Is It Really So Hard to Distinguish Between ‘Union Members’ and ‘Union Nonmembers’?

Harold Meyerson: Thomas Jefferson’s view of equality under siege

Is far-left columnist Harold Meyerson (pictured) really incapable of understanding the plain English in which a recent opinion by Supreme Court Justice Sam Alito is written?


As this blog has already observed, the U.S. Supreme Court’s decision in Knox v. SEIU Local 1000 last month did not represent a dramatic departure from previous judicial rulings defining the constitutional limits on Big Labor’s statutory power to force unionized employees who choose not to join a union to bankroll the union’s various activities.

Roughly half a century ago, the High Court determined that the provisions in the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA) authorizing workplace forced-unionism contracts could not pass constitutional muster if they were interpreted too literally. Both statutes seem to permit employers and union officials to agree with one another that front-line employees who refuse to join the union will be fired. But in 1963’s General Motors ruling and other such decisions, the Supreme Court has said that under federal and stataute statutes workers may be forced to pay fees for union bargaining activities purportedly “benefiting” them, but may not be forced to become full-fledged union members against their will. Hence, federal case law and some state statutes distinguish between the rights and obligations of “full union members” and (forced) “agency-fee paying nonmembers.”

Justice Sam Alito’s majority opinion in Knox found that when a union imposes a special charge on members that goes beyond their annual dues, the union may not presume that nonmembers want to pay the same special charge. Instead, the union may notify nonmembers that the assessment is being collected from members and allow them to “opt in” if they wish. However, nothing in the Knox decision precludes union officials from continuing, as they have up to now, to presume that forced fee-paying nonmembers do want to pay for political, ideological and other nonbargaining activities that union members pay for as part of their regular annual union dues. Alito did suggest that in the future the High Court may conclude that requiring union nonmembers to “opt out” actively in order to avoid paying for union political and ideological activities generally is contrary to the First Amendment.

Though since Knox the Supreme Court has issued much higher-profile rulings pertaining to Arizona’s controversial 2011 immigration law and Obamacare, a number of pro-forced unionism pundits are still in a tizzy about Alito’s ruling. Unfortunately, few are able even to characterize accurately what has them so upset.

For example, in an Independence Day column for the Washington Post, American Prospect editor-at-large Harold Meyerson got Knox almost completely wrong. The decision, Meyerson falsely insisted, creates “a legal double standard between unions and corporations.” He went on to claim, quite incorrectly: “By virtue of Knox, a union must ask its members’ permission to spend on political campaigns, but a corporation need not ask it shareholders.”

Is Meyerson really incapable of understanding the plain English in which Alito’s decision is written? Or is he cynically assuming his readers are ignorant and will not realize he’s lying? I won’t try to guess.

Instead, I’ll simply say that he has the case almost 100% wrong. Under the U.S. Constitution, by joining a union, you tacitly (if not also explicitly) agree to abide by all of its organizational rules. The union may legally spend your dues money on bargaining activities, or nonbargaining activities, including political and ideological campaigns, without getting your explicit permission. If you don’t like it, federal courts have indicated again and again, your solution is to quit the union. You have no First Amendment right as a union member to refuse to pay for union politics, as long as you remain a member. To cease paying for union politics, you have to cease being a member.

Because unions have the power under federal and state laws to operate as the “exclusive” (monopoly) bargaining agents of all the front-line employees in a workplace, including union nonmembers, and only union members get to vote for union officers and on union contracts, the “quit the union” solution has never been a fully satisfactory way for an employee to vindicate his First Amendment rights. But federal courts have found it is the only way. And Knox does absolutely nothing to change that.

Pace Meyerson, under Knox union officials most certainly do NOT have to get members’ permission to spend their dues money on electioneering and lobbying. To get the very limited power to opt out of union politics conferred by Knox, union members must first resign from the union.

One small thing that Meyerson (inadvertently?) got right is his choice of analogizing company shareholders with union members. As an individual, you have a right not to buy stock in any particular company. If you don’t like a company’s political or ideological activities, or believe they are inadequately disclosed, you can simply avoid buying the stock, or sell it if you already have it. By agreeing to own the stock, you become like a union member. The company does not need your permission as an individual shareholder to spend your money how it chooses, just as a union does not need any individual union member’s permission to spend dues money on politics. Federal law, both pre- and post-Knox, treats shareholders and union members the same in this regard. The difference is that, as a union nonmember, you can be required to pay fees that may legally be as high as full union dues to a union monopoly-bargaining agent.

There is no equivalent instance in which an American chooses not to buy a company’s stock, but is still legally required to put money in the company’s treasury as a “nonshareholder.” If such coerced “nonshareholders” actually existed, and if the Supreme Court found that companies had unrestricted power to spend “nonshareholders’” money on politics without their permission, then Meyerson would really have something to complain about. But in the real world, he is just blowing smoke.