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Under-the-Radar Supreme Court Case Could Make 'Right to Work' Law of the Land

In what has been described as the “sleeper case of the year,” a ruling by the Supreme Court in Harris v. Quinn could make “Right-to-Work” the national standard. The court and its conservative majority have been inching closer and closer to this outcome and 2012′s Knox v. SEIU case showed that the current court may soon overturn the precedent set in Abood v. Detroit Board of Education in 1977. The ruling in Abood is what allows taxpayer-funded homecare workers to unionize as public employees.  

In a recent piece for Salon, writer Josh Eidelson interviews Harvard Law School professor Benjamin Sachs about the case and its ramifications. Sachs provides background on what is at stake in Harris v. Quinn:

I can imagine a range of things that could happen. The court could just affirm the Court of Appeals decision, in which case the law would essentially stay where it is today. I think that’s less likely than the other possible scenarios.

Assuming that the state of Illinois loses, the unions lose, you could imagine a number of things happening. I think the most limited ruling would say something like this: Abood is still good law — with respect to let’s call them “traditional public employees,” it is constitutional for a state to require the employees to pay dues to a union for the union’s non-political activities. But the court would go on to say these home-care workers are not traditional public employees, they don’t look like traditional public employees, they’re really employed by these private individuals in whose homes they work, and so even though we’re leaving the basic law of union dues as it is, we’re saying it doesn’t cover home-care workers of this kind. That would be a devastating ruling for unions in the home-care sector, devastating in the sense that it would upend their ability to collect dues. But it would leave untouched dues-collection practices for the vast majority of public sector employees.

The third possibility is the one I think that is on everyone’s mind, and in some ways probably the most likely outcome of the case. That ruling would say Abood is wrong, we overturn it: It is unconstitutional in the public sector to require a public employee to pay dues to the union, even when those dues are used only for collective bargaining purposes.

That ruling would convert all public sector employment into a kind of right-to-work regime in which no mandatory dues can be required even though the union is required to represent everybody in the bargaining unit. That would be an incredibly sweeping opinion, with dramatic consequences for public sector unions all over the country, including teachers.

This is not just a kind of labor law, labor union issue. Public sector unions are incredibly important to our politics. They are a primary supporter of the Democratic Party. If you make unconstitutional the dues arrangements in the public sector, you’re really going to — I don’t want to say “cripple,” but hinder dramatically the ability of unions to participate as vibrant political actors.

There’s another thing the court could do. This case all along has been about “mandatory dues.” But in the briefing to the Supreme Court, the Right to Work Committee has now expanded what they’re asking for. So they’re now asking not just that mandatory dues be unconstitutional, but that “exclusive representation” itself be unconstitutional. If that argument is considered by the court and wins, the only kind of unionism you could have in the public sector is “minority” or “members-only” unionism, so that the only people that would be covered by a collective bargaining agreement and represented by the union are those who affirmatively desire to become members.

Harris v. Quinn was brought to the Supreme Court with the assistance of the National Right to Work Foundation. In the interview, Eidelson asks Sachs about the anti-union group’s argument that the current setup is “forcing home-care providers into union ranks.”  According to Sachs:

Number one: There’s never a union unless the majority of the employees themselves affirmatively desire a union. What any state can do, what any private sector employer can do, is give employees a vote about whether or not they want a union — and then the principle of majority rule applies.

Number two: Even under majority rule, nobody can be forced to become a member of a union anywhere in the United States. What people can be required to do is to pay for representational services that they’re provided. The union has to represent everybody who’s in the bargaining unit, even the people who voted no. Along with that obligation on the union comes a requirement that everybody pay dues for the representational activity that the union is statutorily obliged to undertake.

To characterize that as people “being forced into union ranks” seems to miss some important nuance.

Read the full interview here and learn more about Harris v. Quinn via the Oyez Project at IIT Chicago-Kent College of Law.

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Chaz Bolte
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