Supreme Court The War on Workers

Supreme Court The War on WorkersThe Supreme Court Ruling on Harris v. Quinn Is a Blow for UnionsBy CYNTHIA ESTLUND and WILLIAM E. FORBATH JULY 2, 2015UNIONS have never been uncontroversial in American society, but the battlesover labor have grown fiercer in recent years: Witness the fight over publicemployeeunions in Wisconsin, or the 2012 decision by Michigan lawmakers tojoin the ranks of ?right to work? states.On Monday a 5-to-4 majority of the Supreme Court fired its own salvo in thewar on unions. Though its decision in Harris v. Quinn was narrow, saying that, insome cases, unions could not collect fees from one particular class of publicemployees who did not want to join, its language suggests that this may be thecourt?s first step toward nationalizing the ?right to work? gospel by embedding it inconstitutional law.The petitioners in Harris were several home-care workers who did not want tojoin a union, though a majority of their co-workers had voted in favor of joiningone. Under Illinois law, they were still required to contribute their ?fair share? tothe costs of representation ? a provision, known as an ?agency fee,? that isprohibited in ?right to work? states.The ability of unions to collect an agency fee reflects a constitutional balancethat has governed American labor for some 40 years: Workers can?t be forced tojoin a union or contribute to its political and ideological activities, but they can berequired to pay for the cost of the union?s collective bargaining and contractadministrationactivities.The majority in Harris saw things differently. Making workers pay anything toa union they oppose is in tension with their First Amendment rights ? ?somethingof an anomaly,? in the words of the majority. But the real anomaly lies inThe Supreme Court Ruling on Harris v. Quinn Is a Blow for Unions ? Page 1 of 3 7/6/2014according dissenters a right to refuse to pay for the union?s services ? services thatcost money to deliver, and that put money in the pockets of all employees.Once selected by a majority of workers in a bargaining unit, a union becomesthe exclusive representative, with a duty to fairly represent all of them. That is thebedrock of our public and private sector labor laws.Unless everyone is required to pay for those services, individual workers caneasily become ?free riders,? taking the benefits of collective representation withoutpaying their fair share of the costs. Not only dissenters but any employee whowants to save a buck can ?free ride.? The net result may be that the union cannotafford to represent workers effectively, and everyone suffers.Consider the home-care providers at issue in Harris. These workers, who arein one of the fastest-growing and lowest-paid occupations in America, aregenerally employed solely by individual customers, even when their wages camefrom public funds like Medicaid. Alone, they were stuck with low pay and meagerbenefits, and states faced labor shortages and high turnover.Several years ago Illinois, like several other states, took on the role of jointemployer, along with individual customers, of the care workers. That enabledthem to vote on joining a union. They did so, and as a result nearly doubled theirwages and secured state-funded health insurance, as well as training and safetyprovisions.All of Illinois?s in-home care providers benefit from union representation.Until Monday, all were required to pay a modest fee for those services. But nowworkers can ?free ride.?While a majority declined to strike down agency-fee arrangements for ?fullfledged?public employees, as the petitioners had requested, and as unions hadfeared, the majority makes clear that such fees now rest on shaky constitutionalground, at least in the public sector, and are vulnerable to broader attack in thefuture.The ability of unions to survive rests on whether they solve the ?free rider?problem. That is why mandatory fees have been a critical battleground for unionsand their antagonists for over 70 years. The antagonists have won many of thosebattles, beginning with the state-level ?right-to-work? laws that bar any mandatoryunion fees.The Supreme Court Ruling on Harris v. Quinn Is a Blow for Unions ? Page 2 of 3 7/6/2014The First Amendment framework used by the ?right to work? movement ?and now by much of the Supreme Court ? to mount this attack is something oldmasquerading as something new. Similar arguments were made during the 19thcentury, when rising inequalities between individual workers and increasinglylarge-scale industrial employers led workers to invent unions and collectivebargaining. For decades, employers found a willing ally in the court: WhenCongress or state legislatures passed laws protecting workers? freedom to organizeand bargain collectively, the court struck them down in the name of ?liberty ofcontract.?This changed in the 1930s, when the New Deal court finally conceded theconstitutional bona fides of ?industrial democracy? through majority rule. But nowthe court?s conservative majority has taken a bold step backward, recasting theindividualist crusade as a battle between compelled speech and the right to refrainfrom speech ? between individual dissent and collective compulsion. But insubstance it is the same old fight between the right of workers to bargaincollectively and the individual liberty of contract.Unions are already reeling. At a time when workers are losing economicground, we should be looking for ways to strengthen their ability to join with coworkersand bargain collectively to improve their lot. Instead, the court in Harrissided with those who seek to weaken it further.Correction: July 3, 2015An earlier version of this article mischaracterized Michigan?s 2012 decision tobecome a ?right to work? state. It was made by state lawmakers, not directly byvoters.Cynthia Estlund is a professor of law at New York University. William E. Forbath is a professor of law andhistory at the University of Texas, Austin.A version of this op-ed appears in print on July 3, 2015, on page A23 of the New York edition with theheadline: The War on Workers!

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