Who Must Support A Union?

Harris v. Quinn asks whether public employees can be compelled to pay “agency fees” to unions they don’t belong to. Garrett Epps explains the case:

[T]he state of Illinois in 2003 designated the home-care workers as state employees for the purpose of collective bargaining. The workers then held an official vote, and a majority voted to certify the Service Employees International Union as their “exclusive bargaining agent.”  Non-members, like the plaintiffs in this case, pay a fee that is a set annual “chargeable” percentage of union dues.  The rationale for the agency fees is that non-union employees benefit from the contracts unions negotiate, and thus would be “free riders” if the union could not charge them.  If unions cannot collect fees, soon employees would stop joining, and they would lose their ability to speak for workers. …

The argument against public-sector agency fees is this: Since public employees work for government, everything they bargain about is political. Higher wages, better benefits, new work rules—all affect the state budget.  Assessing fees from non-members thus requires them to pay for political speech. All the expenses, in other words, are non-chargeable.

Lyle Denniston parses yesterday’s oral arguments:

Aside from what was said explicitly from the bench, the atmospherics of Tuesday’s argument suggested strongly that this case has very large potential.  The mood of the Court’s more liberal members was one of obvious trepidation, and that of its more conservative members — except for Justice Scalia — was of apparent eagerness to reach anew the core constitutionality of compulsory union support among public workers.

Ian Millhiser presents the pro-union view of the issue:

For decades, public sector unions have operated under a simple bargain. Unions are subject to two restrictions — they may not require non-members to fund the union’s political activity, and they must bargain on behalf of every worker in a unionized shop, regardless of whether each individual worker belongs to the union. In other words, the union cannot encourage non-members to join by bargaining for higher wages or other benefits that only apply to union members. When a union secures a wage increase, the non-members benefit from the higher wages as well.

The cost of bargaining with an employer can be significant, however. Negotiators must have the sophistication determine what sort of bargain would be beneficial to the workers but also feasible for the company to deliver. Lawyers are needed to review contracts and to draft them. Because non-union members benefit from the high wages, increased benefits and other advantages of having a union bargain on their behalf, unions are permitted to charge agency fees to non-members in order to cover those non-members’ share of the bargaining costs.

In practice, these agency fees are typically paid out of the increased wages that the non-members receive through the collective bargaining process, so the non-members wind up wealthier in the long run even though they are paying some fees to the union. If a union fails to deliver higher wages, a majority of the workers in a bargaining unit always have the option to vote not to be represented by the union.

Scott Shackford reads the Cato institute’s amicus brief in support of the plaintiffs:

Of note in Cato’s argument is that they tackle two of the major arguments that the courts have accepted to allow for compulsory membership in unions at places of government – to preserve “labor peace” (conflicts resulting from multiple bargaining representatives for different employees doing the same work) and to avoid “free riders,” those who reap the rewards of collective agreements without contributing to the costs of representation.

It should be fairly obvious that in the case of often self-employed home health workers, these two arguments don’t apply. The workers are hired by and work for individuals, and that’s not changing. There are no threats to labor peace, nor would there be any free riders. These home care workers all work in the same field but they are in no sense in the same business together. In Cato’s brief, they note that this forced unionization is only about lobbying for more pay and benefits, using the union to give “feedback” to the state about rates set by laws. It is offering nothing else. Thus, Cato notes, the state has no actual compelling interest in forcing home care workers into accepting union representation

Ilya Shapiro adds:

Justice Alito was the most skeptical of the union/government position, pointing out that unions don’t necessarily act in all workers’ interest, even when they succeed in negotiating certain “gains.” For example, a productive young worker might prefer merit pay to tenure provisions or a defined-benefit pension plan. Chief Justice Roberts was similarly concerned about administering the line between those union expenses that could be “charged” even to nonmembers (because related to collective bargaining) versus those that can’t because they involve political activity. Justice Kennedy, meanwhile, noted that in this era of growing government, increasing the size and cost of the public workforce is more than simple bargaining over wages and benefits; it’s “a fundamental issue of political belief.” In no other context could a government seek to compel its citizens to subsidize such speech. A worker who disagrees with the union view on these political questions is still made to subsidize it.