Bill Knight column for Mon., Tues. or Wed., Feb. 17, 18 or 19
In a case heard last month, lawyers argued about whether Illinois state government’s policy of permitting a majority of home-care workers to unionize violates anti-union individuals’ First Amendment rights. Since 1977, the high court has upheld such situations’ mandatory fees to pay for bargaining and enforcing contracts benefiting covered workers. But some justices seemed open to pronouncing the practice unconstitutional.
Justices Samuel Alito and Anthony Kennedy questioned how the government can force unwilling workers to pay such fees, known as “fair-share” fees. (One wonders how consistently they’d apply their notion of getting something for nothing to other situations. Should pedestrians and bicyclists be coerced into paying for Interstate highways? Should property owners with no children be forced to pay for public schools? Should conscientious objectors unwilling to pay taxes going to the military face consequences?
The anti-union National Right to Work Committee is financing the “Harris vs. Quinn” lawsuit, which pits Angela Harris and eight anti-union home-care workers in Illinois against the state’s recognition of unions and the obligation to share the costs of achieving workplace gains.
Harris and the Right-To-Work (“For Less”) lobby say that the law is unconstitutional because it lets the state, as the employer, deduct from workers’ paychecks fees to pay for union representation costs (not political spending).
The constitutionality claim is hogwash, replied the American Federation of State, County and Municipal Employees and the Service Employees International Union, who sought to represent the workers. Their brief said, “The First Amendment permits the government to require both public-sector and private-sector employees to pay a service fee to the local union that acts as their exclusive bargaining agent.” (Already, employees who benefit from union contracts but choose not to be members don’t have to pay full union dues, just fair-share, or “agency fees.”)
Illinois funds in-home care for adults with disabilities, and about 10 years ago, the state decided that more than 20,000 in-home workers were state employees, free to join a union.
The state and the two unions won the case at lower courts because SEIU won the representation vote among the 4,500 disability rehab workers, but both it and AFSCME lost the election among the 20,000 home health workers (“no union” got the most votes).
Representing Illinois and other states with similar policies, attorney Paul Smith reminded the justices that for almost four decades, the court has let states decide whether unionization promotes efficient operations. William Messenger – lawyer for the right-wing Right To Work Legal Defense Fund – made clear the group’s real agenda: to wipe out the mechanism for unions to collect fees and cover their costs.
Moderate Justice Stephen Breyer asked the anti-union lawyer, “I suspect you cannot answer my question without accepting one of the following three propositions. First, unlike every other employee, government employees have no right to organize. Or, second, they have a right to organize, but they cannot bargain about wages, working conditions and hours, unlike any others. Or, third, the courts are going to fashion, using the First Amendment as their weapon, a new special labor law for government employees.
“I'd remind you we have some experience on that in the 1930s, where courts tried to do something analogous,” he added.
Liberal Justice Elena Kagan said the RTW attorney’s claim “is a radical argument. It would radically restructure the way workplaces are run. There must be thousands and thousands of contracts across the United States with fair-share provisions. Do you doubt that these were core central provisions in the making of these contracts? That if these kinds of provisions were prohibited, the agreements would look fundamentally different in many ways?”
Even Justice Antonin Scalia, one of the more conservative jurists, implied that that he wasn’t ready to dump precedent.
“Our cases say you can be compelled not be to a free rider,” he said, because all the employees benefit if the union negotiates higher wages, and everyone can be required to pay for “bargaining that benefits you as well as everybody else.
“You're essentially destroying not just the shop,” Scalia continued, “but you're destroying the ability of the union to get money.”
A ruling is expected in late spring or early summer.
[PICTURED: Satirical 'Free Rider' card from files.]