By Ryan Blodgett
Jan. 24, 2014
This Tuesday, the Supreme Court heard oral arguments in Harris v. Quinn, a First Amendment challenge regarding labor union dues. After oral arguments, it remains to be seen how the Court will rule, but a decision deviating from existing precedent could practically destroy the ability of government workers to collectively bargain.
Unions exist to allow workers to achieve and maintain better working conditions through collective bargaining. Employers tend to be more economically powerful than their employees and have bargaining advantages over individuals that, in some instances, have lead to significant problems regarding working conditions and how workers are treated. In a truly free and perfectly competitive marketplace, unions would be unnecessary and only extract value and prevent otherwise fair and mutually agreeable employment transactions. However, such a market system has yet to occur and many things stand in the way. Monopolies and oligopolies exist. Some businesses use their economic power to influence policy choices that give them an unfair advantage. Some companies use information asymmetries to artificially lower the market wage.
The challenge heard in Harris v. Quinn has the Court reevaluating the 1977 decision of Abood v. Detroit Board of Education. In Abood, a group of public school teachers in Detroit sought to overturn the requirement that they pay union dues. Explaining that they disagreed with the ideological activities of the union as well as collective bargaining in the public sector, the group argued that requiring them to pay dues violated their First Amendment rights. The requirement that all workers in a certain job or workplace pay union dues is often controversial, as it requires anyone wanting to hold such a position to financially support the relevant union, even if they would prefer not to for any reason, whether that be economic or political.
However, much of union activity concerns providing benefits that, for the most part, cannot be provided to members of the union and at the same time, not provided to nonmembers. Chiefly among these benefits is workplace safety. Further, while some benefits can be provided or denied based on union membership, it is generally cheaper and more efficient to provide benefits that are, more or less, standardized within a workplace. Because the benefits provided by unions are difficult to apply only to members, individuals have an incentive to free ride by not paying their union dues. If an individual employee gets the same or similar benefits without joining the union, they are better off saving their money. However, because many employees have that same motivation, if a union is not able to require employees in a workplace to pay dues, it will be difficult or impossible for it to function.
For the government employees in Abood, the Court struck a balance. It did allow the union to collect dues from the objecting teachers, but it required that those dues not be used to ideological or political purposes. Instead, those dues could only be used for “collective bargaining, contract administration, and grievance adjustment purposes.”
The plaintiffs in Harris v. Quinn now urge the Supreme Court to overrule the Abood decision and hold that public employees cannot be required to pay union dues as a condition of employment. These plaintiffs are made up of home care care workers who assist disabled adults and are paid through Medicaid. About a dozen states have authorized these workers to join unions and bargain as state employees. More than 20,000 of these workers in Illinois voted to organize and joined the Service Employees International Union, one of the largest unions in the U.S. The some would say ironically named National Right to Work Foundation, an anti-union advocacy group, sued the governor of Illinois and the SEIU on behalf of a group of workers who objected to the requirement that they pay union dues.
During oral arguments on Tuesday, as perhaps could be expected, the four liberal members of the Court seemed to strongly support the union’s arguments. On the other side, four of the five conservative members of the Court appeared ready and willing to protect the First Amendment association rights of the Plaintiffs, or strike a serious blow for the american worker, or both, depending on your perspective.
In a rare turn of events, oral arguments made it seem like Justice Scalia may be the swing vote. The LA Times reports that Benjamin Sachs, a labor law expert and professor at Harvard Law School, said it would be “pretty radical” for the Supreme Court to strike down “fair share” fees that public-sector unions rely upon. Even with that being the case, it seems like all that will stand between public-sector unions and the Supreme Court striking down those fees is an unlikely alliance between Justice Scalia, the conservative textualist, and the Court’s four liberal members. Expect a ruling sometime in the next five months or so.