Under the First Amendment, when a public sector union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent, the U.S. Supreme Court holds, overruling a Ninth Circuit decision that the Service Employees International Union reasonably accommodated the interests of the union, the employer, and the nonmember employees by assessing unit employees an increased fee for a political fund and not giving nonunion employees a choice whether to pay into the fund.

The union had sent a letter to unit employees announcing a temporary 25% increase in dues and a temporary elimination of the monthly dues cap, billing the move as an “Emergency Temporary Assessment to Build a Political Fight-Back Fund” in order to help achieve the union’s political objectives in a special election and in an upcoming general election. The union noted that the fund would be used “for a broad range of political expenses, including television and radio advertising, direct mail, voter registration, voter education, and get out the vote activities in our work sites and in our communities across California.” A class action on behalf of nonunion employees was brought against the SEIU alleging violation of their First Amendment rights. A lower federal court ruled that the special assessment was for entirely political purposes, and ordered the SEIU to send a new notice giving class members 45 days to object and to provide those who object a full refund of contributions to the fund. However, the Ninth Circuit reversed that decision.

The Supreme Court says there was “no justification” for the SEIU’s failure to provide a fresh notice, based on the principle that nonmembers should not be required to fund a union’s political and ideological projects unless they choose to do so after having “a fair opportunity” to assess the impact of paying for nonchargeable union activities.

“The SEIU argues that nonmembers who objected to the special assessment but were not given the opportunity to opt out would have been given the chance to recover the funds by opting out when the next annual notice was sent, and that the amount of dues payable the following year by objecting nonmembers would decrease if the special assessment were found to be for nonchargeable purposes. But this decrease would not fully recompense nonmembers, who would not have paid to support the special assessment if given the choice. In any event, even a full refund would not undo the First Amendment violations, since the First Amendment does not permit a union to extract a loan from unwilling nonmembers even if the money is later paid back in full,” the Supreme Court reasons.

The Court also holds that the SEIU’s treatment of nonmembers who opted out when the initial notice was sent also ran afoul of the First Amendment. The nonmembers were required to pay 56.35 percent of the special assessment even though all the money was slated for nonchargeable, electoral uses, the Court says. Regarding the SEIU’s claim that the assessment was a windfall because chargeable expenses turned out to be 66.26 percent, the Court opines that “the SEIU’s understanding of the breadth of chargeable expenses is so expansive that it is hard to place much reliance on its statistics.”

“‘Lobbying the electorate,’ which the SEIU claims is chargeable, is nothing more than another term for supporting political causes and candidates. Second, even if the SEIU’s statistics are accurate, it does not follow that it was proper to charge objecting nonmembers any particular percentage of the special assessment. If, as the SEIU argues, it is not possible to accurately determine in advance the percentage of union funds that will be used for an upcoming year’s chargeable purposes, there is a risk that unconsenting nonmembers will have paid too much or too little. That risk should be borne by the side whose constitutional rights are not at stake. If the nonmembers pay too much, their First Amendment rights are infringed. But, if they pay too little, no constitutional right of the union is violated because it has no constitutional right to receive any payment from those employees,” the Court concludes. Knox v. SEIU