Labor has lost support among the public, too. Big unions could take big SCOTUS hit

Public-sector unions are bracing for a Supreme Court decision Monday that could deal a major blow to their wealth and political clout.

Union leaders fear that conservative justices will use the case, Harris v. Quinn, to strike down laws in 26 states requiring teachers, police officers, firefighters and other public-sector employees to pay dues to the unions that negotiate contracts on their behalf, even if the workers don’t want to become union members.


A sweeping decision could decimate union membership and finances — and would come at a time when unions already are besieged and struggling to keep up their numbers. Just 11 percent of wage and salaried workers were union members in 2013, down from 20 percent in 1983, according to the Bureau of Labor Statistics.

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Republican governors, such as Wisconsin’s Scott Walker, Rick Snyder of Michigan and Tom Corbett of Pennsylvania, have gotten considerable political mileage by going after unions. And even Democratic politicians have hesitated to cozy up too close to their onetime allies. Some of them, including Gov. Pat Quinn in Illinois and Gov. Andrew Cuomo in New York, have publicly crossed big labor, cutting pensions and demanding concessions in the name of fiscal responsibility.

Labor has lost support among the public, too. In a 2013 Gallup poll, just 54 percent of respondents said they approved of unions, down from 65 percent a decade earlier.

How bad could the Supreme Court decision be for unions? Consider that in the two years after Walker ended compulsory union membership in his state, the American Federation of Teachers lost 65 percent of its statewide members and the National Education Association shrank by 19 percent. Other public-sector unions also took big hits, with revenue plunging by 40 percent or more.

A ruling against unions in Harris v. Quinn “would be huge,” said Terry Pell, president of the Center for Individual Rights, a nonprofit conservative law firm.

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It could weaken a group that is still generally a crucial ally of the Democratic Party — in key swing states such as Colorado, Ohio and Pennsylvania, as well as in liberal bulwarks such as California and New York.

“Whether the court goes halfway or whole hog on this,” Pell said, “it’s going to fundamentally change the balance of power between public employees and state governments.”

Government employees have been big labor’s last true stronghold: 35 percent of public-sector workers belong to a union, compared to less than 7 percent of private-sector employees.

“There is no question” that anti-union forces “are targeting, with this potential ruling, the heart of organized labor and its political base,” said John Beck, an associate professor who studies labor relations at Michigan State University.

Labor analysts point out that unions won’t instantly be neutered if the ruling goes against them; they still have the resources and the muscle to fight hard to retain their members. Some police and firefighters unions have kept membership rates up even in states that don’t allow collective bargaining for public workers.

If the court sweeps away compulsory dues, many more unions “will need to convince employees to pay for representation that the employees would be entitled to receive for free,” said Benjamin Sachs, a Harvard law professor who studies labor and has blogged frequently about the case. “But unions have overcome difficult court decisions in the past,” Sachs said, “and the historical track record suggests that they will be able to adjust to a loss in Harris v. Quinn as well.”

The ruling expected Monday will resolve a class-action lawsuit brought by eight health workers in Illinois who care for disabled patients in private homes. The workers are paid at least in part by the state, through the Medicaid program.

Illinois treats such workers as state employees, represented by affiliates of the Service Employees International Union or the American Federation of State, County and Municipal Employees.

The Supreme Court has made clear that public-sector employees can’t be forced to support a union’s political activity.

But a 1977 decision allows states to require workers to pay partial dues, or “agency fees,” to cover the union’s cost of negotiating their contracts and representing them in grievances. Illinois is among the states to require just that.

The eight plaintiffs argue that compelling them to pay such dues violates their First Amendment rights — the right to free association and also the right to free speech, since they’re effectively forced to pay the union to speak on their behalf.

The home health aides are represented by the National Right to Work Legal Defense Foundation, a conservative nonprofit that defines its mission as the fight to “eliminate coercive union power and compulsory unionism abuses.”

Unions, naturally, take a decidedly different view of the issue: They argue that a ruling in favor of the health aides could turn millions of workers into freeloaders, enjoying the benefits of union-negotiated contracts without paying their fair share of the costs.

And that would “undermine the ability of workers to press collectively for better public services and basic rights at work,” said Dennis Van Roekel, president of the National Education Association, which represents nearly 3 million teachers and retirees.

“Instead of using the courts to strip away the rights of everyday heroes like teachers, nurses, caregivers, firefighters and cops,” Van Roekel said, “we need to focus on finding ways to create jobs, help working people and get our economy moving again.”

The NEA joined the AFL-CIO and other unions in filing amicus briefs opposing the home health workers. Several states have stepped in to back the unions; so has the federal government. Solicitor General Donald Verrilli helped argue their case.

Among the unions’ arguments: Courts aren’t the right place to decide such issues in the first place. If the home health care workers have a complaint about state law, the unions argue, they ought to take it up with the legislature. The plaintiffs “should not be allowed to substitute adjudication for engagement in the democratic process,” the AFL-CIO wrote in its brief.

Justice Antonin Scalia has signaled that he is somewhat receptive to that position and reluctant to issue a broad ruling striking down compulsory dues. So until recently, it seemed unlikely that unions would lose big in this case. “It would surprise a good number of observers, including those who wrote the First Amendment, [if the justices decide] that right-to-work is a constitutional mandate and not a legislative option,” said Sachs, the Harvard law professor.

But in oral arguments in the case last January, Scalia’s fellow conservatives on the court expressed an eagerness to take on the issue.

Justice Samuel Alito, in particular, has openly invited workers to challenge the concept of compulsory dues on First Amendment grounds.

And veteran court watchers are predicting, based on the division of opinions so far, that it will be Alito who will deliver the majority opinion Monday morning, the last day of the court’s term.

The court could, of course, still uphold lower courts’ decisions that the health care workers must pay their fair share of union dues because they benefit from union activities.

Or the justices could issue a narrow ruling, finding that home health aides don’t qualify as government employees and thus can’t be compelled to join public-sector unions. That would be a setback to unions that have sought to organize home health aides in several states, but it wouldn’t have as huge an impact.

Even if unions dodge a bullet in this case, however, others may be coming down the pike.

The Center for Individual Rights is representing several California teachers suing to get out of paying union dues on First Amendment grounds. That lawsuit is pending before the Ninth Circuit. If Harris v. Quinn doesn’t settle the issue first, it could come before the Supreme Court as early as next year.