Policy: Law

Big Labor's big problems with the Supreme Court

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Opinion,Columnists,Sean Higgins,Labor unions,Supreme Court,Labor,Illinois,Right to work,SEIU,Law,Magazine,Harris v. Quinn

About the best thing that Big Labor can say about the recently concluded Supreme Court term is that it could have been much worse for them.

Union leaders dodged two major bullets in the cases Harris v. Quinn and Unite Here Local 355 v. Mulhall that could have drastically limited union power.

The overall trend remains ominous for Big Labor though. Since John Roberts became chief justice, the court has signaled a willingness to re-think labor law. A major point of emphasis has been the conflict between individual worker rights and union power. Federal law generally assumes that a union's interests are the same as its workers' but the court has taken up cases that test that theory.

This first became clear with the 2012 case Knox v. SEIU. In that, the court ruled that a union could not force nonmembers covered by its contract with management to pay into an emergency political campaign fund without first giving them a chance to opt out — a serious blow to union efforts to raise quick cash.

Justice Samuel Alito's majority opinion even further though, saying that such compulsory union fees "constitute a form of compelled speech and association that imposes a 'significant impingement on First Amendment rights.' "

That sparked a lot of attention among labor law experts, since it sounded like the same argument for right-to-work laws, which prevent workers from being forced to join unions even in unionized workplaces.

Currently 24 states have these laws. Alito seemed to suggest they should apply nationally.

Harris v. Quinn could have done that for public sector unions. The case involved whether a 1977 precedent in Abood v. Detroit Board of Education that allowed for forced unionization of government employees should apply to state-subsidized Illinois home caregivers. Many thought the court would throw out Abood completely.

Instead, the court found in a 5-4 ruling that the caregivers weren't really state employees in the first place, so Abood didn't apply.

The majority opinion, again by Alito, spends most of its time discussing Abood’s shortcomings though, calling that decision "questionable on several grounds … [that] have become more evident and troubling in the years since then."

In other words, Abood may get overturned the next time the court gets a case that directly deals with it.

The second dodged bullet, the Mulhall case, involved a deal a Florida race track struck to help a union organize its workers in exchange for a very limited "no strike" contract. The case looked at whether such deals amounted to bribery.

That was significant because such "top-down" labor organizing tactics are fairly common. Should Big Labor have lost, it would have made such deals a legal minefield for unions.

However, after agreeing to hear the case last summer, the court abruptly reversed that in December, amid much speculation about what was going on behind the scenes.

The justice's other big decision involving unions this term was Noel Canning v. National Labor Relations Board, in which a unanimous court found that three of President Obama's NLRB recess appointees in 2012 were invalid.

This case was about the limits of executive branch power, not anything specific to labor. Still, by ruling the appointees invalid, the court said that the NLRB had retroactively lacked a valid quorum from 2012 and well into 2013. Hundreds of rulings by a pro-labor board will now have to re-litigated.

AFL-CIO President Richard Trumka denounced the Supreme Court for having "extreme views" in a statement after the Harris v. Quinn ruling -- without getting into what specifically was so extreme about them. He's going to have to come up with better arguments than that if he wants to prevent Big Labor from losing in the future.

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