High Court Legalizes Some -- But Not All -- "Free Riders"

(Metropolitan Washington Council, AFL-CIO)

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.

"The extreme views of today’s Supreme Court aimed at home care workers aren’t just bad for unions – they’re bad for all workers and the middle class,” said AFL-CIO President Richard Trumka. “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.  

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.

"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," said SEIU’s Henry.  

“The attacks on the freedom of workers to come together are nothing new,” said Trumka. “They are part of an onslaught from anti-worker organizations hostile to raising wages or improving benefits for millions of people.  These attacks are a direct cause of an economy in which middle class families can’t get a break because their wages have stagnated and their incomes have declined.”

The National Right To Work Legal Defense Fund, which recruited the complaining caregivers and funded the case, 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.

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.“    
- Mark Gruenberg, PAI Staff Writer