High Court Legalizes ‘FreeRiders’ When Govt. and Individuals Jointly Employ Caregivers

WASHINGTON—In a decision that will harm unions, the Supreme Court voted 5-4 to legalize “free riders” in cases where state or local governments and individuals jointly employ caregivers. Public workers employed only by governments are another matter.

But the court also turned aside arguments by the National Right To Work Legal De-fense Foundation, which sponsored and financed the case, to allow “free riders” everywhere.

The court split along partisan lines, with all five Republican-appointed male justices in the majority and the four other justices – Elena Kagan, Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor – dissenting.

Justice Samuel Alito’s majority opinion in Harris vs. Quinn, a case involving caregivers from Illinois, said Illinois violated the workers’ 1st Amendment rights to free speech by requiring them to pay “agency fees” – money to cover costs of collective bargaining and contract administration – to the Service Employees, the union a majority voted for.

“A state may not force every person who benefits from this group’s efforts to make payments to the group,” Alito said.

At least 20 other states have similar arrangements where government workers whom the union represents, but who do not wish to join, must pay agency fees, Kagan’s dissent noted. So do many local governments. She predicted there could be a mass exodus from the unions, not just of the agency fee payers, but of members.

The laws of economics, letting them be free riders while still compelling unions to represent them, would lead to those departures, she predicted.

Latest data show the U.S. has 1.14 million personal care aides and 807,000 home health care aides. It does not say how many the states employ and, of those, how many are free riders. Women are an overwhelming majority of the affected workers.

SEIU and the Teamsters were the only unions to comment immediately after the ruling. Other unions commented a day later (see separate story).

“The Supreme Court delivers a bruise to unions, not a KO,” the Teamsters said. “The court ruled in a narrow decision that home health care workers reimbursed by the state cannot be charged for union representation. A Koch-linked group brought the case before the court in an effort to take away collective bargaining rights for public sector employees. They failed.”

But the pro-union governor of one state with an identical provision in its law, Martin O’Malley, D-Md., announced the next day his state would have to review its legislation.

“No court case is going to stand in the way of home care workers coming together to have a strong voice for good jobs and quality home care,” said SEIU President Mary Kay Henry. “At a time when wages remain stagnant and income inequality is out of control, joining together in a union is the only proven way home care workers have of improving their lives and the lives of the people they care for.”

“The ruling places at risk a system of consumer-directed home care in Illinois that has proven successful in raising wages, providing affordable health care benefits, and increasing training,” her union added in a statement. The Coalition of Labor Union Women said its members, and other working women, must “remember in November” the importance of who appointed – and which senators approved – the justices that ruled against workers in the agency fee payers case.

“The justices said that workers cannot be required to either become dues-paying members of the union or to pay their ‘fair share’ of dues that cover the costs of collective bargaining. It is the latest example of the Far Right trying to chip away at the collective strength of workers,” said CLUW President Connie Leak.

“The goal of the National Right to Work Legal Defense Foundation is to end trade unionism in the U.S. Although they trumpet their cause as support of free speech, they really want to guarantee that workers have no voice and no power to bargain,” CLUW added.

“Given that Illinois’ caregivers voted to unionize, it may be presumed that a high percentage became union members and are willingly paying union dues,” Alito said for the court majority. Kagan doubted that: “In fact nothing of the sort may be so presumed, given that union supporters (no less than union detractors) have an economic incentive to free ride.”

“The federal workforce, on which the majority relies, provides a case in point. There many fewer employees pay dues than have voted for a union to represent them. And why, after all, should that endemic free-riding be surprising? Does the majority think that public employees are immune from basic prin­ciples of economics? If not, the majority can have no basis for thinking that absent a fair-share clause, a union can attract sufficient dues to adequately support its functions.”

Alito explained that “partial public employees” – the caregivers — have two employers: The state and the elderly or disabled individual they care for. A state law to have free riders pay the fair share costs of the SEIU-negotiated agreement, which covers all caregivers – though the state sets their wages and benefits – is unconstitutional because the fair share payment breaks the dissenting workers’ free speech rights, Alito said.

The anti-worker, anti-union National Right To Work Legal Defense Foundation recruited the complaining caregivers and funded the case. It wanted the justices to go even further and reject union dues for all public workers in all cases, but Alito turned that down.

The caregivers “are quite different from full-fledged public employees, (so) we refuse to extend” past decisions about agency fee-payers (the Abood case), “to the new situation now before us,” Alito said. “Abood itself has clear boundaries: It applies to public employees” who must pay fair share fees. “Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems.

“A joint employer remains an employer,” Kagan responded. “Illinois kept authority over all work­force-wide terms of employment — the very issues most likely to be the subject of collective bargaining. The state thus should also retain the prerogative…to require all employees to contribute fairly to their bargaining agent,” she retorted.

Kagan did find one silver lining: Rejection of the Right To Work group’s scheme to declare all public agencies as open shops, with no requirement for union dues from anyone in any enterprise, public or private. The Right To Work group’s lawyer told reporters after oral argument that destroying unions, in public agencies and in private enterprise, by yanking all dues is his group’s ultimate goal. He even said so, to Justice Antonin Scalia, in court.

“The good news out of this case is clear: The majority declined that radical request,” Kagan said. “The court did not, as the petitioners” – the Right to Work group – “wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought necessary and appropriate to make collective bargaining work. The bad news is just as simple: The majority robbed Illinois of that choice in administering its in-home care program.”


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