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Workers Deserve the Right to Remain Silent

The California Legislature is considering a “Public Employee Bill of Rights” that (among other things) would restrict the state’s ability to hire outside contractors and swell SEIU’s membership in the Golden State. California's public employee union, SEIU Local 1000, is actually co-sponsoring the bill according to Assembly member Roger Dickinson's website. The irony is that SEIU Local 1000 currently stands accused of violating the First Amendment rights of the public employees it is supposed to represent. The First Amendment reads “Congress shall make no law…abridging the freedom of speech.” Legally speaking, that’s pretty cut-and-dry. That’s why the Supreme Court has so roundly rejected prior restraint, flag-burning laws, and campaign finance restrictions. It’s clear that the court respects the individual voice, especially in a political context. But what if an individual prefers to remain mute? Political speech permeates every activity of a union, and since unions are statutorily mandated in many states and enjoy the protection of federal law, they argue that their political activities are essential to ensuring their survival. So essential, they argue, that they are entitled to use agency fees (paid by non-union workers represented by the union in collective bargaining cases -- also known as “fair share fees”) for political purposes. While Communications Workers of America v. Beck bars unions from internally deciding what constitutes advocacy in their members interests and what constitutes electioneering, the Supreme Court recently backed (in Locke v. Karass) the argument that using agency fees for political speech is legitimate when the “activity is at the national (or extraunit), not the local, level” and “related to collective bargaining.” Now, however, the Supreme Court has a chance to redefine the balance between special union priveliges and the right of individual union members to refrain from political speech. Currently, California law (Section 3515.8 of the California Code) requires that mandatory deductions (so-called “fair share fees”) be taken from paychecks of public sector workers who decline membership in the state employee union, currently SEIU. The state law allows “fair share” to be used to advance a political agenda without any notice - so long as they return it if “any part of that fee paid… is either in aid of activities or causes of a partisan political or ideological nature” (non-chargeable expenses) and fee payers file a formal complaint. It’s worth pointing out that, according to SEIU’s own DOL filings, in 2010 SEIU spent only spent 44 percent ($128,650,757 out of $290,494,145) of dues collected from members on “representational activities.” Enter Dianne Knox. In July of 2005, she and fellow non-union employees of the State of California received a notice that  they would be subject to a temporary dues increase to endow a “Political Fight Back Fund” that would be used "to defeat Propositions 76 and 75,” 2005 California Ballot initiatives that would have limited per annum state spending and limited the ability of public employee unions to use dues for political advocacy. Employees who formally objected to the union’s political speech were still subject to the fee increase, though SEIU acknowledged that 100 percent of those funds would be used for political purposes. Dianne and other employees are suing to end this practice. In this case, the notice that SEIU sent was not detailed enough to qualify as a Hudson notice (pursuant to Chicago Teachers’ Union v. Hudson). The purpose of a Hudson notice (from Air Line Pilots v. Miller) is “to provide employees sufficient information to enable them to identify the expenditures that, in their view, the union has improperly classified as germane.” Unfortunately, this may cause the court to issue a narrow ruling (as it has in every related case since Beck) and only address whether or not SEIU was required to have sent a Hudson notice before the fee increase was implemented. Worse still, the case could be rendered moot by SEIU’s decision to mail a hundred-dollar bill to each of the plaintiffs, claiming that that amount of money is more than the refund they claim they are entitled to. But the Court has a rare opportunity to finally address the First Amendment concerns raised by Beck but left unanswered. Law and precedent dictate that union members either assent to political activism on their behalf or formally object to the Union’s political stance.  There is no middle ground for union members: they must either stand together with union leadership or formally speak up in protest. They lack the right to abstain from political discourse. As the dissenting opinion from the 9th Circuit Court notes, "The Union’s interest in this case is not a 'right' to nonmembers’ funds. The Union’s interest lies in receiving a fair contribution to its collective bargaining expenses. The Union has no legitimate interest, however, in collecting agency fees from nonmembers to fill its political war-chest." Workers should be free to exercise their right not to back union political activism through mandatory “contributions” deducted straight from their paychecks. Forcing workers to contribute to a political cause because of their chosen profession amounts to a negative suppression of their free speech rights. The First Amendment doesn’t just give us the right to make ourselves heard -- it gives us the right to remain silent.