The Supreme Court’s Harris v. Quinn decision was overshadowed by the Hobby Lobby case, but behind the contraception panic, public unions have been dealing with their own worry.
“[T]he plaintiffs in that case objected on First Amendment grounds to being required to contribute public union dues as a condition of their employment. Because unions rarely thrive unless they are able to compel non-member employees to contribute towards their expenses, the case raises issues affecting the very future of public sector unionism,” wrote Joshua Feinstein for Employers’ Advisor.
In a 5-4 ruling, the justices decided that Illinois home health care workers do not have to contribute a fair share fee to the union that represents them but are not a member of. In the majority opinion, Justice Samuel Alito wrote that the Illinois health workers didn’t comprise a public union and are not qualified for the mandatory fee protections given to public unions under the 1970s Abood v. Detroit Board of Education ruling.
Unions now fear that this will lead to other anti-union rulings or that they will lose even more rights. Labor and employment lawyer Nelson Cary explained in Vorys on Labor that losing mandatory fees is a major blow to unions.
The Court’s questioning of Abood all but invites a challenge by a government worker to an agency fee provision. According to the Bureau of Labor Statistics, there are 7.3 million employees in the public sector who belong to a union. Agency fee statutes exist in a number of different states and surely a significant percentage of these public sector employees have been required to pay money to a union that engages in collective bargaining on their behalf.
In a column in Politico, University of Washington sociology professor Jake Rosenfeld rejects the notion that workers covered under public unions will suddenly stop paying fair share fees if a court allows them to do so.
In the United States, according to research by the economist William Moore, the vast majority of workers covered by collective bargaining contracts in “right-to-work” states pay union dues. Freeriding is rare. Many workers likely feel guilty for receiving benefits for free—and their union-contributing co-workers serve as constant reminders that they are benefitting from others’ labor.
There has also been a wide interpretation over the justices’ feelings toward the Abood decision. Because the Illinois union was not considered a public union, the court avoided overturning or influencing Abood. However, the justices voted along party lines, so there’s some speculation that Alito and the conservative justices would have liked to overturned Abood if given the chance.
Feinstein noted that in the majority opinion, Alito called the basis of Abood “questionable” and that because of the partisan voting split, “[i]n a vigorous dissent, Justice Kagan, devotes many pages defending Abood, emphasizing the absence of any ‘special justification’ under the stare decisis doctrine to permit overturning this established precedent.”
The question has been raised that if a similar public union case was go to before the Supreme Court with it current justices, Abood might not be upheld.
Instead of focusing on what might be, labor negotiation attorney Connie Almond for the California Public Agency Labor & Employment Blog mentions that ruling will not affect most unions and agency shop arrangements.
The Court’s holding narrowly applies to the personal assistants under the Illinois state program. Although the Abood case came under heavy fire, the Court did not overturn it. Consequently, current agency shop arrangements in your collective bargaining agreements remain valid and you should continue to enforce them.
Almond also reminds that this ruling will not impact private sector unions. According to the Bureau of Labor Statistics, 7.3 million private sector workers are in unions compared to 7.2 million in public unions. So, even will all of this anxiety, the majority of union members will remain untouched.