Will the Supreme Court undermine public-sector labor rights?

Before late June, the Supreme Court will rule on Harris v. Quinn, perhaps the most important labor case to come before it in several decades. If the court sides with the extremist National Right to Work Legal Defense Foundation (NRTW), which appealed the case after losing before the Seventh Circuit and lower courts, it could inflict a major blow on unions that represent public employees. National Right to Work is representing three Illinois home care aides — out of about 20,000 union-represented workers — who provide Medicaid-reimbursed services to disabled patients. It argues that “forcing” the aides to accept the union as their collective bargaining agent (a clear majority chose unionization in 2003) is unconstitutional and that they are not state employees but employees of the Medicaid recipients they work for.

Several critical issues are at stake in Harris v. Quinn.

{mosads}First, are home care aides correctly defined as public employees for the purposes of collective bargaining? There seems little doubt that the Seventh Circuit court was correct in ruling that they are employees. In Illinois as elsewhere, the state controls practically every aspect of the jobs of home care aides: It sets qualifications, it determines the tasks that aides perform and the amount of time for each task, and it can refuse payments to aides who do not meet the state’s standards, which is akin to the power of termination.

Second, can the union require non-members to pay “agency fees” to cover representation costs? The Seventh Circuit properly ruled that the union could negotiate a fair-share contract to cover the costs of representing them. The Supreme Court has consistently ruled that the state, acting as a public employer, is permitted to make fair-share agreements, just the way that other public and private employers routinely do, and these rulings are consistent with the court’s First Amendment jurisprudence over several decades. Thus, unions may constitutionally charge dissenting employees for the costs of bargaining agent duties.

Third, is bargaining on behalf of home care aides inherently different? National Right to Work claims that bargaining on behalf of home care aides should be considered petitioning of government. Thus, even if they are employees, bargaining on their behalf is political in nature and workers should not be required to contribute financially to it. In reality, collective bargaining for these workers is no different from bargaining for other public employees. The union “asks for a wage rate and it asks for various benefits,” as Supreme Court Justice Ruth Ginsburg pointed out, just like in collective bargaining for other occupations. Although the aides’ compensation comes through Medicaid, the program does not set their hourly rates. In its role of public employer, the state is dealing with its employees over the terms and conditions of their employment — similar to numerous other bargaining arrangements.

Finally, if the court were to side with NRTW’s extremist position and rule against the right to charge non-members agency fees, does that ruling apply only to home care aides or also to every public-sector worker in the country? National Right to Work has argued that the First Amendment bars public-sector unions from collecting agency fees from dissenters, and thus all public-sector agency agreements are unconstitutional. This argument is without basis in reality. States can already pass right-to-work laws prohibiting employers from making fair-share agreements — 24 states have done so since 1947 — but these are policy choices, not something that is constitutionally compelled. However, if the court were to agree with NRTW, it would make right-to-work the law of the land in the public sector by judicial fiat, thereby dealing a major setback to all unions that represent public employees.

Let’s be clear: This case has nothing to do with defending the rights of individual workers, as NRTW would have us believe. Rather, it is about a far-right organization attempting to destroy the collective rights of American workers. National Right to Work states that it is “wrong” that home care aides should be forced into unions and required to pay union dues. It fails to mention that, even in the states that allow them to bargain, they can only form unions and engage in bargaining when a majority of workers choose this — just like Illinois home care aides did when they joined the Service Employees International Union in 2003. And it fails to mention that like their private sector counterparts, public-sector workers who are non-member agency-fee payers already enjoy a well-established legal right to opt out of paying for union political activities.

The Illinois experience with bargaining with home care aides demonstrates that it is good public policy that transforms the lives of vulnerable workers.

States have compelling reasons to bargain with home care aides. They have a strong interest in maintaining labor peace, and need to recruit and retain more trained individuals in order to provide quality services for those who require them. Illinois made a judgment, which has proven correct, that bargaining with the democratically chosen representatives of the aides would help it achieve its service delivery goals. Under its negotiated agreement, the state has improved training, reduced turnover, and increased control over the quality of its providers. It has tackled serious and longstanding problems of low morale, recruitment and retention. But decisions to grant bargaining rights to home care aides are also policy choices, which can be reversed. Thus, in 2011 and 2012, Republican governors in Maine, Michigan and Wisconsin stripped tens of thousands of home care aides of this previously established right.

Unionization and collective bargaining has transformed the lives of home care aides. Before bargaining, Illinois aides received $7 per hour and no benefits. This year they will receive $13 per hour plus benefits. According to the National Women’s Law Center, unionized home care aides enjoy improved and more regular compensation and benefits, more efficient payment procedures, a grievance process, greater access to training, and a stronger voice in rulemaking. In every state that has granted bargaining rights, standards for home care aides have improved. In its ideological crusade to destroy labor rights, however, NRTW would happily see these most vulnerable workers forced back into poverty and it would reverse the improvements in home care services provided to elderly and disabled patients.

The majority on this Supreme Court is no friend of workers’ rights. Indeed, the anti-union position has often been the only consistent theme in its rulings in labor cases. Nevertheless, even for the court’s conservative members, a sweeping ruling against agency fee agreements in the public sector in Harris v. Quinn would be an extreme and blatantly political act.

Logan is a professor and the director of the Labor and Employment Studies program at San Francisco State University.