I’m kidding, kind of. I have no love for Justice Scalia, which most
people know because the man doesn’t think women are covered by the Fourteenth
Amendment, so I’m a bit skeptical of his aid. So imagine my surprise
when I get an email from Labor Notes, written by Moshe
Marvit, about how Scalia is defending union sin the Harris v. Quinn case.
The case is about whether or not Illinois’ home healthcare workers are
public employees, which then determines whether they are permitted to join
public-sector unions. Part of this is that Illinois allows public-sector unions
to employ exclusive representation to all employees, which means they can
charge them a “fair share” fee to employees who don’t join the union, but who
benefit from the collective bargaining agreement. The case presents broader
questions including whether any public-sector union should have this right. According
to the SCOTUS
blog, there are two issues at play: Whether a state may, consistent with
the First and Fourteenth Amendments, compel homecare providers to accept and
financially support private organizations as their exclusive representation on
behalf of pay negotiations, and whether a lower court was wrong in holding the claims
of providers.
Cornell Law
offers a fairly detailed explanation of the case written and edited by Jordan
Kobb, Craig G. Steen, and Z. Angela Lu. Of course a lot of this has to do with Abood v. Detroit Board of Education,
which said Illinois had a legitimate interest in “labor peace.” Quinn side says
labor unrest can lead to public problems, while Harris supporters say that Abood was intended to protect
individuals from being forced to support political organizations they oppose,
which is required y exclusive representation. So union dues enable unions to
have more political power, while not requiring fair share fees leaves unions
providing representation for those not contributing and then there is the “free-riding”
problem. Revisiting Abood would have
long reaching consequences for organized labor.
The National Right to Work Legal Defense Foundation (NRTW), an anti-union
group who aim to “eliminate coercive union power and compulsory unionism abuses
through strategic litigation, public information and education programs, brought
the challenges. NRTW attorney William Messenger argued that exclusive
representations and fair share fees by unions violate workers’ First Amendment
rights. Messenger claimed that public employee unions bargain over matters of
public concern, and the fees are contributed to the speech, which the workers
might not agree with.
This is when Justice Scalia smacked Messenger down. Scalia questioned the
premise of the NRTW’s case, which set the tone going forward. Scalia presented
a hypothetical about a police officer who asked for a raise several times, and
was denied access to the police commissioner. The police officer did not have
his rights violated because the Supreme Court has recognized the government has
a wider latitude in dealing with employees than with citizens. The police
commissioner refusing to see the police officer didn’t violate the officer’s
rights and neither did the healthcare workers fair share fees.
Justice Kagan suggested that Scalia believed the NRTW position was valid,
and Scalia corrected her, “I want to hear the answer, too, because, contrary to
what Justice Kagan suggests, I didn’t say your First Amendment argument was
valid….I said at least it was a comprehensible argument.”
Messenger then went on to say that homecare workers pay negotiations is
not internal workplace speech, but instead political speech, which Scalia
smacked down as well. Scalia said, “Why isn’t it? I mean, it is for private
employers.” He continued to say, “There are some private employers who think
they’re better off with a closed shop and they just want to deal with one union…They
do this as private employers because they think it is in their interest as an
employer. Why can’t the government have the same interest?”
These are fairly shocking statements coming from Scalia. Marvit argues
that in a state’s rights context these statements are a bit more expected. The
case is about whether a state can make their own police choices, which is a
federalist argument.
Needless to say, which side I fall on *Labor, always labor* I also
suspect JJ will put something
up on this case, so I won’t prattle on too long, instead I’m going to focus on
Scalia. First, I wish Justice Kagan had smacked him, but then again he may have
realized what he was doing and run back to the right. When looking at Scalia’s
comments as state’s rights (frustrating and at times scary) it does bode well
for team labor. Also, I’m liking him drawing comparisons between government and
private companies. I know, I know, we don’t want the government run like a
corporation, but the reality is we’re already falling down that rabbit hole,
and if corporations are going to be considered people under the law, with a
right to religious freedom then the government, which includes the separation of
church and state, might be something to keep in mind as they come for women and
gays.
