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Thu Feb 7, 2013, 05:16 PM

Justice(s) at Work by Linda Greenhouse

'This column is prompted by the eye-catching headline that appeared two weeks ago: “Share of the Work Force in a Union Falls to a 97-Year Low, 11.3%.” As the article explained, many factors – global, domestic, economic, political – have contributed to the steep decline in the unionized work force, in both the private and public sectors. The trend, while accelerating, isn’t new. And on the surface, certainly, it has little to do with the Supreme Court.

But the story led me to think back to a decision the court issued last June 21. In the breathless run-up to the health-care decision, which came a week later, Knox v. Service Employees International Union didn’t get a great deal of attention. It should have, not so much for what the court actually decided but for what the decision portends for the future of labor law in the hands of an anti-union conservative majority, as well as for the majority’s plan of attack on precedents it finds inconvenient or disagreeable.

The issue in the Knox case seemed narrow, even arcane: whether a public employee union in California had properly handled a temporary dues increase intended to build a war chest to fight anti-union propositions on the state’s 2005 ballot. The specific question was whether employees who were not union members, but who under typical “agency shop” rules paid a fee to support the collective-bargaining work that the union undertook on behalf of all employees, had received an adequate opportunity to object to paying the special dues assessment.

Seven justices – all except Stephen G. Breyer and Elena Kagan – agreed that the union’s procedure was inadequate, an outcome of relatively little moment because the union had already returned the money to the objectors and had, in fact, argued that the case was thus moot. But Justice Samuel A. Alito Jr., writing for a five-member majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas, went beyond the confines of the case to suggest strongly that the decades-old accommodation between union members and non-members in public workplaces violates the First Amendment rights of the non-members.'


Noting that the words “opt in” didn’t even appear in the objecting employees’ brief, Justice Sotomayor said: “To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise.”

Justice Breyer, joined in his dissenting opinion by Justice Kagan, noted that “the debate about public unions’ collective-bargaining rights is currently intense.” He added, “There is no good reason for the court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”

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