Why Presume a Union Nonmember Wants to Bankroll Union Politics?

Big Labor apologist John Nichols acknowledges it “may sound reasonable†to allow nonmembers to “opt in†to contributing to activities they can’t legally forced to bankroll rather than “requiring them to opt out.â€

Last Friday’s blog post on the U.S. Supreme Court’s ruling in Knox v. Service Employees International Union Local 1000 focused on just one of several interesting admissions in Justice Sam Alito’s majority opinion regarding the evident failure of the High Court over the course of the past five or six decades to ensure adequate protection for the First Amendment rights of union nonmembers who are forced under federal or state law to accept a particular union as their “exclusive†bargaining agent. Under the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA) and under state laws that are patterned after these two federal statutes, employees who would never voluntarily join a union may be compelled all the same to allow that union to do all their negotiating with their employer for them on matters concerning their pay, benefits, and work rules.

As was noted here last week, Alito’s opinion in Knox correctly points out that federal jurisprudence concerning private organizations other than labor unions has consistently found that the right to join and the right not to join must be equally protected under statutory law. It is at the same time true that the High Court has been willing for decades to sidestep this principle by giving its assent to federal and state statutes forcing union nonmembers to pay fees for union bargaining activities purportedly “benefiting†them. This tolerance for what amounts to taxation by a private organization is an “anomaly,†Alito admits.

A second peculiar feature of federal case law regarding the relationship between unions and employees is courts’ acceptance that it is constitutional to require union nonmembers who don’t wish to pay for union nonbargaining activities, including political and ideological endeavors they may abhor, to “opt out†from support for them. What this means in practice is that a union nonmember who is forced under federal or state law to pay fees for union bargaining he or she never asked for also typically has deducted from his or her paycheck money that goes into union electioneering and lobbying programs. Unless the union nonmember explicitly objects to Big Labor’s use of his or her money for nonbargaining activities, the Supreme Court has for decades allowed union officials to take the money without ever getting the employee’s permission.

Alito’s majority opinion finds 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 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. Alito also suggests that, in the future, the High Court may conclude that forcing union nonmembers to “opt out†of paying for union political and ideological activities generally is contrary to the First Amendment. Ultimately, union officials may have to be satisfied with asking nonmembers if they want to support union nonbargaining endeavors, and cease presuming that silence equals acquiescence, Alito posits.

Pro-forced unionism pundits are particularly outraged by this aspect of the Knox decision. In a very angry commentary (see link above), relentless Big Labor apologist John Nichols acknowledges it “may sound reasonable†to allow nonmembers to “opt in†to contributing to activities they can’t legally forced to bankroll rather than “requiring them to opt out.†However, he goes on to huff: “There is no question that, in the fast-paced world of contemporary politics, this is a dramatic new burden [on Big Labor].â€

The fact that not only ideologues like Nichols, but also Justice Stephen Breyer in his dissent, see no First Amendment violation in a union taking a nonmember’s money to spend on politics without that person’s consent, unless the nonmember explicitly objects to the confiscation, shows just how hostile labor policy has gotten toward the individual employee’s rights since the NLRA was first adopted in 1935. Alito’s majority opinion in Knox is a small step back toward sanity, but there is still a long, long way to go.