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John Roberts Ain't What You Think He Is

The Anti-Union Court

by DAVID MACARAY

People who interpret Supreme Court Chief Justice John Roberts’ vote not to overturn “Obamacare” as evidence that this enigmatic Justice may, in fact, be more “liberal” than previously thought, need to go back and rethink their position.  Indeed, Roberts and his Court brethren are just as stubbornly pro-business and anti-union as they ever were.

Last month’s ruling in Knox vs. the Service Employees International Union (SEIU) removed all doubt.  In a decision that startled many observers (including Justices Breyer and Kagan), the Court ruled that non-union members should be required to “opt-in” (rather than “opt-out”) before their dues could be used for political purposes.  In this, the Court not only exceeded its own jurisdiction, but demonstrated that it is a nest of anti-union demagogues.

The original issue in Knox vs. the SEIU was whether a union must inform its non-members (in an agency shop, “free riders” receive the same wages and benefits as union members, even if they’re too gutless, selfish or narrow-minded to join) that a surcharge was going to be levied to raise money to defeat two anti-union ballot measures.  The court ruled that these non-members should have been notified of the surcharge in order to be given an opportunity to “opt-out” if they so chose.

As far as it goes, that’s probably a fair ruling.  If not entirely “fair,” then at least legal, in that it’s in accordance with a 1986 Supreme Court decision allowing non-members to withhold that part of their dues earmarked for political purposes.  Although these “free riders” are not permitted to withhold regular monthly dues—money used to pay for the collective bargaining that provides them with the decent wages and benefits they enjoy—they may legally stop that money from being used for other purposes.  So be it.

But the Roberts Court took it to a whole other level.  Writing for the majority, Justice Samuel Alito, Jr., declared that these non-members should not only be given advance notice of any surcharge, they should, in fact, be given the choice to “opt-in,” rather than “opt-out.”  In other words, they should have to volunteer to pay instead of requesting not to pay, a decision that radically alters the arrangement.

What was so outrageous about Alito’s opinion was that it far exceeded what the plaintiff himself was even asking for.  Knox wasn’t suggesting that the whole process be flip-flopped or jettisoned; rather, all he wanted was to be notified in advance of a surcharge, so he could opt-out of it.  It was Justice Alito who expanded the decision dramatically.

For years, companies have tried to get abstentions counted as “nays” in union certification elections.  You had your Yes votes, you had your No votes, and you had your abstentions.  Not surprisingly, management wanted to count abstentions as automatic No votes (unless the employees “opted-in”).  And that’s more or less what the Roberts Court went and did with this decision.

It’s bad enough allowing freeloaders to reap the benefits of a union shop without having to join up, but the Supreme Court made it worse.  Whereas unions typically assess monthly dues unless a non-member formally opts-out, the Roberts Court told America’s unions that they can’t collect those dues unless the non-member formally opts-in.  Whatever one’s definition of “anti-union,” the Roberts’ Court clearly conforms to it.

DAVID MACARAY, an LA playwright and author (“It’s Never Been Easy:  Essays on Modern Labor”), was a former union rep.   He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, published by AK Press. Hopeless is also available in a Kindle edition. He can be reached at dmacaray@earthlink.net