The Supreme Court didn't kill a key underpinning of public sector unionism Monday, but it surely put it on life support. The court's ruling in the Illinois case Harris v. Quinn, which related to the mandatory collection of so-called "fair share" fees from home health care workers whose wages are negotiated by a union whether those workers choose to belong to the union or not, was a relatively narrow one. It turned on the court's decision to draw a line between those aides — who are effectively employed to some extent by individual Medicaid recipients though they are paid the state — and ordinary government workers. But the decision left no doubt that a majority of the court views the key precedent for public sector unions in this regard as suspect on First Amendment grounds. That's unfortunate and, ultimately, a bit nonsensical.
The court's 5-4 majority held in an opinion delivered by Justice Samuel A. Alito that the employment status of home health care workers in Illinois is sufficiently different from that of regular state workers that the "extraordinary" powers granted to unions under the controlling precedent for fair share fees, the 1977 decision Abood v. Detroit Board of Education. For example, the exclusive bargaining agent for those workers, SEIU Healthcare Illinois and Indiana, does not handle grievances for them, as a public sector union typically would for state employees. Thus, the court's majority viewed this case as an attempt to expand the reach of Abood, which it was in no mood to do.
Maryland also allows representation of its home health care workers and the imposition of fair share fees on them. Gov. Martin O'Malley issued a statement decrying the decision, saying the current collective bargaining system has helped the state maintain an adequate and well-trained home health care workforce, though given the court's reliance on the specifics of how those workers are treated under Illinois law, it's not automatic that Maryland's practices will have to change.
The ruling is significant in that home health care workers represent a burgeoning industry that is likely only to grow more as the population ages. But the real headline in this decision is the extent to which it called into question the underpinnings of Abood. The majority all but invited a more squarely aimed challenge at the heart of that precedent based on the notion that all union activity — even garden variety bargaining over wages — is inherently political speech when it takes place in the public sector. Justice Alito writes:
"Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. In the years since Abood, as state and local expenditures on employee wages and benefits have mushroomed, the importance of the difference between bargaining in the public and private sectors has been driven home."
Underlying that argument is the notion, hinted at elsewhere in the opinion, that public sector employers routinely roll over in the face of union demands in a way that private sector employers do not. But that idea is out of touch with the current state of politics in America in which public sector unions are facing strong challenges from elected officials — and not just in Republican controlled states like Wisconsin but even in Democrat-dominated Baltimore City, where Mayor Stephanie Rawlings-Blake has demanded significant concessions from unions. The notion that public sector wages are a matter of public policy while private sector wages are not is also increasingly false, given that current efforts by fast food workers, for example, to unionize and demand higher wages are accompanied by efforts across the nation to raise the minimum wage.
We sympathize with the court's concerns about whether unions properly delineate what costs should be covered by agency fees and which should not; indeed, the difference between a non-member's fees and a member's dues tends to be quite small — in Maryland, the fees are about 85 percent of full dues. Moreover, public sector unions should face a burden to show that the imposition of agency fees allows them to represent workers more effectively than they otherwise could. American Federation of State, County and Municipal Employees officials in Maryland, for example, say the advent of fair share dues — which were approved by 89 percent of covered workers, union and non-union alike, in their most recent contract — have helped the union fund more training on workplace safety and other issues.
The court gives great deference to the notion that public employees who object to agency fees are doing so out of a conviction that government expenditures on things like their own salaries and benefits are too high and very little attention to the more likely explanation that these workers would simply prefer to avoid paying any dues or fees. How else to explain that AFSCME membership has jumped from about 30 percent of covered workers to 60 percent now that the fees are in place? Government employees whose objections are political rather than financial may well exist, but there are ways to address their legitimate concerns without upending a law that, as the four dissenting judges note, governs literally "thousands of contracts involving millions of employees" across the nation.
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