Harris v. Quinn: the Beginning of the End of Public Sector Unions?

Last summer, the Supreme Court issued a decision in favor of the plaintiff in Harris v. Quinn, a case that originated in Illinois but could have massive implications for unions across the nation. This article in the Sun-Times (written before the decision) gives a nice summary of the facts of the case, but I will re-summarize them here: SEIU represented home health care workers in collective bargaining and contract enforcement in the State of Illinois. All workers represented by SEIU paid  “fair share” fees whether or not they elected to join the union. The plaintiff in this case, Pamela Harris, sued the state because she objected to being compelled to pay “fair share” fees. As the Sun-Times article notes, “fair share” fees were approximately two-thirds of the amount of member dues, and roughly 60% of the home health care workers represented by SEIU chose to join the union. Harris was represented by the National Right to Work Legal Defense Foundation, a non-profit organization committed to the “right” of employers to exploit workers without any union or government interference.

The legal team for the plaintiff argued that Illinois’ “fair share” system for public unions is a violation of workers’ First Amendment rights. How? First, it’s useful to know more about the “fair share” system. In states with “fair share” provisions, public sector unions can collect fees from all of the workers represented by the union and covered by the union’s contract, whether or not a worker chooses to join the union. The idea behind “fair share” laws is that everyone who benefits from the union and its contract must pay their “fair share.” There are strict regulations about what unions can do with these “fair share” fees: they must be used for contract negotiation and enforcement, not for political campaigns or lobbying efforts. Public sector unions are free to use members’ dues for political speech because members are voluntarily committing their money to the union for that purpose, but non-member (or “fair share” member) fees are exclusively available to unions for non-political purposes.

In Harris, the plaintiff’s legal counsel challenged the Court’s previous interpretation of what constitutes political speech. They argued that any discussion between a private organization and the state about how the state will allocate funds, for example, is political speech (a petition to the government to influence public policy). This means that when a union (private organization) is bargaining with a public employer (the state) over workers’ wages and benefits, they are engaging in political speech. As a matter of fact, any interaction that a public sector union has with a state-funded employer could constitute political speech. The First Amendment protects individuals from being compelled by the state to support political speech. Thus, on this interpretation of what counts as political speech, “fair share” clauses violate the First Amendment rights of non-members.

If the Supreme Court had accepted the plaintiff’s interpretation entirely, “fair share” would have come to an end across the United States. States with “fair share” provisions like Illinois would have plunged into the right-to-work abyss currently inhabited primarily by the low-wage South. Public sector unionism – the last stronghold of labor in the U.S. – would have faced the challenges they’ve faced in Wisconsin and Michigan recently, only on a national scale. This would be a devastating blow to the rights of workers, especially in high-turnover sectors like graduate employment. Ask your friends and colleagues in graduate school at public universities in the South about their working conditions. When I left graduate school at an urban public university in Tennessee in 2009, I made $1,100 per month working a 75% assistantship (30 hours/week). That’s just over $9/hour before taxes. My employer did not provide health insurance.

The Court’s opinion, written by Justice Alito, found for the plaintiff: a 5-4 majority of justices agreed with Harris’ argument that home health care workers should never have been considered state employees in the first place and consequently they did not have a right to enter into collective bargaining with the state. This was a disastrous decision for the home health care workers represented by SEIU in Illinois but most other unionized workers seem to have escaped unscathed. According to Justice Alito, since the home health care workers should never have been unionized in the first place, the Court was unable to consider the merits of the other, larger question: are “fair share” deductions a violation of workers’ First Amendment rights? Justice Alito made it clear that he believes “fair share” fees are such a violation and he all but invited a future plaintiff to give the Court the occasion to rule against “fair share” fees nationwide. Now that the Court has indicated a willingness – perhaps even an eagerness – to review the legality of “fair share” per se, the National Right to Work Legal Defense Fund and its allies will be further emboldened to bring cases before the Court to end “fair share”. This does not bode well for unionized workers and our families. We should all be watching nervously to see whether or not the Supreme Court will dismantle one of the remaining vestiges of worker power in the United States. Unionized workers in Illinois have additional reason to worry: our new governor, Bruce Rauner, is an outspoken opponent of “fair share” laws and is reportedly already proposing “right-to-work” zones as a means of dismantling “fair share” in parts of our state. It might be time to consult our allies in Wisconsin and elsewhere to learn about organizing in a post-”fair share” landscape.

Amy Livingston
GEO Staff Organizer

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