What Harris Means for Workers’ Rights

Moshe Z. Marvit

Public-sector workers in Madison, Wisconsin protest the controversial 2011 law that ended most forms of collective bargaining for government workers in that state.

The Supreme Court issued its long-await­ed opin­ion in Har­ris v. Quinn yes­ter­day, a case that threat­ened to be the worst deci­sion for unions in decades. When the class-action suit was first brought in 2010, at issue was whether union­ized home health­care work­ers who are cov­ered by col­lec­tive bar­gain­ing agree­ments, could be sub­ject to a fair share pro­vi­sion that requires non-union mem­bers to pay for the ben­e­fits they receive from the union. This remained the issue when it arrived at the Sev­enth Cir­cuit Court of Appeals in 2011. How­ev­er, once the case arrived at the Supreme Court in 2013, the Nation­al Right to Work Legal Defense Foun­da­tion raised the stakes and argued that any­thing short of a right-to-work mod­el — under which any employ­ee cov­ered by a col­lec­tive bar­gain­ing agree­ment could forego pay­ing any dues — for all pub­lic employ­ees vio­lat­ed the First Amend­ment. In the Court’s deci­sion, a five-Jus­tice major­i­ty held that fair share pro­vi­sions for home health­care work­ers were uncon­sti­tu­tion­al, and indi­cat­ed repeat­ed­ly that the 1977 case that allows such pro­vi­sions for all pub­lic sec­tor employ­ees is on shaky ground.

Much of the media cov­er­age of Har­ris v. Quinn has called the case a loss for labor, but indi­cat­ed that it could have been much worse. The major­i­ty stopped short of explic­it­ly over­rul­ing Abood v. Detroit Board of Edu­ca­tion—the 1977 case that estab­lished the frame­work for fair share fees in the pub­lic sec­tor — an out­come that could have spelled finan­cial ruin for pub­lic-sec­tor unions. How­ev­er, anti-union forces are already wait­ing in the wings with fur­ther chal­lenges: Sev­er­al low­er court cas­es cur­rent­ly under con­sid­er­a­tion will like­ly con­sti­tute the next round of attacks on the sta­bil­i­ty of both pub­lic and pri­vate sec­tor unions.

In Friedrichs v. Cal­i­for­nia Teach­ers Asso­ci­a­tion, sev­er­al Cal­i­for­nia teach­ers rep­re­sent­ed by the anti-union Cen­ter for Indi­vid­ual Rights have an appeal pend­ing in the Ninth Cir­cuit, where they are chal­leng­ing the state’s agency shop law. Unlike in Har­ris, the teach­ers are not mak­ing an argu­ment that they are not pub­lic employ­ees that are cov­ered by the prece­dent set by Abood. Instead they argue that all fair share (or agency shop — the phras­es are fair­ly inter­change­able) arrange­ments are uncon­sti­tu­tion­al as applied to pub­lic sec­tor employ­ees. Today’s deci­sion in Har­ris, com­bined with ear­li­er deci­sions, have laid the ground­work for the con­ser­v­a­tive jus­tices to per­form a full recon­sid­er­a­tion of right to work in the pub­lic sector.

In the pri­vate sec­tor con­text, the Nation­al Right to Work Legal Defense Foun­da­tion have a case in Texas chal­leng­ing union secu­ri­ty claus­es under the Rail­way Labor Act, which cov­ers rail­way and air­line work­ers. In Ser­na v. Trans­port Work­ers Union of Amer­i­ca, sev­er­al dis­si­dent air­line employ­ees argue that the require­ment that work­ers opt-out of union mem­ber­ship should be replaced with an opt-in pro­ce­dure. In the alter­na­tive, they argue that the require­ment that work­ers who opt-out of mem­ber­ship must renew their objec­tions each year be held uncon­sti­tu­tion­al. Though these issues may seem tech­ni­cal, they place at risk the way that work­ers finance unions.

In Knox v. SEIU, Jus­tice Ali­to, writ­ing for the major­i­ty, invit­ed chal­lenges to the agency shop, writ­ing, Our cas­es to date have tol­er­at­ed this impinge­ment and we do not revis­it today whether the court’s for­mer cas­es have giv­en ade­quate recog­ni­tion to the crit­i­cal First Amend­ment rights at stake.” Many saw Har­ris v. Quinn as a response to that invi­ta­tion. But in Har­ris, Jus­tice Ali­to, again writ­ing for the major­i­ty, made clear that since home health­care work­ers were not full-fledged” pub­lic employ­ees, the Court did not need to con­sid­er whether Abood should be over­ruled. Instead, in Har­ris, the major­i­ty engaged in (the words of the dis­sent­ing Jus­tices), gra­tu­itous dic­ta cri­tiquing Aboods foun­da­tions.” It’s hard to see this as any­thing oth­er than anoth­er invi­ta­tion to strike down fair share arrange­ments, and anoth­er step toward estab­lish­ing a judi­cial­ly cre­at­ed right-to-work mod­el for all pub­lic-sec­tor employees.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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