[EL] Serious Question About Knox v. SEIU
Larry Levine
larrylevine at earthlink.net
Fri Jun 22 15:08:27 PDT 2012
Don't employees have a choice of unions called decertification? Can't they
also affiliate with a different union. It isn't easily accomplished. But it
can be done.
Larry
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jonathan
Adler
Sent: Friday, June 22, 2012 12:42 PM
To: Samuel Bagenstos; Volokh, Eugene
Cc: law-election at uci.edu
Subject: Re: [EL] Serious Question About Knox v. SEIU
Is it possible that another factor is the monopoly position of the union?
If so, might that mean if employees had a choice of union representation (as
I understand is the case in some European nations) that there would be less
of an issue? So, for instance, if the state required all motorists to
purchase insurance from a single, specified insurance provider it would then
be more analogous a public sector union.
Just a thought, and perhaps not one worth pursuing.
------
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
<mailto:jha5 at case.edu> jha5 at case.edu
http://www.jhadler.net <http://www.jhadler.net/>
SSRN: http://ssrn.com/author=183995
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Samuel
Bagenstos
Sent: Friday, June 22, 2012 3:31 PM
To: Volokh, Eugene
Cc: law-election at uci.edu
Subject: Re: [EL] Serious Question About Knox v. SEIU
I've never been especially persuaded by Abood myself, but for now I want to
take it seriously. I'm simply trying to understand the limits of the Abood
principle as glossed by Knox. And Justice Marshall's one-justice
concurrence in the judgment in PG&E seems to me to address a quite different
question. Justice Marshall's conclusion that PG&E does not give up its own
negative speech rights simply because it is a regulated monopoly doesn't
really draw a distinction with public-sector labor unions, nor does it say
anything about whether PG&E's customers should have Abood-type rights to
prevent PG&E from spending their money on ideological and political speech
to which the customers object. I don't imagine you would suggest that a
city could require AFSCME to include in its dues bill a statement from
National Right to Work explaining why unionism is horrible -- but that seems
to me the precise analogy with PG&E. The question I posed is whether
customers of auto insurance companies who are required by state law to
purchase auto insurance if they are to register a car, are, under the
Abood/Knox principle, entitled to object to the ideological or political
uses of the money they are required to pay -- just as workers who are
required by state law to contribute an agency fee if they are to work in a
unionized public workplace are, under the Abood/Knox principle, entitled to
object to the ideological or political uses of the money they are required
to pay.
One answer to this question might be that, in the special case of auto
insurance companies whose business is mandated by the state, Bellotti and
Citizens United don't apply, and states can simply ban political or
ideological expression by these organizations. If that were true, then
there wouldn't be any Abood/Knox problem. But that doesn't seem to me
tenable. So I'm still, honestly, wondering what the difference is between
the two situations -- or if there just isn't one.
(Also, a minor point: I certainly don't take the fact that Justice Marshall
or anyone else was a liberal as a prima facie reason for me, as a fellow
liberal, to agree with what he said about a particular case. So I'm not
sure what is the analytical as opposed to the rhetorical significance of the
"even-the-liberal-New-Republic" move here.)
On Jun 22, 2012, at 2:59 PM, Volokh, Eugene wrote:
I think Abood is wrong, chiefly because I think that the
government is free to decide to pay each employees $X and then give $Y to
the union (as, say, a "labor peace fee"), and that this is essentially what
is happening with the dues deduction in Abood.
But as to the dues to unions vs. payment to businesses
question, I should note that Justice Marshall discusses the latter point
inPG&E v. Public Utilities Commission in upholding the rights even of
regulated monopolies:
"The State seizes upon appellant's status as a regulated monopoly in order
to argue that the inclusion of postage and other billing costs in the
utility's rate base demonstrates that these items "belong" to the public,
which has paid for them. However, a consumer who purchases food in a grocery
store is "paying" for the store's rent, heat, electricity, wages, etc., but
no one would seriously argue that the consumer thereby acquires a property
interest in the store. That the utility passes on its overhead costs to
ratepayers at a rate fixed by law rather than the market cannot affect the
utility's ownership of its property, nor its right to use that property for
expressive purposes, see
<http://scholar.google.com/scholar_case?case=1554910653142299503&q=pacific+g
as+electric+first+amendment&hl=en&as_sdt=2,5> Consolidated Edison Co. v.
Public Service Comm'n of N. Y., 447 U. S. 530, 534, n. 1 (1980). The State
could have concluded that the public interest would be best served by state
ownership of utilities. Having chosen to keep utilities in private hands,
however, the State may not arbitrarily appropriate property for the use of
third parties by stating that the public has "paid" for the property by
paying utility bills."
And Justice Marshall joined the majority in Abood. Perhaps
he was mistaken in one or both cases - as I said, I think he and all the
other Justices were in Abood - but it's worth noting that this issue arose,
and even a liberal Justice such as Justice Marshall treated purchases from
businesses (even ones that one practically has to deal with) differently
from compelled dues payments to unions.
Eugene
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mathew
Manweller
Sent: Friday, June 22, 2012 11:46 AM
To: sbagen at gmail.com; liptaka at nytimes.com; richardwinger at yahoo.com
Cc: law-election at uci.edu
Subject: Re: [EL] Serious Question About Knox v. SEIU
I think the boring answer to this question, but probably the most on point
legally, is that the insurance company is spending their own money and the
SEIU is spending another person's money. Now, we as customers may think of
it as "our money" but once you give it to an insurance company--for whatever
rate/cost, whatever they plan to do with it, etc, it is THEIR money. They
don't need our permission on how to spend it. In the case of the SEIU, they
are taking someone elses money out of their paycheck.
Central Washington University
Associate Professor of Political Science
manwellerm at cwu.edu
509-963-2396
?The first lesson of economics is scarcity. There is never enough of
anything to fully satisfy all who want it. The first lesson of politics is
to disregard the first lesson of economics.? ? Thomas Sowell
>>> "Liptak, Adam" <liptaka at nytimes.com> 06/22/12 7:02 AM >>>
This interesting article by Benjamin Sachs in the Columbia Law Review
explores these questions:
http://columbialawreview.org/assets/pdfs/112/4/Sachs.pdf
________________________________________
From: law-election-bounces at department-lists.uci.edu
[law-election-bounces at department-lists.uci.edu] On Behalf Of Samuel
Bagenstos [sbagen at gmail.com]
Sent: Friday, June 22, 2012 9:57 AM
To: richardwinger at yahoo.com
Cc: law-election at uci.edu
Subject: Re: [EL] Serious Question About Knox v. SEIU
Maybe. But (a) maybe every insurance company in my state is engaged in some
ideological/political expenditures (if not all on the same side or the same
issue), and I'd just prefer that my money go to paying claims and associated
administrative expenses rather than subsidizing political speech on issues
that I have not made my own; and (b) I don't necessarily have to work in the
public sector, not all public sector jobs are unionized, and not all
unionized public sector jobs are represented by the same union. If I don't
like AFT, I can work as a teacher in a private school (where, if I have a
union, it won't be a public sector one), or a charter school (where if I try
to unionize they'll fire me for sure!), or I can work in a next-door
district represented by NEA.
Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109
sambagen at umich.edu <mailto:sambagen at umich.edu%3cmailto:sambagen at umich.edu>
<mailto:sambagen at umich.edu>
http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411
http://disabilitylaw.blogspot.com/
Twitter: @sbagen
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