Tuesday, August 17, 2010

Circuit sustains First Amendment challenge by dissenting non-union members

Non-union members can be compelled to pay union dues if the union is using that money for non-ideological activity that benefits all employees, including the people who opted out of the union. That issue is tricky enough, but it gets even more complicated when we move to the fringes of permissible activity, i.e., when can the union charge non-members for its organizing activities?

The case is Scheffer v. Civil Service Employees Association, decided on June 28. The union here represents employees in the developmental disability, food service and courier industries which "have faced increased threats to their job security, wages, and benefits in recent years due to employers' efforts to contract out their work to non-union, private-sector employees in the same industries," the Court of Appeals observes. In addition, additional non-union employees have impaired CSEA's ability to achieve wage and benefit gains for its members. Public-sector employers in New York are trying to drive down wages by pointing to the lower wages among non-union employees in these industries.

Despite the challenges faced by the union, the non-union plaintiffs are entitled to summary judgment on their First Amendment claim that they do not have to pay for CSEA's organizing. While organizing is critical to CSEA's mission, these particular plaintiffs can opt out of those dues. As probationary employees, "they derive little meaningful benefit from the unionization of workers in the developmental disability, food service and courier industries, and therefore present no free-rider problem by not paying the costs of this organizing," the Court of Appeals (Parker, Jacobs and McLaughlin) holds.

The union argued that "higher union density in the public sector contributes to union bargaining power -- the ability of a union to negotiate better wages and benefits for those the union represents." Interesting theory, but the Second Circuit is not buying it. The Court reasons:

The union density theory fails to explain how organizing private-sector workers benefits union-represented public-sector employees who do not compete for jobs with the workers being organized. Here, the union has presented no evidence that probation officers compete for jobs with workers in the developmental disability, food service, and courier industries. Indeed, it is self-evident that probation officers do not do the same work as those who work in the developmental disability, food service, or courier industries. Nor do probation officers compete with people who do those jobs, except to the extent that everybody competes with everybody.

This analysis is complex, further supporting my theory that nothing is more complicated in constitutional law than First Amendment litigation. But in his concurring opinion, Judge Jacobs would "decide this case on an alternative basis that is simple, obvious, and available. I would hold -- categorically -- that the First Amendment is violated when public-sector unions charge dissenting nonmembers the cost of organizing private-sector employees."

As Judge Jacobs sees it, union organizing is an ideological proposition: "that government employment should be augmented and that privatization should be frustrated and prevented." He notes the ongoing political debate over whether to privatize public services and says that courts should not presume that the union's goal of reducing competition with the private sector "trumps the First Amendment right to agitate for reform, austerity, and economy in government."

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