the Knox v. SEIU decision, the union involved is a public sector union in California. This union, SEIU, sent a notice to all of its employees setting and capping the monthly dues and setting forth the expenses. The union determined that 56.35 percent of its total expenditures in the coming year would be chargeable. Under California law, nonmembers are responsible for the chargeable expenses.  Once the union determines chargeable expenses, the union must submit a notice to all of its members regarding what the remaining non-chargeable expenses are. Once the notice is sent, the nonmembers have thirty days to object to the full payment of the dues but would still have to pay the chargeable portion.

The issue arose in this matter since after submitting the thirty day notice, SEIU sent a letter to all of the employees in its unit that a 25 percent increase in dues and assessment for a “temporary political fight back fund” was being issued. The purpose of this new fund was to use if for furthering the union’s political fight in upcoming elections. Non union members were not given any choice as to whether or not they could opt out or opt into the fund. This mandatory increase resulted in $12 million dollars for the union’s political activity.

This class action lawsuit resulted. After it spent years in the courts, the U.S. Supreme Court has finally spoken: It determined that to force non members to pay into a special fund, political in nature, is a clear violation of the employee’s First Amendment right of freedom of speech and association. The union must provide a Hudson notice (30-day notice) and may not exact any funds from nonmembers without their affirmative consent.

Critics of this decision feel that the U.S. Supreme Court went too far by providing an “opt in” as opposed to “opt out” provision. They feel that the court is helping to write unions out of existence.  The decision, however, clearly provides protection for nonmembers who are forced to support politics against their will  This decision will help the employer provide a constitutionally sound workplace, free of unwanted political activity.

If you have questions on how this may impact your business, please contact:

• Julie P. Apter (716.566.5458; japter@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Labor and Employment Practice Group