Law and Politics

Can Unions Overcome the Supreme Court’s Latest?

July 21, 2014
By Steven Wishnia

The Supreme Court’s June 30 decision in Harris v. Quinn—which held that home health-care aides hired by individuals do not have to pay “fair-share fees” to the unions that represent them—attacks labor in two ways. First, it undermines recent efforts to organize home health-care aides, who work in one of the nation’s fastest-growing and lowest-paying occupations. Second, it opens the door to reversing the 1977 decision that protects the union shop for public employees.

That decision said public-employee unions can require nonmembers to pay fees to cover the cost of representing them. To evade it, the Court created a category called “partial public employees.” This affects several states, among them Illinois, Minnesota, and Massachusetts, which have defined home health-care aides—who are hired by individuals but paid by the state out of Medicaid funds—as public employees who can be members of unions, instead of as independent contractors or employees of private agencies. (Dissenting Justice Elena Kagan called the “partial public employees” definition nonsense, arguing that the workers are paid by the government and are hired under state-set criteria, and there are plenty of labor-law precedents involving joint employers.)

Personal-care and home health aides are the fastest-growing occupation in the nation. The Bureau of Labor Statistics projected in 2012 that the number of jobs will increase by more than 1 million by 2022, to more than 3 million; the only occupation growing at a faster rate is much smaller. These jobs are also among the lowest-paying, with 2012 median salaries below $21,000 a year.

That means the field is ripe for organizing. The SEIU now represents about 400,000 home-care workers, one-fifth of its membership, and AFSCME represents 200,000 home health and child-care workers. Many of these joined the union in the last 10 years. Since unionizing, home health aides have won raises that nearly doubled their pay, to $13 an hour in Illinois and $13.38 in Massachusetts.

But the Court’s majority endorsed one of the anti-labor forces’ most insidious arguments, that “forced unionization” violates workers’ free speech, their right not to support organizations they disagree with. Current law is well established. In its 1977 Abood v. Detroit Board of Education decision, the Court held that if all workers benefit from being represented by a union, they all have to pay their share of that representation, but that nonmembers don’t have to pay for explicitly political union activity such as contributions to candidates.

Justice Samuel Alito, who wrote the decision, openly urged the Court to reverse Abood. He contended that any union activity on behalf of public employees is inherently political, because it affects public policy. If home health aides get a raise, he wrote, that’s a political issue, because it could increase spending on Medicaid. If unions want decent pensions for their members, that’s political, because spending on pensions has become a major issue in states such as Illinois and New Jersey.

This would set up an impossible standard for public-employee unions, as it defines any form of representation as political activity that nonmembers shouldn’t have to pay for. Alito also questioned whether unions really needed support from everyone in a workplace to be effective.

Apparently Alito was unable to persuade any justices beyond the four in the right-wing bloc to support banning the union shop for public workers. But even if that door remains closed, the decision is still damaging. It undermines organizing in a fast-growing field where unions have made significant gains recently—among workers who desperately need the pay, rights, and security that unions bring.

It adds one more obstacle to the already difficult task of organizing and sustaining unions. In California, almost half of the 170,000 home-care workers represented by SEIU are not full members, and thus would not have to pay fees to the union if the Court decision were applied there. Union membership declined by 18% in Indiana after it banned the union shop in 2011. Wisconsin’s AFSCME state council lost more than half its membership after Gov. Scott Walker gutted public workers’ collective-bargaining rights and eliminated dues checkoff that year.

Both SEIU and AFSCME reacted to the Supreme Court decision with defiance, however, and both unions have been campaigning to get fee-payers to join as full members. AFSCME President Lee Saunders announced July 14 that the union had gained 92,000 new members this year, including more than 20,000 home-care workers and almost twice the “50,000 Stronger” goal it set in January. And in Minnesota, which enacted a law last year that let Medicaid-funded home-care workers unionize, the SEIU has filed a petition for the 26,000 workers covered to vote on whether to join.

It filed the petition on July 8—barely a week after the Court’s decision. 

July 18, 2014

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