collective bargaining

  • July 11, 2014
    Guest Post

    by Catherine Fisk, Chancellor’s Professor of Law, University of California Irvine School of Law

    As I have argued elsewhere, in striking down an Illinois law authorizing the state to require unionized home care workers to pay their fair share of the cost of union representation, the Supreme Court in Harris v. Quinn disregarded its longstanding rule that it does not decide questions of state law and failed to reconcile the result with the First Amendment rights of government workers or the Court’s other cases on when compulsory fees constitute compelled speech. 

    First, under Illinois law, government-paid and government-regulated home health-care workers are state employees. Justice Alito’s majority opinion in Harris disregarded state law when it invented a vague new category of non-“full-fledged” government employees who have greater First Amendment rights than other workers to refuse to pay the costs of union representation.

    Second, if under Garcetti v. Ceballos, and United States Civil Service Commission v. National Association of Letter Carriers, government employees have no First Amendment rights to speak on the job on matters of public concern or to engage in political activity on their own time, why do some government employees have a First Amendment right to refuse to pay for services that their union is legally required to provide them?

    Third, the Court failed to explain why fair share fees differ from compulsory payment of lawyers’ bar dues, which the Court approved in Keller v. California State Bar.  To quote Keller, substituting only “home care workers” for “legal profession,” Illinois has an “interest in regulating [home health-care workers] and improving the quality of [home health-care] services.”

    Yet there is a way forward. As I argue with Ben Sachs, where unions are unable to require objecting workers to pay fees – whether it’s in right-to-work states or in work situations that fall under Harris v. Quinn – we should get rid of the rule of exclusive representation. Non-fee payers wouldn’t be subject to the terms of the collective bargaining agreement, they wouldn’t have to interact with their employer through a collective agent, and they wouldn’t be required to pay anything to a union they didn’t vote for. Unions, for their part, would be required to represent only those workers who actually want representation.  Another possibility is that governments wishing to bargain with a single representative on behalf of their workers could agree to pay the cost of the representational services on behalf of all workers. No worker would then be compelled to pay anything to a union and the dissenting workers’ First Amendment rights would not be violated.

  • January 21, 2014

    by Jeremy Leaming

    The U.S. Supreme Court in Harris v. Quinn may not overturn precedent, seriously disrupting public employee unions, but such a possibility was “at least on the table” during today’s oral argument in the case.

    In an argument recap, SCOTUSblog’s Lyle Denniston reported that “atmospherics” of today’s oral argument “suggested strongly that this case has very large potential.”

    The case involves Illinois recognizing a single union for its home health care workers. Health care workers are not forced to join the union (in this case SEIU), but all members are required to pay fees for the union to engage in collective bargaining. A few state health care workers represented by an anti-union outfit called the National Right to Work Legal Defense Foundation are challenging that practice embodied in the National Labor Relations Act and supported by high court precedent.  

    Defending precedent on public employee unions was U.S. Solicitor General Donald B. Verrilli, Jr., who Denniston reported, “talked as if he, too, perceived the case to be a severe test of public worker collective bargaining.”

    Nearing end of oral argument, Verrilli urged the justices to uphold its 1977 precedent set in the case Abood v. Detroit Board of Education. That case has stood “for forty years, and is entirely consistent with the First Amendment jurisprudence regarding the government as employer,” he said.

    Representing Illinois and the union, Paul M. Smith, partner at Jenner & Block and a member of the ACS Board of Directors, discussed implications of the case with NPR before oral argument.

    If the high court were to upset precedent and decide, “You can’t have an exclusive representative union, that would be a stake in the heart of not just unions in the public sector but all unions,” Smith told NPR.

    For more analysis of the case see the ACSblog series on Harris v. Quinn.

  • December 11, 2013
    Guest Post

    by Charlotte Garden, an Assistant Professor at Seattle University School of Law, where she is co-advisor to the student ACS chapter.

    The past few Terms have been tumultuous for First Amendment doctrine, and this Term is shaping up to be another First Amendment blockbuster, with cases like Hobby Lobby Stores, Inc. v. Sebelius and McCutcheon v. FEC on deck. But for labor unions, another First Amendment case has potential to be the biggest game changer: In January, the Court will hear argument in Harris v. Quinn, a First Amendment case about union representation in the public sector. At stake are two important questions:  first, the extent to which states can allow homecare workers who are paid by the state to be represented by a union; and second, whether public employees have a constitutional right to refuse to pay for the costs of union representation. Thus, while Harris involves an Illinois statute that allows homecare workers to bargain collectively, it has the potential to affect the structure of public sector bargaining throughout the country. 

    Illinois is deeply vested in improving working conditions for homecare providers – not only do better wages and working conditions mean more stability in the profession (which is good for consumers), but the state also administers many of the programs that fund homecare workers. Under these programs, while consumers or their guardians choose their own homecare workers and direct their day-to-day work, Illinois determines the number of hours they can work, defines minimal standards, creates training opportunities, and sets the workers’ wages and issues their paychecks, among other job parameters. This division of responsibility between state and consumer sets the stage for Illinois’s decision to allow homecare workers to form a union, and is a primary reason for the legal challenge in Harris.

    Specifically, elected officials made the proprietary decision that homecare workers – a group that defies the traditional hallmarks of a centralized workforce – are entitled to the same right as myriad other workers: the right to choose whether to form a union. The scope of that right, however, is carefully circumscribed by statute. The majority-approved union may bargain only with the state (not with consumers), and only over the economic conditions that the state controls, such as wages, benefits, training, and certain other working conditions.  

  • January 11, 2013
    Guest Post

    by Ellen Dannin. She is the author of  Taking Back the Workers’ Law - How to Fight the Assault on Labor Rights (Cornell University Press) and the Fannie Weiss Distinguished Faculty Scholar and Professor of Law at Penn State Dickinson School of Law.


    Through the decades, many proposals have been made to replace, repeal, or amend the National Labor Relations Act. Most have foundered for good reason. Amending the NLRA requires applying the precautionary principle – first, do no harm. 

    In the case of the NLRA, proposed amendments should be justified by showing that a change will promote the NLRA’s purposes and policies. The ultimate policy is to restore equality of bargaining power between employers and employees by “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”  The basic goal was to balance the power corporation and partnership law gave employers to become collective with a law that gave employees the right to take collective action to improve working conditions.

    The standard to measure the value of proposals to change the NLRA is not whether the change would increase the number of union members – although that certainly matters. It is whether the change would increase employee bargaining power. The purpose of increasing employee bargaining power was to improve the quality of work, and, ultimately, promote a fairer, more prosperous, more democratic society.

    Congress was impelled to pass the NLRA because the increase in power employers had, as a result of corporation and partnership laws, so skewed power toward employers that wages and working conditions had spiraled down and led to economic collapse.

    We have seen similar dynamics during the Great Recession with attacks on employee working conditions, and especially attacks on public sector employee wages and benefits – as well as through privatization. The ferocity of those attacks in recent years and the low percentage of union members raise concerns that the spiraling down of working conditions will lead to economic disaster. Desperate times seem to call for desperate measures.

    However, these days, most people have little to no first-hand knowledge of how the National Labor Relations Board operates or of the purpose of the law. Here, then, is a brief NLRA / NLRB primer.

  • September 21, 2012
    Guest Post

    By J. Chris Sanders, General Counsel, United Food & Commercial Workers Union Local 227


    Michigan voters will have the opportunity to defeat so-called “right-to-work”in November, and ensure that Michigan workers will have constitutional rights on the job far above current federal law.

    What is "right-to-work"? In short, big trouble for working people, a law that, as Martin Luther King said, guarantees neither rights nor work.

    A little background: Right-to-work is a provision in the National Labor Relations Act. The trouble comes from the NLRA's weak constitutional underpinning. The NLRA is founded upon the U.S. Constitution's Commerce Clause, affording the federal government the power to enact statutes and take other actions to regulate commerce. Unlike many countries, U.S. labor rights to organize and bargain collectively are not deemed fundamental. In other countries, these rights are founded upon those of freedom of speech, association, and assembly, but not in the U.S.  Here, it's just about commerce, meaning business.

    Right-to-work is all about business. The federal NLRA permits states to enact laws that keep unions weak and wages low. It requires labor unions, which are membership organizations, to bargain for and represent employees who choose not to be members for free, thereby weakening those unions and driving down wages.