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Policy: Labor

Supreme Court could deliver crippling blow to Big Labor

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Beltway Confidential,Opinion,Sean Higgins,Labor unions,Supreme Court,Labor,Right to work,SEIU,Harris v. Quinn,Pamela Harris

In the first year since the Wolverine State adopted a right-to-work law in 2013, SEIU Healthcare Michigan lost a staggering 80 percent of its members.

The case illustrates a dirty secret of the modern labor movement: A lot of its rank and file members don't want to be in a union in the first place and will leave if given the chance.

What right to work did in Michigan, the Supreme Court might soon do nationally: In the case of Harris v. Quinn, the justices must decide if Illinois state government can force its own public sector employees to participate in a union. If the ruling is "no," that could effectively extend right-to-work laws to all public sector employees.

The possibility has labor law experts closely watching the case. About half of all union members nationally - more than 7 million people - work in the public sector. Many, possibly a majority, are in workplaces that were unionized before they were hired, so they never had a chance to decide for themselves. Many may leave, hurting Big Labor's already-sliding membership numbers.

The court could announce the ruling as early as Monday.

The Roberts court has already delivered a few blows to Big Labor, such as limiting the ability of unions to raise political funds from unwilling members in 2012's Knox v. SEIU.

Another tough blow is not certain though. During January's oral arguments, conservative Justice Antonin Scalia caused a stir by appearing to lean towards Big Labor's take on the case. He could be the swing vote.

Alternately, the justices could issue a narrow ruling against Illinois that won't affect other public sector unions.

The Harris case -- named after lead plaintiff Pamela Harris -- involves people who take care of disabled family members in their own home with help of a state-provided subsidy funded through Medicaid.

Eight caregivers have legally challenged the state's position that they are public employees eligible for unionization. They argue this violates their First Amendment rights since union dues could be used to support union political speech they disagree with.

The case turns on a 1977 Supreme Court precedent in Abood v. Detroit Board of Education that said states could sign "exclusive representation" contracts with unions on behalf of their employees.

Both the state and the union in question, SEIU Healthcare Illinois & Indiana, have cited Abood extensively in their legal defenses, saying the precedent should be considered settled law. The White House has sided with them.

Justice Samuel Alito’s majority opinion in Knox hinted that the Roberts court might scrap Abood. He said compulsory union fees “constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.”

The facts in the case highlight the often too-cozy relationships between elected officials and public sector unions – relationships that don’t always benefit the workers.

Throughout most of the program's existence, Illinois had held that the caregivers were private sector workers, which meant unions could not petition the state to represent them. The Service Employees International Union had long sought to change that. It finally got its wish after Democrat Rod Blagojevich, an SEIU ally, was elected governor.

One of his first acts in office in 2003 was an executive order declaring that caregivers for the physically disabled were public employees after all. Just two months later, he awarded SEIU exclusive representation rights to them.

Big money is involved. State documents obtained by the Illinois Policy Institute show that SEIU gets about $10 million annually in membership dues from the caregivers.

Did the workers really want the union? SEIU officially claimed that 52 percent signed documents backing it. State officials have not been able to provide any evidence that they ever verified this claim. Blagojevich appears to have simply taken the union's word for it. The workers have not had another vote since then.

Notably, Blagojevich was convicted in 2011 on 17 charges of corruption related to his other duties as governor. He is currently in federal prison.

Things turned out quite differently when his successor, Democrat Pat Quinn, declared in 2009 that the caregivers for the mentally disabled were also eligible to unionize. That time, both SEIU and the American Federation of State, County and Municipal Employees sought to represent them. The state held a mail-in election to resolve the matter.

The two unions lost badly, failing to get 40 percent of the caregivers combined. Despite this resounding rejection, Quinn's executive order still stands, meaning the unions can try again and again until they do win.

SEIU Healthcare Illinois & Indiana represents about 93,000 people. Labor Department filings show that 37,000 — more than a third – are “agency fee payers,” meaning they have not joined the union and but still legally have to pay it fees.

Under a reversal of Abood, those workers would no longer be obligated to pay.

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