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.

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