Supreme Court The War on Workers
The Supreme Court Ruling on Harris v. Quinn Is a Blow for Unions
By CYNTHIA ESTLUND and WILLIAM E. FORBATH JULY 2, 2014
UNIONS have never been uncontroversial in American society, but the battles
over labor have grown fiercer in recent years: Witness the fight over publicemployee
unions in Wisconsin, or the 2012 decision by Michigan lawmakers to
join the ranks of “right to work” states.
On Monday a 5-to-4 majority of the Supreme Court fired its own salvo in the
war on unions. Though its decision in Harris v. Quinn was narrow, saying that, in
some cases, unions could not collect fees from one particular class of public
employees who did not want to join, its language suggests that this may be the
court’s first step toward nationalizing the “right to work” gospel by embedding it in
constitutional law.
The petitioners in Harris were several home-care workers who did not want to
join a union, though a majority of their co-workers had voted in favor of joining
one. Under Illinois law, they were still required to contribute their “fair share” to
the costs of representation — a provision, known as an “agency fee,” that is
prohibited in “right to work” states.
The ability of unions to collect an agency fee reflects a constitutional balance
that has governed American labor for some 40 years: Workers can’t be forced to
join a union or contribute to its political and ideological activities, but they can be
required to pay for the cost of the union’s collective bargaining and contractadministration
activities.
The majority in Harris saw things differently. Making workers pay anything to
a union they oppose is in tension with their First Amendment rights — “something
of an anomaly,” in the words of the majority. But the real anomaly lies in
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according dissenters a right to refuse to pay for the union’s services — services that
cost 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 becomes
the exclusive representative, with a duty to fairly represent all of them. That is the
bedrock of our public and private sector labor laws.
Unless everyone is required to pay for those services, individual workers can
easily become “free riders,” taking the benefits of collective representation without
paying their fair share of the costs. Not only dissenters but any employee who
wants to save a buck can “free ride.” The net result may be that the union cannot
afford to represent workers effectively, and everyone suffers.
Consider the home-care providers at issue in Harris. These workers, who are
in one of the fastest-growing and lowest-paid occupations in America, are
generally employed solely by individual customers, even when their wages came
from public funds like Medicaid. Alone, they were stuck with low pay and meager
benefits, and states faced labor shortages and high turnover.
Several years ago Illinois, like several other states, took on the role of joint
employer, along with individual customers, of the care workers. That enabled
them to vote on joining a union. They did so, and as a result nearly doubled their
wages and secured state-funded health insurance, as well as training and safety
provisions.
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 now
workers 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 had
feared, the majority makes clear that such fees now rest on shaky constitutional
ground, at least in the public sector, and are vulnerable to broader attack in the
future.
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 unions
and their antagonists for over 70 years. The antagonists have won many of those
battles, beginning with the state-level “right-to-work” laws that bar any mandatory
union fees.
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The First Amendment framework used by the “right to work” movement —
and now by much of the Supreme Court — to mount this attack is something old
masquerading as something new. Similar arguments were made during the 19th
century, when rising inequalities between individual workers and increasingly
large-scale industrial employers led workers to invent unions and collective
bargaining. For decades, employers found a willing ally in the court: When
Congress or state legislatures passed laws protecting workers’ freedom to organize
and bargain collectively, the court struck them down in the name of “liberty of
contract.”
This changed in the 1930s, when the New Deal court finally conceded the
constitutional bona fides of “industrial democracy” through majority rule. But now
the court’s conservative majority has taken a bold step backward, recasting the
individualist crusade as a battle between compelled speech and the right to refrain
from speech — between individual dissent and collective compulsion. But in
substance it is the same old fight between the right of workers to bargain
collectively and the individual liberty of contract.
Unions are already reeling. At a time when workers are losing economic
ground, we should be looking for ways to strengthen their ability to join with coworkers
and bargain collectively to improve their lot. Instead, the court in Harris
sided with those who seek to weaken it further.
Correction: July 3, 2014
An earlier version of this article mischaracterized Michigan’s 2012 decision to
become a “right to work” state. It was made by state lawmakers, not directly by
voters.
Cynthia Estlund is a professor of law at New York University. William E. Forbath is a professor of law and
history at the University of Texas, Austin.
A version of this op-ed appears in print on July 3, 2014, on page A23 of the New York edition with the
headline: The War on Workers
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