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Sunday, June 29, 2014

Looking Ahead to Harris v. Quinn

Only two Supreme Court cases remain to be decided this term: Hobby Lobby and Harris v. Quinn.  Based on a breakdown of the authors of opinions thus far this term, Amy Howe at SCOTUSblog believes that "Justice Alito, who has not yet written a decision from January, will be writing in Harris."  As kind of a pre-cap to the ruling, here are some quick thoughts on what an Alito opinion in Harris might mean:

  • First, check out Charlotte Garden's discussion of Justice Alito's questions in oral argument and his majority opinion in Knox v. SEIU Local 1000 to get a sense of why unions are worried about an Alito opinion.
  • Not to be too cynical about the ordering of opinions, but the coverage of Hobby Lobby is likely to hide Harris under its shadow.  If Harris is as revolutionary as some folks fear/hope, it would make sense to give it some political cover.
  • The most sweeping version of the opinion would likely prohibit states from signing on to any agreements that require their public employees to pay any level of funds to a union.  Knox clearly hinted at such, saying that mandatory dues were "an anomaly" that the Court had "tolerated" but perhaps for not much longer.  This change would be a big financial blow to unions, as it would allow any employee to opt out of any payments to the union.  But I have not seen many folks talk about the next step if public jurisdictions were required to be "right to work."  Namely: would some states then relax the duty of fair representation requirements on unions, and/or allow for members-only bargaining?  Under our current system, everyone in a "fair share" jurisdiction has to pay at least bargaining costs because they are all represented by the union.  But states could change their own public labor laws and provide that a union need only represent those employees that are members.  The NLRA requires unions to represent everyone in the bargaining unit, but there is no federal "public NLRA" governing state and local employees.  So states could say, "We will only bargain with the union as to those employees who are in the union.  Whatever benefits the union secures will only go to union-member employees."  Will states actually want to do this?  I'm not sure -- it would be messy.  But if states want to provide their employees with the opportunity to unionize, a members-only system would certainly be more economically sustainable than a system allowing employees to free-ride off union negotiations.
  • A decision prohibiting agency-fee agreements would be a blow to federalism.  The individual states pursue a variety of different labor-relations regimes based on their own statutory and agency HR approaches.  States should be free to arrange these relationships within historically acceptable models of employee-management relations.  Jutsice Powell's dissent in Garcia v. San Antonio Metropolitan Transit Authority argued that state and local services such as “fire prevention, police protection, sanitation,and public health” are “activities that epitomize the concerns of local, democratic self-government."  Public employees provide these services.  States should be able to provide for a majoritarian system of employee representation that requires some minimal level of payment for the negotiation services that the union provides.  But if they are denied this opportunity, do not be surprised to see a variety of new and different models being proposed and enacted at statehouses across the country -- models that may require employees to actually join the union if they want the benefits that the union provides.  So perhaps the ultimate result of a "right to work" opinion would be that employees will feel more of an economic compulsion to join the union (and pay full dues) than they did when they could refrain from joining the union but still enjoy the fruits of representation.

Posted by Matt Bodie on June 29, 2014 at 10:28 AM in Workplace Law | Permalink


Ridiculous. If it's a union only shop, you should be forced to join. It's for the good of the whole. Benefitting and not paying is part of the freeloader movement that is fundamentally destroying the US work ethic. Pay your share or don't get the benefits. In some RARE cases one could perhaps get a better package on their own, but in almost every case it comes down to the fact you are replaceable, non-unique, and can be replaced. There needs to be protection for the worker from the cost/budget/profit sensitive employer who feels they could hire someone cheaper and less experienced just to save a buck.

Posted by: Union guy | Jun 30, 2014 2:48:23 PM

I like the idea of negotiating for members only. It would let a person make a value judgement on membership. If they weren't a member and were getting hosed, they'd quickly join, provided that they perceived the value of the services and benefits to be worth the price of the dues. I am a public school teacher and NOT a member of our 'association'. I offered to join the local but wanted no part of the national union - no dice they said. We didn't have 'fair share' at the time but the school board relented later and grandfathered the 5 of us in the whole district who weren't members at the time out of fair share. I don't feel like I'm freeloading on the negotiated contract. In fact, I think it is holding me back in some ways. My credentials are hard to come by and being a second career teacher puts me in a position where I think I could negotiate a more acceptable package for myself than average one size fits all union scale.

Posted by: hopley yeaton | Jun 30, 2014 8:42:39 AM

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