On Monday, in yet another contentious 5-4 decision, the Roberts Court weakened even further the already paltry rights of American workers. In Harris v. Quinn, the court’s conservative majority undermined the ability of home care workers to have an effective voice on their working conditions. As a result, up to 400,000 home health aides who had been lifted out of poverty by collective bargaining may be plunged back into it.
The controversial lawsuit was brought by the National Right to Work Foundation (NRTWF), an organization that purports to represent workers, but in reality works only for the economic and political benefit of the country’s richest citizens and most powerful corporations. The basic issue was whether unions could require non-members, whom unions are legally required to represent in workplaces where the majority of employees are members, to pay a “fair share” fee toward the cost of those representation services.
{mosads}Consistent with decades of jurisprudence, the lower courts and the Seventh Circuit agreed that states and unions could make fair-share agreements in non-right-to-work states. They ruled that home care aids are properly considered public employees — the state controls most important aspects of their jobs — that collective bargaining for home care aides is similar to bargaining for other groups of public employees — unions bargain with the state over their wages and conditions — and that requiring non-members to pay fair-share fees towards the cost of representing them does not violate their constitutional right to free speech.
Ironically, labor rights supporters were depending on Justice Antonin Scalia, one of the court’s most conservative members, to prevent it from striking a potential deathblow against the rights of public-sector workers. This unusual source of optimism was well-founded. At oral arguments, Scalia’s skepticism was clear and it appeared that conservatives lacked five votes in support of NRTWF’s position that fair-share agreements violate the free-speech rights of non-member employees in all public-sector collective bargaining arrangements.
Scalia had rejected this argument in the past, and much to Justice John Roberts’s irritation, was not buying the same dog-eared, right-wing talking points this time round. Thus, while Justices Samuel Alito and Anthony Kennedy supported outlawing fair-share agreements — and Justice Clarence Thomas said nothing, as usual, but everyone assumed that he did also — Roberts searched for a narrower basis for ruling against the union, short of a reversal of the Supreme Court’s 1977 Abood decision, which upheld the constitutionality of fair share in the public sector.
When it emerged that Alito would author the majority opinion, workers’ advocates feared the worst. In the end, they got a terrible decision limited in scope. The court outlawed fair-share agreements for Illinois home care aides but did not prohibit fair share throughout the public sector, as NRTWF had argued for. Alito apparently believes that home care aides are “partial” and not “fully-fledged public employees” — a distinction he pulls out of thin air, while ignoring the fact that it is only through union representation that these workers have escaped casual employment, poverty wages and substandard conditions. Alito’s arguments provide another near-perfect example of the conservative majority’s complete disassociation from any real-world reality.
The decision is deeply reactionary in other ways, too. Alito labeled Abood “questionable,” and took several other potshots at the 40-year precedent, and stated that if it were to extend fair-share agreements to home care aides, the court would run the risk of violating the principle that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
However, despite misrepresentations by anti-union advocacy groups, this case had nothing whatsoever to do with “forced” political speech. In both the public and private sectors, non-member employees who pay fair-share fees enjoy a well-established and longstanding right to opt out of paying for a union’s political activities. Rather, this case was simply a partisan effort by anti-union forces to destroy the collective rights of public employees.
The court’s decision may have a devastating impact on the lives of hundreds of thousands of home care workers in Illinois and other states who have chosen union representation. Before they won collective bargaining, these overwhelmingly minority women workers earned approximately $7 an hour and endured substandard working conditions. With collective bargaining, their lives have been transformed: They will earn $13 per hour by the end of the year, are treated with dignity and respect and are no longer largely dependent on public assistance. Under collective bargaining, moreover, the state of Illinois has both significantly improved the quality of home care and saved millions of dollars in taxpayers’ money. The entire country has a whopping 3 million low-wage home care workers, most of whom do not enjoy the advantages that unionization had provided to the Illinois workers.
Despite its limited nature, this decision provides another example of the enormous political power of the far-right lobby. The NRTWF already has other cases in the works that seek to destroy the rights of all public-sector workers, not just those of home care aides. It is one of the most remarkable scams in recent American history that this assault on workers’ rights has been carried out in the name of individual liberty. If this onslaught on workers’ rights by the top 1 percent and their proxies in Congress and the courts continues, the last remaining middle-class worker will need to turn off the lights on the way out.
Logan is professor and director of labor and employment studies at San Francisco State University.