In two controversial decisions this summer, the U.S. Supreme Court made it more difficult for unions to operate, and could make it more important to come up with innovative ways to do their work.
In both “Harris v. Quinn” and also “Burwell v. Hobby Lobby,” there are implications that could chip away workers’ attempts to organize and even jeopardize existing unions.
The far-reaching consequences go beyond Illinois and the public-sector unions affected by “Harris.” Also possibly at risk are workers employed by corporations whose majority owners decide to cite “religious objections” to collective bargaining.
The dangers could require unions to be more aggressive, honest and effective, reminding workers of the value of organizing, bargaining and achieving as a group, and to create “hybrids” that serve labor’s function while avoiding constitutional “traps” laid by the Roberts Court.
The narrow, 5-4 “Harris” decision reversed a 2011 Appeals Court ruling and killed “agency fee” arrangements for Illinois home health care workers paid from Medicaid funds and represented by the Service Employees International Union (SEIU).
The eight petitioners, financially supported by the anti-union Right To Work lobby, argued that their First Amendment rights were violated by an Illinois law requiring agency fees from those not interested in joining the union in order for them to share the costs of legally required fair representation by SEIU.
Illinois is just one of 26 states that require workers under a union contract to either join and pay dues or pay an agency fee if they decline to be full members.
In his majority opinion, Justice Samuel Alito wrote, "A union's status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked.”
In Justice Elena Kagan’s dissent, she noted that the union helped improve wages, benefits, cost effectiveness and safety, writing, "It is not altogether easy to understand why the majority thinks.” The ruling jeopardizes "the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the nation.”
“Harris” may make it necessary for unions to function with fewer resources, a real challenge.
David Gregory, director of the Center for Labor and Employment Law at St. John’s University in New York, said, "Without that automatic deduction of union dues, the lifeblood of the union, of the day-to-day operating matters, would be essentially drained in a matter of months.”
American Federation of Teachers president Randi Weingarten said, "The Roberts court has consistently ruled in favor of corporate interests, while diminishing the rights of labor. While the court upheld the importance of collective bargaining and unions to families and communities, let's be clear that working people, who have aspired to the middle class and tried to make a better life for their families, have taken it on the chin for years.”
The “Hobby Lobby” ruling is relevant, too. Although focusing on the Affordable Care Act’s requirement that employers include birth-control prescriptions in health insurance plans, which it struck down, the ruling could also provide legal cover for union busting.
If an employer takes the NLRB to court and uses that religious exemption argument, it could be a big court fight about the future of union rights in workplaces with nominally religious connection.
Alex Luchenitser, associate legal director for Americans United for Separation of Church and State, said, “All you need is one employer saying, ‘My religious beliefs tell me I shouldn’t collectively bargain’.”
MSNBC reporter Ned Resnikoff noted, “If private corporations can be religious institutions, then private corporations may soon argue in court that they have a First Amendment right to object to collective bargaining on religious grounds."
Of course, workers didn’t start out organizing with government help.
It may be necessary to return to those days, to resort to tactics used in the 1930s along with 21st century innovations.
Contact Bill at Bill.Knight@hotmail.com; his twice-weekly columns are archived at billknightcolumn.blogspot.com
The opinions expressed are not necessarily those of Tri States Public Radio or Western Illinois University.