LOCAL 1085

Supreme Court splits on union rights

There are some who predicted that the Supreme Court’s decision in Harris v. Quinn, which was issued on June 30, would seriously hurt public employee unions. That prediction did not materialize.

The decision, which deeply split the Court between conservative and liberal camps, essentially says that personal care aides like the subjects of the case can not be forced to pay representation fees in lieu of union dues. This will make it more difficult to organize and represent such groups, but will not stop such efforts. Ironically, the affected employees are in one of the lowest-paid occupations and therefore have a particular need for union help.

The decision does not affect agency shop arrangements for the vast majority of public employees.

Many states, including New Jersey, allow public employee unions to charge a representation fee (also known as an “agency shop” or “fair-share” fee) to employees who are represented by the union but refuse to join and pay union dues. Such arrangements have existed for many years in both the public and private sectors. Court decisions have made it clear that unions can only charge representation fees for expenses related to collective bargaining, not for political expenses or member-only benefits. CWA and other unions strictly follow these rules.

Nonetheless, some ant-union groups have attacked the use of representation fees in the public sector by arguing that employees might disagree with their union’s bargaining positions and that making them subsidize the union would therefore violate their First Amendment speech rights. In Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), the Supreme Court rejected this argument, pointing out that representation fees contribute to the stability of labor relations and that allowing free riders would be unfair to unions that are required to represent them. The Court concluded that these factors were more compelling than whatever speech rights might be affected.

Despite this, right-wingers have continued to attack agency shop provisions in hopes of weakening the labor movement. Harris v. Quinn is the latest effort to reach the Supreme Court. The decision was written by Justice Alito on behalf of a 5-4 majority.

The case specifically concerned part-time workers known as personal assistants who are employed by the state of Illinois to provide personal care for disabled customers in their own homes. Although these employees are paid and regulated by the state, they are actually hired by individual customers, who decide what services they want. Accordingly, the personal assistants are considered to be jointly employed by the state and the customer. As Justice Alito explained, they are not “full-fledged public employees,” but instead should be considered "partial public employees." Using this seemingly irrelevant distinction, Alito concluded that a sufficient basis did not exist for making the personal assistants pay representation fees. At the same time, Alito made it clear that he disliked the Abood decision and would have overruled it if he could.

Alito’s illogical decision reflects the fact that conservatives on the Supreme Court have aligned themselves with right-wing union-busters and are willing to use almost any argument to chip away at union rights. By contrast, Justice Kagan’s dissenting opinion (joined by Justices Ginsburg, Breyer, and Sotomayor) applies sound logic and legal precedent in recognizing the rights of unionized employees.

See here for a statement by CWA.

The American Prospect also has a very enlightening article here.

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