July 1, 2014

Getting Something for Nothing in Harris v. Quinn

Harris v. Quinn, J. Chris Sanders

by J. Chris Sanders, Attorney, Chris Sanders Law PLLC

In a unionized workplace, one labor union has the sole and exclusive right to represent all those employees. The workers select one union, and the union handles workplace matters for everyone. That typically means collective bargaining–negotiating as a group to build better pay, better benefits, better hours, better treatment and respect on the job into a union contract. Despite these tough times for unions, the union advantage for workers is10-20 percent over the same workers in the same industries. It also means job protection, usually requiring representation by volunteer activists and paid staff at union expense. As lawyers will understand, representation is costly, and being in a union is financially worthwhile.

Along with the right to represent people, the union has the duty to represent everyone alike. No picking and choosing between members and nonmembers. That’s right, members and nonmembers, because a worker doesn’t have to join the union in a unionized workplace to be represented. Choosing to join is and has been a First Amendment right, recognized for decades.

Workers who don’t join weaken the union in bargaining, as the proverbial chain is only as strong as its weakest nonunion link. Contracts and benefits in states and industries where unions are weak are weaker, too. You get what you pay for. Nevertheless, letting people opt out isn’t a group decision, though it affects the group. It’s an individual choice.

But, whether the union is weak or strong, the non-member gets the benefits contained in the union contract. In return, nonmembers must pay for the union services that achieved the gains made in collective bargaining and the protections provided by union representation. In the public sector, it’s known as “fair share”–paying one’s fair share of the cost all workers bear for union representation.

Until now. In Harris v. Quinn, the Supreme Court launched a direct attack on paying one’s fair share. The 5-4 majority discredited decades of precedent underpinning the duty to pay. But then it dodged and weaved, avoiding a direct decision on the First Amendment. Rather, it said that the Illinois homecare workers weren’t true government workers, so the statutory fair-share fee can’t be enforced. This doesn’t bode well for the new American workplace, with its “associates,” contractors, temps, subs, project people, etc. smudging the lines between employer and employee. But it’s the main issue that matters. The right-wing Justices made it clear that individual whim trumps group responsibility.         

A recent personal story about why it matters. I handled a case involving a young Cuban meatpacker who speaks very little English wanted to buy some pork at cost. He boxed up the meat, then asked a co-worker how to code the purchase. They miscommunicated, so he mis-coded, and put the wrong tag on his purchase. A manager met him at the gate, accused him of stealing the pork, and fired him. You can’t make this stuff up. 

If this were a non-union workplace, that would be the end of the story. He would have had no legal recourse, no way to get his job back. Under the employment-at-will doctrine, employers don’t have to justify their decision to discharge, and don’t have to prove theft. But this is a union shop, where workers have rights and power. The union filed a grievance through the contractual procedure, and volunteers and paid staff advocated for him. That costs. When the company wouldn’t settle, the union sought arbitration. That’s expensive–there’s a filing fee, an arbitrator’s fee, hearing expenses, and my time as union counsel. Thousands of dollars. All at no cost to the wronged worker. At the hearing, it came out that, in mislabeling his purchase, he’d actually paid too much for the pork. The arbitrator got the picture, and put him back on the job, awarding months of lost wages.

Post-Harris, that very same protection will now also be available to nonmembers in unionized government workplaces, without ever paying their fair share of union expenses. They will literally get something for nothing when they file their grievances. The actual expense to the union, grievance upon grievance, may be big. For a typical discharge case, it’s certainly far more than that person would ever pay out of pocket for union dues over years (assuming anyone stays in any one job for years any more in the new American workplace). Imagine the same scenario above, with a long-term employee who never paid any fees, gets fired, and disdainfully demands the same services as those who pay their fair share!

Back to collective bargaining, in and of itself a huge benefit to all employees, member and nonmember alike. The Harris petitioners were making $7 an hour before they unionized in Illinois. Their union contract raises wages as high as $13 an hour. They would never have gotten there without their union, which spent hundreds and thousands of volunteer and paid hours in negotiations and advocacy to get organized and get to a contract. But the Harris petitioners will still get to enjoy their doubled wages, but now can drop their fair-share fee.    

No other organization has to provide services for free. Unions have been singled out for this burden under the “right-to-work” (right-to-shirk) scheme. Right-to-work has been the law in the South and in the West since the 1940’s, and the Supreme Court just drew a roadmap for right-to-work from Illinois to public-sector workplaces all across the country. Why should labor be singled out for required free services? Professionals, businesses, service-providers, nonprofits, and yes, government, all assess fees for services. Ask the Chamber of Commerce or the bar association if you can join and get benefits and services for free. It’s a rhetorical question, you already know the answer.