by Ann C. Hodges, Professor of Law, University of Richmond School of Law
* This post is part of a series examining Harris v. Quinn, for which the high court heard oral argument on January 21.
While there are many things one could say about the January 21 oral argument in Harris v. Quinn, three things stood out to this long-time labor lawyer. There was a long exchange between Justice Kennedy and the union’s lawyer about whether the issues about which public employers typically bargain are political issues. This portion of the argument cast doubt on the validity of the distinction that the Supreme Court has made between chargeable expenses, those related to collective bargaining and contract administration, and non-chargeable expenses, which include everything else but most importantly political expenditures.
This longstanding distinction has protected objecting employees from being forced to subsidize unions’ political activity. As suggested in the argument, however, anything relating to terms and conditions of employment of public employees involves government expenditures and the way government spends funds can always be characterized as a political issue. The reach of this argument calls into question not only the model of exclusive representation that has been the basis of labor law in this country since 1935, but also collective bargaining for public employees in general. If the union must represent all the employees in the bargaining unit, as it is required to do by law, it must negotiate for benefits and working conditions that affect government expenditures; some employees may view these as political positions to which they object. While it seemed that the National Right to Work Legal Defense Foundation’s argument questioned the constitutionality of public sector bargaining and exclusive representation, the lawyer assured the justices that those issues were not before them in this case. The implications for the American labor law system are clear, however.
There was also a suggestion that the free rider problem could be solved by abandoning exclusive representation and allowing the union to represent only its members. This ignores two realities. First, as a practical matter employers do not want to administer different pay plans, benefits and working conditions for similar groups of employees. The nonmembers would likely obtain what the union negotiates even without the requirement of exclusive representation. Second, as suggested by the union’s lawyer, what could be more coercive of associational rights than a system where unionized workers are paid more than nonunion workers doing the same job solely because they are union members? Although the attorney from the National Right to Legal Defense Foundation intimated that such a system would be constitutionally and legally permissible, it would be surprising if no legal challenge to such a disparity were mounted.