by Ann C. Hodges, Professor of Law, University of Richmond
In earlier posts on this case, I pointed out the potential that the decision could knock out the pillars of a carefully designed labor relations system. This decision did not do so, but it is clear that Justice Alito is planting the seeds for such destruction. There is no doubt that the National Right to Work Legal Defense Foundation will accept the invitation with future, or even currently pending litigation designed for such a purpose.
Although the decision was narrower than it might have been, it was not a victory for the union or the health care workers it represents. The predictable majority in the 5 to 4 decision noted that the workers at issue are not exclusively state employees. They are also employed by the disabled individuals who hired them to provide home care. Therefore, these partial government employees are not covered by the Court’s 37-year old precedent that allows states to enter into agreements with unions that require all employees that the union is mandated by law to represent to pay the costs of such representation. As a result, the state cannot choose to require these employees to pay the cost of union representation, despite its decision that collective bargaining is an effective way to accomplish its interests as an employer.
Justice Alito spent pages questioning the 1977 Abood decision, which found such agreements do not violate the First Amendment so long as they do not require objecting workers to pay for the union’s political or other nonrepresentational activities. Abood was decided without a dissent by a Court with such notable conservatives as Justices Rehnquist and Powell, demonstrating just how far the Court has moved in recent years. Justice Alito’s discussion of Abood mirrored and expanded his 2012 opinion in Knox v. SEIU, in which he similarly questioned Abood in dicta, expounding on an issue not raised by the parties in the case. Anyone who doubts that conservative justices engage in judicial activism should read both opinions. At one point Justice Alito supports the proposition that avoiding the problem of free riders, nonmembers who accept the benefits of union representation without paying the cost, does not justify the constitutional harm to the nonmembers who must pay those costs by citing as persuasive authority his own dicta in Knox.Justice Kagan’s dissent in Harris fires back by quoting an earlier opinion by Justice Scalia, who joined the majority opinion here:
“Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The ‘compelling state interest’ that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of ‘free-riding’non-members; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is distinctive, however, about the ‘free riders’ [in unions] . . . is that . . . the law requires the union to carry [them]—indeed, requires the union to go out of its way to benefit [them], even at the expense of its other interests. . . . [T]he free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.” Lehnert, 500 U. S., at 556 (opinion concurring in judgment in part and dissenting in part). Slip. Op. at 23 (dissent)
Justice Kagan’s opinion also pointed out an anomaly in First Amendment jurisprudence that results from this decision, one which would be exacerbated by overturning Abood. The Court’s other decisions on the First Amendment rights of government employees give the government broad authority to restrict employee speech in pursuit of its interests as an employer. For example, the 2006 decision in Garcetti v. Ceballos ruled that when government employees are speaking as employees, i.e. pursuant to their job duties, they have no First Amendment protection. The employer can discipline or discharge them for their speech even if it exposes government corruption or misdeeds. Similarly, if they speak about internal workplace matters such as their own discipline or pay, their speech has no constitutional protection. But when employees want to dissent from both the majority of their coworkers who have chosen union representation and their employer, which has decided that collective bargaining with a majority representative assists the government in providing the highest quality care for disabled individuals at a cost lower than institutional care, the employees’ interests are elevated and the employer’s reduced to insignificance.
Unions and their supporters can breathe a sigh of relief that today’s decision was relatively narrow. Those who have faith in a system of collective bargaining to deliver benefits to employees and employers alike can also rest easy for a brief moment. The union representing the caregivers in Illinois will almost certainly have fewer resources to help those who need it, however. As Justice Kagan correctly pointed out, in the current system there is an incentive even for strong union supporters facing financial challenges to decline to pay union dues. After all, representation is mandated regardless of payment.
But the relentless attacks on unions will not abate. In a democracy we benefit from the voices of all. The corporate voice is magnified. The voice of workers is an important counterpoint. Unions enhance that voice. If they are silenced we are all poorer for it.