U.S. Supreme Court poised to decide key labor issues
Several cases that go to survival of the labor movement are on the docket of cases the U.S. Supreme Court will take up during the nine-month term that started on Monday, October 7 and will end in June.
In one case, Harris v. Quinn, an employee seeks to limit the ability of public-sector unions to collect dues. In the other case, Unite HERE Local 355 v. Mulhall, an employee seeks to limit the ability of private-sector unions to sign up members. Both employees have the rabid support of the Right to Work Legal Defense Foundation, an employer-friendly legal nonprofit that purports to protect the right of individual workers not to be represented by unions.
The nine-member Supreme Court is currently dominated by a five-member conservative bloc that supports employers against workers in virtually every case involving workplace issues. Reuters news service reports that, among the 47 cases the court has already agreed to hear this term, 28 involve or affect business interests as tallied by the Chamber of Commerce, the main lobby that files briefs in the Supreme Court on behalf of corporate America. In the Supreme Court’s last term, which ended in June, the Chamber of Commerce scored victories in 14 of the 18 in cases in which it filed friend-of-the-court briefs. The Chamber is likely to file briefs in both of this term’s key union cases. The Right to Work Legal Defense Foundation, while claiming to represent workers, is invariably on the same side as the Chamber on workplace legal issues and this is expected to be true in these cases as well.
Public-sector Union dues challenged
Harris v. Quinn involves a lawsuit brought by a home healthcare worker in Illinois who is challenging a state requirement that public-sector employees pay the portion of union dues that covers costs of representation even if political expenditures are excluded. Union dues are generally the best deal on the planet, costing unionized workers only a fraction of the added wages and benefits that they earn above those of nonunionized workers. But the right-wing legal establishment has been working for years to establish the principle that requiring public employees to pay fees to support the unions elected by the majority of the workers to represent the entire workforce tramples on individual constitutional rights. In Harris v. Quinn, the Supreme Court may give its blessing to this argument.
Home health care workers have only recently enjoyed the benefits of union representation as California and other states passed special legislation enabling such workers to organize by deeming them state or county employees for labor relations purposes because their income was administered through Medicaid, the federal health care program for lower-income people acting through state or county agencies. Without the unions that have organized home health care workers in the last two decades, the home health workers, most of whom work in isolation, would simply have had no organization, voice, or representation at all.
Although the case is brought by a clueless home health care worker in Illinois, it threatens to upset the rules all public sector unions have operated under since the Supreme Court decided Abood v. Detroit Board of Education In 1977. While not questioning the general right of majority-chosen public sector unions to receive dues from all the employees they undertook to serve, the Abood case barred public sector unions from automatically collecting dues for political activities, no matter how closely related the political activities might be to the common interest of the workers represented by the unions.
This year’s Harris case threatens to go much further by establishing that any requirement that public sector workers support the unions they elect to represent them violates their free speech rights under the First Amendment to the U.S. Constitution. A nearly universal principle of labor law is that unions must provide service to all workers without discriminating on a basis of whether they pay dues or not. Thus, the Harris case, if decided against Labor, will add new unfunded obligations and reduce the financial ability of public sector unions to function at all. By claiming to base this rule on the U.S. Constitution, the Supreme Court could create a barrier to any legislative or popular challenge for decades to come.
Neutrality and card-check agreements compared to “bribes”
Unite HERE Local 355 v. Mulhall raises the question whether neutrality and card-check agreements that set conditions for unionizing workplaces violate the anti-corruption provisions in the Taft-Hartley law that amended the National Labor Relations Act in 1947. Under section 302 of the Taft-Hartley Act, it is illegal for an employer to provide “things of value” to a union.
The statute was intended to prohibit bribes. The legal argument of the anti-union advocates is that neutrality and card-check agreements should be prosecuted as felonies under the same law as any other bribes. Although this may seem improbable, at least four justices voted to hear the case, and it only takes five to decide organizing approaches used by many unions are now crimes under the 1947 law.
The fate of the NLRB
In this term, the Supreme Court will also hear the Noel Canning case which will determine the validity of President Barack Obama’s “recess appointments” to the National Labor Relations Board, made after Senate Republicans blocked ordinary appointments. If the Court rules for the employer, it will obliterate hundreds of Board decisions and require them to be reconsidered. This will be “collateral damage” from the use of the filibuster to block confirmation of Obama appointees to positions that the Republican minority in the Senate would rather see unfilled. The National Labor Relations Board is on the short list of agencies the Republicans would like to see dysfunctional.
Who will win out? It remains to be seen.
For more information, please contact your labor law counsel.
By Ted Franklin | October 8, 2013