Will the Supreme Court take its latest chance to weaken unions?

by Laura Clawson

The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice A

In late January, the Supreme Court heard arguments in the latest of a series of cases that have the potential to dramatically weaken unions. In Harris v. Quinn, an Illinois home care worker, backed by a major anti-union organization, is challenging the fair share fees paid by public employees who are not union members but benefit from contracts negotiated by unions. These fees cover the cost of negotiating for and representing workers, but no political activity by the union. The charge in this case is that those fees represent, not work done to improve wages and working conditions for home care workers, but forced speech, making it a First Amendment issue.The Supreme Court previously ruled in favor of fair share fees in a 1977 case, but this is the Roberts Court.

As Ian Millhiser writes:

No one, with the possible exception of disenfranchised voters in North Carolina, has fared worse before the Roberts Court than working men and women. Under Chief Justice John Roberts’ leadership, the Court largely wrote a key protection for victims of sexual or racial harassment out of the law. It made it easier for employers to retaliate against workers who file civil rights complaints. It gave employers an easy way to immunize themselves from class action lawsuits brought by their workers. And, of course, there was that whole unequal pay for equal work case involving Lilly Ledbetter.

As high as the stakes are for public workers, they are also high for senior citizens, disabled people, and those who may someday be elderly or disabled. Harris v. Quinn centers on home care workers, after all. The background is this:

In Illinois 10 years ago, 28,000 home health workers who care for adults with disabilities approved a union. Since then, hourly wages have nearly doubled, the workers now receive regular training, and they have health insurance. The state says as a result, the workforce has been stabilized and professionalized, and the government has saved money by keeping adults with disabilities in their homes.

If you or someone you love needs care, do you want the choices to involve a nursing home or home care paying poverty wages, with the attendant high turnover? State governments don’t pay decent wages out of kindness; unions can’t bargain strong contracts if they don’t have resources. We’re talking about quality of care here, about people’s ability to live in their own homes or hold jobs, as we’ll see below the fold.

Many of the workers’ patients, or customers as they are known, were also on hand Tuesday; among them, Rahnee Patrick, who sat calmly in a wheelchair as the snow pelted her hat and coat.”I had a personal assistant come to me at 5 o’clock in the morning in my house,” Patrick told the crowd gathered on the snowy steps of the Supreme Court. “She rode an hour in the snow, from the North Side of Chicago. Why was she so dedicated? Not because I’m lovely, but because she gets a really good wage, and the wage came from the unions being able to collectively bargain. I can actually go to work, and it’s because of her being able to pay her own bills that I’m able to pay my bills.”

“We can’t afford it and higher wages for home care workers will have to come out of the amount of care disabled and elderly people receive” is a longstanding Republican argument on this one. But that’s in the same class of arguments as “we can’t afford to fix that bridge” and “we can’t afford to educate our nation’s children.” How can we not afford it?We won’t know the Supreme Court’s decision on Harris v. Quinn for a while. The tea leaf readers suggest that this one may hinge on Justice Antonin Scalia’s vote. SCOTUSblog’s Lyle Denniston writes:

In the end, it may not happen, but the demise of public employee unionism was at least on the table for lively discussion in a Supreme Court argument Tuesday morning.  The case of Harris v. Quinn would only spell doom for government workers’ collective action, it appeared, if Justice Antonin Scalia could be persuaded to join in doing it in; there just might be enough other votes. […]What would turn out to be potentially decisive, though, was the Justice Scalia appeared determined to take away from [anti-union lawyer William] Messenger his basic argument that public employee union activity is more about shaping public policy — with implications for the First Amendment — than about the traditional union role of seeking to improve the working conditions of those it represents.

At Reuters, Amanda Becker writes:

The U.S. Supreme Court seemed unlikely on Tuesday to embrace a sweeping argument advanced by a group of Illinois state employees that paying mandatory union dues violates their free-speech rights.

We can hope that’s right, but it’s not necessarily an all-or-nothing game. Even a decision that doesn’t go all the way to abolishing fair share fees could restrict unions’ ability to organize and bargain on behalf of public workers. For now, we wait.

Laura Clawson reports on labor issues for Daily Kos, where this post first appeared.


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