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Unions not dealt the blow feared by many

The Supreme Court dealt a limited blow to organized labor on June 30, 2014 by holding in Harris v. Quinn that home health care workers in Illinois cannot be compelled to financially support a union they don’t wish to join. But the court declined to strike down a decades-old precedent that required many public sector workers to pay union fees. Writing for the 5-to-4 majority, Justice Alito sharply criticized a 1977 precedent, known asAbood, which granted states the right to compel union dues. Alito called that ruling “questionable” and “anomalous,” all but inviting a further challenge in the future. He was joined in his opinion by Chief Justice John Roberts and Justices Thomas, Scalia and Kennedy.

The case was initially brought by eight Illinois workers who provided home care to Medicaid recipients. Several plaintiffs were mothers who, helped by Medicaid, were personal assistants to their disabled children and opposed joining the union and paying union fees.

The plaintiffs asked the court to overrule a 1977 decision (Abood) that declared that government employees could be required to pay fees to unions for representing them and administering their contracts even if they disagreed with the unions’ positions.

Illinois and more than 20 other states require government employees, whether or not they opt to join the union at their workplace, to pay “fair share” fees to finance the union’s activities, like collective bargaining, to prevent freeloading and ensure “labor peace.” But the court in Abood held that workers could not be required to help pay for activities that were purely political, like campaigning for particular candidates.

The National Right to Work Legal Defense Foundation represented the plaintiffs and argued that Illinois was violating the First Amendment by requiring that home-care aides pay compulsory fees to unions even when they disagreed with the unions’ positions. The foundation argued that most of what public-sector unions did was inherently political, partly because they rely on the government to pay their members’ wages and benefits — and they often lobby the government to increase compensation.

Justice Alito wrote that home-care aides who typically work for an ill or disabled person, with Medicaid paying their wages, should be classified as partial public employees and should not be treated the same way as public schoolteachers or police officers who work directly for the government.

Union leaders had feared that the justices might strike down those state laws as unconstitutional. The justices did not go that far. They issued a more narrow ruling that the home health care workers at issue in the case are not “full-fledged public employees” because they are hired and fired by individual patients and work in private homes, though they are paid in part by the state, via Medicaid.

Because they are not truly state employees, the justices decided these workers did not have to pay union dues.

Still, the fairly narrow ruling is a blow to the Service Employees International Union, the American Federation of Teachers and other unions that have organized hundreds of thousands of home health workers in states including Illinois, California and Connecticut. Those workers can now decide whether they want to support the union financially. This can cause discord and schisms in work forces as Labor leaders regard workers who do not pay the fees as freeloaders, since they benefit from the union’s work negotiating contracts but do not pay their fair share to cover the expenses.

Justice Alito rebuffed the argument by the State of Illinois that the Abood decision should be controlling in this case, saying it should apply only in cases involving full-fledged public employees like teachers or firefighters.

The majority opinion showed uneasiness with decades of laws and judicial rulings that required government workers who choose not to join unions to nonetheless pay union fees on the ground that unions’ efforts on collective bargaining and grievances benefit members and nonmembers alike.

In the dissenting opinion, Justice Kagan attacked the majority’s concept of partial public employees, saying that Illinois has sole authority over much of the home-care aides’ terms and conditions of employment.

“Today’s opinion takes the tack of throwing everything against the wall in the hope that something might stick,” she wrote. “A vain hope, as it turns out.”

Anticipating a future attack on Abood, Justice Kagan devoted much of her dissent to defending Abood and its upholding government efforts to prevent free-riding. Saying that the majority underestimated that problem, she wrote, “Union supporters (no less than union detractors) have an economic incentive to free ride.”

The Harris decision seems consistent with a broader trend in American labor: independent contractors and temp agencies are just a few examples of how non-traditional employees tend to be harder to unionize and have fewer rights. In designating home care workers “quasi public” another category of employees who don’t “deserve” the same bargaining powers as “full-fledged” ones are created, Alito has furthered the idea that employee rights depend not on the kind of work one does, but rather on who pays the salary.

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