The Supreme Court Just Dealt a Devastating Blow to Public Unions

A banner showing the state of Wisconsin in the shape of a fist for union solidarity is seen July 28 , 2011 during a protest on Capitol Hill in Washington, DC.
National Journal
Sam Baker and Emma Roller
June 30, 2014, 6:13 a.m.

The Su­preme Court ruled in a 5-4 de­cision on Monday that man­dat­ory pub­lic uni­on dues vi­ol­ate some mem­bers’ First Amend­ment rights.

The case, Har­ris v. Quinn, in­volves Pamela Har­ris, a home-care­giver in Illinois who takes care of her dis­abled son. Har­ris is among home care­givers who have de­cided not to uni­on­ize through the Ser­vice Em­ploy­ees In­ter­na­tion­al Uni­on, opt­ing in­stead to bar­gain dir­ectly with the Medi­caid re­cip­i­ents who de­cide how much money to al­loc­ate to their care­givers.

The case posed a chal­lenge to so-called “fair-play fees,” which al­low uni­ons to col­lect dues from em­ploy­ees who aren’t in the uni­on but who still be­ne­fit from the bar­gains uni­ons strike with em­ploy­ers.

In the case of pub­lic-sec­tor uni­ons, though, the em­ploy­er is the gov­ern­ment. And for that reas­on, the chal­lengers in Har­ris ar­gued, the uni­ons’ col­lect­ive bar­gain­ing is in­her­ently a polit­ic­al activ­ity — uni­ons are es­sen­tially lob­by­ing the gov­ern­ment.

The chal­lengers said al­low­ing pub­lic-sec­tor uni­ons to col­lect fair-play fees is there­fore re­quir­ing nonunion em­ploy­ees to sup­port polit­ic­al activ­it­ies they don’t ne­ces­sar­ily agree with — a vi­ol­a­tion of their First Amend­ment rights.

Writ­ing for the ma­jor­ity in the case of Har­ris v. Quinn, Justice Samuel Alito said that the pre­ced­ent that had up­held the state of Illinois’ right to re­quire mem­ber­ship dues was shaky.

The Su­preme Court’s pre­ced­ent on pub­lic uni­ons, a 1977 case called Abood v. De­troit Board of Edu­ca­tion, had found that nonunion mem­bers may be re­quired to pay mem­ber­ship dues in ex­change for col­lect­ive bar­gain­ing.

“Abood it­self has clear bound­ar­ies; it ap­plies to pub­lic em­ploy­ees. Ex­tend­ing those bound­ar­ies to en­com­pass par­tial-pub­lic em­ploy­ees, quasi-pub­lic em­ploy­ees, or simply private em­ploy­ees would in­vite prob­lems,” Alito wrote. “If we al­lowed Abood to be ex­ten­ded to those who are not full-fledged pub­lic em­ploy­ees, it would be hard to see just where to draw the line, and we there­fore con­fine Abood‘s reach to full-fledged state em­ploy­ees.”

In her dis­sent, Justice Elena Kagan called Alito’s com­ments “gra­tu­it­ous” and “mis­taken.” She wrote that the Abood de­cision provided more than enough basis to up­hold Illinois’ law.”

Monday’s rul­ing means that hun­dreds of thou­sands of home care­givers — in Illinois and in oth­er states — will be free to stop pay­ing uni­on mem­ber­ship dues, as they are ef­fect­ively no longer con­sidered pub­lic em­ploy­ees.

Har­ris v. Quinn has at­trac­ted its share of polit­ic­al at­ten­tion from the right and the left. As The Wash­ing­ton Post‘s Ly­dia De­Pil­lis ex­plains, GOP back­ers were friendly to Har­ris’s cause:

Pre­serving her own right to not sup­port a uni­on, though, wasn’t enough for Har­ris. With the help of the Na­tion­al Right to Work Co­ali­tion, an anti-labor group backed by large donors like the Koch and Walton fam­il­ies, she chal­lenged the state’s right to des­ig­nate a uni­on of pub­lic em­ploy­ees as their their sole rep­res­ent­at­ive. The right has been well settled in case law stretch­ing back to the 1970s, and Har­ris lost in lower courts. But the Su­preme Court took the case, in­dic­at­ing it might be will­ing to re­vis­it the pre­ced­ent.

Pub­lic-sec­tor uni­ons have suffered many set­backs over the past few years — right-to-work laws in states such as Michigan and In­di­ana have drastic­ally lim­ited uni­ons’ abil­ity to re­quire mem­bers to pay dues. And in 2011, Wis­con­sin Gov. Scott Walk­er set off a polit­ic­al firestorm when he stripped state work­ers of their right to bar­gain col­lect­ively.

The phras­ing of Monday’s rul­ing might ul­ti­mately be more troub­ling for pub­lic-sec­tor uni­ons than the out­come it­self. Alito wrote that the chal­lengers in this par­tic­u­lar case wer­en’t truly gov­ern­ment em­ploy­ees, so the Court’s past de­cisions on pub­lic uni­ons didn’t ap­ply.

Al­though that doesn’t dir­ectly chip away at the Court’s earli­er pro­tec­tions for purely pub­lic uni­ons, Alito also said the Court’s pre­ced­ent re­lied on “ques­tion­able found­a­tions” — a sign that the con­ser­vat­ive justices might be will­ing to chip away fur­ther at pub­lic-sec­tor uni­ons in the fu­ture.

There may be one sil­ver lin­ing for pub­lic uni­ons, though. The Har­ris v. Quinn rul­ing is some­what nar­rowly tailored to home care­givers, known as PAs.

“PAs are much dif­fer­ent from pub­lic em­ploy­ees,” Alito wrote. “Un­like full-fledged pub­lic em­ploy­ees, PAs are al­most en­tirely an­swer­able to the cus­tom­ers and not to the State, do not en­joy most of the rights and be­ne­fits that in­ure to state em­ploy­ees, and are not in­dem­ni­fied by the State for claims against them arising from ac­tions taken dur­ing the course of their em­ploy­ment. Even the scope of col­lect­ive bar­gain­ing on their be­half is sharply lim­ited.”

Pub­lic uni­ons like the Amer­ic­an Fed­er­a­tion of Teach­ers quickly de­rided the rul­ing. “While the court up­held the im­port­ance of col­lect­ive bar­gain­ing and uni­ons to fam­il­ies and com­munit­ies, let’s be clear that work­ing people, who have as­pired to the middle class and tried to make a bet­ter life for their fam­il­ies, have taken it on the chin for years,” AFT pres­id­ent Randi Weingarten said in a state­ment. “The Roberts court has con­sist­ently ruled in fa­vor of cor­por­ate in­terests, while di­min­ish­ing the rights of labor. This court has built a re­cord of weak­en­ing the rights of both voters and work­ing fam­il­ies; no one should be sur­prised by this de­cision.”

The Har­ris de­cision is more than just an­oth­er in­stance of uni­on set­backs, though. It’s also yet an­oth­er win for con­ser­vat­ives who have been try­ing to use the First Amend­ment to push their causes.

From cam­paign fin­ance law (Cit­izens United) to the Af­ford­able Care Act’s con­tra­cep­tion man­date (Hobby Lobby), the First Amend­ment has be­come the GOP’s iron­clad de­fense against gov­ern­ment reg­u­la­tions. The Har­ris v. Quinn rul­ing just ad­ded an­oth­er plate to the GOP’s ar­mor.

This post will be up­dated.

{{ BIZOBJ (video: 5054) }}

What We're Following See More »
Trump to Rubio: Run for Reelection
3 hours ago

Donald Trump may have defeated Sen. Marco Rubio's presidential ambitions, but he wants the man he dubbed Little Marco to keep his job in the Senate. "Poll data shows that @marcorubio does by far the best in holding onto his Senate seat in Florida," Trump tweeted Thursday evening. "Important to keep the MAJORITY. Run Marco!" Trump is not the first to urge Rubio to run, though the senator has said such a move is unlikely. The filing deadline is June 24. 

At Hiroshima, Obama Calls For Nuke-Free World
3 hours ago

President Obama called for an end to nuclear weapons Friday during a somber visit to Hiroshima Peace Park in Japan, where the United States dropped the first atomic bomb 71 years ago. "That is the future we can choose,” Obama said. “A future in which Hiroshima and Nagasaki are known not for the bomb of atomic warfare but as the start of our own moral awakening.”

UAW: Time to Unite Behind Hillary
21 hours ago

"It's about time for unity," said UAW President Dennis Williams. "We're endorsing Hillary Clinton. She's gotten 3 million more votes than Bernie, a million more votes than Donald Trump. She's our nominee." He called Sanders "a great friend of the UAW" while saying Trump "does not support the economic security of UAW families." Some 28 percent of UAW members indicated their support for Trump in an internal survey.

Trump Clinches Enough Delegates for the Nomination
23 hours ago

"Donald Trump on Thursday reached the number of delegates needed to clinch the Republican nomination for president, completing an unlikely rise that has upended the political landscape and sets the stage for a bitter fall campaign. Trump was put over the top in the Associated Press delegate count by a small number of the party's unbound delegates who told the AP they would support him at the convention."

Trump/Sanders Debate Before California Primary?
1 days ago