Chipping Away At Public Sector Unions

The Court’s other major ruling yesterday was Harris v. Quinn, in which a slim majority ruled that public sector unions cannot collect “fair share” fees from non-union members – in this case, Illinois home-care workers who are paid by the state – even if these non-members benefit from collective bargaining by the union:

The much-awaited decision limits, but does not reverse, the court’s well-trodden ruling from 1977, known as Abood. In that case, the court found that requiring non-union-members to pay “fair share” fees did not violate workers’ First Amendment rights, so long as those fees do not go to advancing specifically “political or ideological” ends.

The decision, written by Justice Samuel Alito, marks a loss for public sector unions, which may see their coffers and power depleted in coming years, although it’s not the worst-case scenario that many labor activists feared. The ruling stopped short of finding all “fair share” dues unconstitutional. It also does not affect all full-time public employees, but only a category called “partial public employees,” which includes a growing sector of home heath care workers.

The Dish covered the case when it was argued in January. So the Harris ruling does not overturn Abood, but rather limits its reach. Noah Feldman, however, suspects four out of five of the court’s conservatives would have liked to axe it entirely:

Abood’s value was never its imperfect logic but rather its practical wisdom in solving the problem of employees’ free riding on union efforts. In the real world, a public union could hardly function if its members could opt out. The Abood doctrine put a thumb on the scale by enabling legislation to block free riding.

Today, with public unions under intense criticism and with pension reform the order of the day in many states and municipalities, the politics look different. In dissenting, the four liberals expressed “satisfaction” that Abood hadn’t been overruled. In effect, one of the conservatives, probably Kennedy or Roberts, wasn’t prepared to provide the deciding vote against labor unions — for now. But their legal future doesn’t look rosy.

Or as Kilgore puts it:

I’d say the Court is short just one Justice of a majority willing to generally ban on First Amendment grounds “fair share dues” for non-union members who benefit from collective bargaining agreements, which would be a huge blow to the labor movement. Remember that in November of 2016.

Bazelon also fears for the future of public sector unions:

Once again, the First Amendment is turning out to be a powerful ax the court’s conservatives can pick up and wield against all kinds of laws and groups they don’t like, as I wrote last week.

Kagan is right when she says that the outcome of Harris is “at least better than it might be.” Abood stands. But when she adds that “our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision,” I’m not sure she can make it so just by saying it. Once the conservatives have teachers or firefighters or police officers before them who say they don’t want to pay their union dues, won’t they use today’s opinion as the stepping stone for toppling Abood and mandatory dues? The rules for the Supreme Court won’t change, and they work like this: Five votes turns the impossible into the possible.

But Kevin Roose’s interpretation is much less dramatic:

Pro-labor progressives will likely see Harris v. Quinn as the top of a slippery slope. … But these fears are largely unfounded for now. Today, the Court decided that teachers, firefighters, and other traditional public employees will still be covered by the collective bargaining laws that have existed since the 1970s. Public employees with unusual, state-backed working arrangements, like the 20,000 personal care workers in Illinois, may not be. The Court’s narrow ruling is an annoyance for the labor movement, but hardly a cataclysm.

Andrew Grossman is pleased that Abood is on its last legs:

The Court is right that Abood is “something of an anomaly” because it sacrifices public workers’ First Amendment rights of speech and association to avoid their “free-riding” on the dues of workers who’ve chosen to join a union, the kind of thing that rarely if ever is sufficient to overcome First Amendment objections. But Abood treated that issue as already decided by prior cases, which the Harris Court recognizes it was not–a point discussed at length in Cato’s amicus briefAbood was a serious mistake, the Harris Court concludes, because public-sector union speech on “core issues such as wages, pensions, and benefits are important political issues” and cannot be distinguished from other political speech, which is due the First Amendment’s strongest protection. A ruling along those lines would spell the end of compulsory support of public-sector unions, a major source of funds and their clout.

But Moshe Marvit accuses the court of making things up:

In Harris, the majority implied that it was not the objecting employees that were the true free-riders, but rather the union. The decision focused on the fact that hourly rates were set by Illinois law and there were significant statutory restrictions over what the union could bargain over. It highlighted the fact that the union received dues for its representation, but questioned what negotiations or grievance representation the union could deliver to employees.

In effect, this analysis places unions in a bind: any reasonable observer would conclude that the union negotiated with the state to set the terms of compensation, benefits, and other terms of employment, which are then codified into law. However, because the Supreme Court has demarcated this activity to the realm of lobbying, which is beyond the strict scope of representation, it concluded that the union is in effect collecting dues for doing little. The majority has drawn an untenable distinction and then complains that the distinction is not tenable.

And Harold Pollack dissents from the perspective of home-care consumers:

Individuals with disabilities and their families have a big stake in this, too. Theywe–require a stable and motivated group of direct care workers to perform important and difficult work. The alternative is to receive services from a disgruntled, low-wage high-turnover group of workers who are unlikely to provide competent and humane care. We consumers know first-hand why these issues are important. We know our great human debt to the men and women we trust so intimately to support people we love. …

Now that this partnership has been overturned by the Supreme Court, our state, direct care workers, and individuals with disabilities face a difficult choice. Direct caregivers can simply be hired and supervised as traditional public employees. This would deprive individuals with disabilities of the ability to select, supervise, and hire their own caregivers.  We can also shift a cumbersome management burden onto people with disabilities and their families, while depriving direct care workers of the collective bargaining mechanisms they seek. Neither option seems particularly fair or practical for anyone involved.