The Supreme Court Ruling on Harris v. Quinn Is a Blow for Unions
By CYNTHIA ESTLUND and WILLIAM E. FORBATH
JULY 2, 2014
UNIONS have never been uncontroversial in American society, but the battles over labor have grown fiercer in recent years: Witness the fight over public-employee unions in Wisconsin, or the 2012 decision by Michigan lawmakers to join the ranks of “right to work” states.
On Monday a 5-to-4 majority of the Supreme Court fired its own salvo in the war on unions. Though its decision in Harris v. Quinn was narrow, saying that, in some cases, unions could not collect fees from one particular class of public employees who did not want to join, its language suggests that this may be the court’s first step toward nationalizing the “right to work” gospel by embedding it in constitutional law.
The petitioners in Harris were several home-care workers who did not want to join a union, though a majority of their co-workers had voted in favor of joining one. Under Illinois law, they were still required to contribute their “fair share” to the costs of representation — a provision, known as an “agency fee,” that is prohibited in “right to work” states.
The ability of unions to collect an agency fee reflects a constitutional balance that has governed American labor for some 40 years: Workers can’t be forced to join a union or contribute to its political and ideological activities, but they can be required to pay for the cost of the union’s collective bargaining and contract-administration activities.
The majority in Harris saw things differently. Making workers pay anything to a union they oppose is in tension with their First Amendment rights — “something of an anomaly,” in the words of the majority. But the real anomaly lies in according dissenters a right to refuse to pay for the union’s services — services that cost money to deliver, and that put money in the pockets of all employees.
Once selected by a majority of workers in a bargaining unit, a union becomes the exclusive representative, with a duty to fairly represent all of them. That is the bedrock of our public and private sector labor laws.
Unless everyone is required to pay for those services, individual workers can easily become “free riders,” taking the benefits of collective representation without paying their fair share of the costs. Not only dissenters but any employee who wants to save a buck can “free ride.” The net result may be that the union cannot afford to represent workers effectively, and everyone suffers.
Consider the home-care providers at issue in Harris. These workers, who are in one of the fastest-growing and lowest-paid occupations in America, are generally employed solely by individual customers, even when their wages came from public funds like Medicaid. Alone, they were stuck with low pay and meager benefits, and states faced labor shortages and high turnover.
Several years ago Illinois, like several other states, took on the role of joint employer, along with individual customers, of the care workers. That enabled them to vote on joining a union. They did so, and as a result nearly doubled their wages and secured state-funded health insurance, as well as training and safety provisions.
All of Illinois’s in-home care providers benefit from union representation. Until Monday, all were required to pay a modest fee for those services. But now workers can “free ride.”
While a majority declined to strike down agency-fee arrangements for “full-fledged” public employees, as the petitioners had requested, and as unions had feared, the majority makes clear that such fees now rest on shaky constitutional ground, at least in the public sector, and are vulnerable to broader attack in the future.
The ability of unions to survive rests on whether they solve the “free rider” problem. That is why mandatory fees have been a critical battleground for unions and their antagonists for over 70 years. The antagonists have won many of those battles, beginning with the state-level “right-to-work” laws that bar any mandatory union fees.
The First Amendment framework used by the “right to work” movement — and now by much of the Supreme Court — to mount this attack is something old masquerading as something new. Similar arguments were made during the 19th century, when rising inequalities between individual workers and increasingly large-scale industrial employers led workers to invent unions and collective bargaining. For decades, employers found a willing ally in the court: When Congress or state legislatures passed laws protecting workers’ freedom to organize and bargain collectively, the court struck them down in the name of “liberty of contract.”
This changed in the 1930s, when the New Deal court finally conceded the constitutional bona fides of “industrial democracy” through majority rule. But now the court’s conservative majority has taken a bold step backward, recasting the individualist crusade as a battle between compelled speech and the right to refrain from speech — between individual dissent and collective compulsion. But in substance it is the same old fight between the right of workers to bargain collectively and the individual liberty of contract.
Unions are already reeling. At a time when workers are losing economic ground, we should be looking for ways to strengthen their ability to join with co-workers and bargain collectively to improve their lot. Instead, the court in Harris sided with those who seek to weaken it further.
Correction: July 7, 2014
An Op-Ed article on Thursday about labor unions mischaracterized Michigan’s 2012 decision to become a “right to work” state. It was made by state lawmakers, not directly by voters.