Union Opt-Outs Are Next Battleground After Supreme Court Case

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By Chris Opfer

Labor groups and some of their toughest critics are still waiting to see whether the U.S. Supreme Court will allow public sector unions to keep charging nonmembers “fair share” fees. They’re also already gearing up for the next debate—over how easy it should be for workers who don’t want to join a union to opt out.

“Across the country, all sorts of schemes are set up to keep dues flowing to unions from workers who have never said they want to pay them,” Patrick Semmens, a spokesman for the National Right to Work Legal Defense Foundation, told Bloomberg Law. “There’s no question we will see much more of this if the Janus case comes down the way we hope it will.”

The right-to-work group is representing Illinois government worker Mark Janus in a lawsuit challenging a state system requiring government workers who choose not to join a union to pay “fair share” administrative fees related to collective bargaining. The Supreme Court is scheduled to hear arguments in that case next month and is widely expected to eventually ban the fee arrangements.

Unions have been preparing for that decision for more than three years, when the justices agreed to consider a similar case that ended in the 4-4 deadlock after Justice Antonin Scalia died. Advocates are kicking around a number of potential policy responses, including asking governments to pick up the tab for bargaining costs, giving unions the option not to represent bargaining unit workers who chose not to join, and increasing the number of hoops that a worker has to jump through to opt out.

A “card check” bill that died in the New York state legislature last year is already getting another look. The measure would allow workers to vote in favor of unionization by simply signing an authorization card. It would also give unions the power to set the requirements for opting out of a union, including by limiting the opt-out period and requiring workers to provide specific information.

“We just believe that if you have 300 workers on a site and 200 are paying union dues, those workers should not be subsidizing the other 100 workers,” New York state Sen. Marisol Alcantara (D) told Bloomberg Law. “People have fought and died for the right to organize.”

The Supreme Court has also been asked to take up a related question: What steps do workers have to take to show that they oppose paying the fair-share fees? The answer could become a lot more important if the justices say unions have to make fees voluntary.

Silence Raises Questions

Theresa Riffey’s lawsuit against a Service Employees International Union affiliate in Illinois may offer a preview of what’s next if the high court sides against unions on the fair-share fee question.

Riffey is among a group of health-care workers hired by the state government to assist elderly and disabled patients. The Supreme Court in 2014 said the state couldn’t force those workers to pay fair-share fees if they opted not to join the union. Riffey is one of some 80,000 workers now trying to get back the money they spent on fees before the decision.

An appeals court said the workers couldn’t sue the state in a class action because they didn’t show that each person in the group actually objected to having fees collected. The workers didn’t affirmatively consent to having the fees deducted from their paychecks, but the court said silence wasn’t enough to show that they opposed the fees.

“Although a requirement to recite the Pledge of Allegiance every morning might impermissibly impinge upon all students’ rights to choose whether to do so, it seems fair to say that many of them would happily have recited the Pledge anyway and thus suffered no First Amendment injury from the rule,” the U.S. Court of Appeals for the Seventh Circuit said, citing a 1943 Supreme Court decision.

Right-to-work groups, which are also representing the workers in the Riffey case, are likely to argue similarly that vast swaths of workers should be able to recoup fair-share fees if the high court bans them in the Janus case. Meanwhile, the New York bill is sparking a related debate about how hard it should be for workers to choose not to join a union or, potentially, opt out of paying fair-share fees.

The measure was unanimously approved for by a state Senate committee earlier this week. Observers told Bloomberg Law that the bill has a strong chance of becoming law in New York, where public sector unions have strong political ties to both parties. It’s also likely to get support from Gov. Andrew Cuomo (D), who recently cited the Janus case as a threat to unions and pledged to “do everything in his power to preserve workers’ rights and protect the right to organize and collectively bargain.”

Critics say the measure would give unions the right to effectively block workers from choosing not to join by closing the annual window to do so and creating other hurdles. But Alcantara, a former SEIU organizer, and New York State AFL-CIO President Mario Cilento told Bloomberg Law there’s nothing wrong with imposing some limits on opt-outs, the same way that many employers limit workers’ ability to opt in to benefits programs.

“Every public sector worker in New York knows that if they want to leave their union, they can do it and they know how to do it,” Cilento said.

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