Tuesday, January 21, 2014

Harris Oral Argument

Supreme CourtThe Supreme Court heard oral arguments to day in Harris v. Quinn.  According to SCOTUSblog, the expected attack by conservatives against  union mandatory dues occurred.  The surprise is the Justice Scalia apparently exhibited less enthusiasm for reversing Abood than his conservative colleagues.  In contrast, the liberal Justices apparently showed real concern that the Court would outlaw public unions ability to seek dues from all employees they represent.

To the extent that there's a silver lining (and I'm not sure there's one at this point), the argument seemed to focus on the uniqueness of public sector collective-bargaining.  In particular, several Justices (with the apparent exception of Scalia) seemed receptive to the argument that public-sector unionism is more about affecting public policy than typical collective bargaining.  I don't buy that argument and, even if I did, I'm not convinced that under the Court's precedent, it would mean that mandatory dues is prohibited by the First Amendment.  But that appears to be where several Justices are headed.  Whether there a 5 of them is the question.  Even if there are, the tenor of this argument suggests that the ruling will not affect the private sector.  For now at least.  Which is not to say that eliminating mandatory dues in the public sector won't be a significant harm to the labor movement.

Hat Tip:  Patrick Kavanagh






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Question: If eliminating forced dues for public-sector employees would cause "a significant harm to the labor movement," what does that say about the viability of public-sector labor unions? Doesn't it concede sub silentio that public-sector labor unions do not provide value for the dues dollar, as assessed by those who must be forced to "pay" dues (given that in places like California, Michigan, New York, Ohio, Illinois, Pennsylvania, and others, it is involuntarily seized from nonmembers' paychecks)?

Posted by: James Young | Jan 22, 2014 9:50:00 AM

No, it says that allowing employees to free ride hurts public-sector labor unions.

Posted by: Jeff Hirsch | Jan 22, 2014 10:50:48 AM

As Justice Kennedy noted yesterday, "free ride" is an epithet. It's also one that's inaccurate, so long as unions lobby for and jealously guard the privilege of monopoly bargaining. You can't buy a sports car, and then credibly complain about the cost of high-octane gasoline.

Posted by: James Young | Jan 22, 2014 11:57:04 AM

The union in this case did not "buy" free riders. You and your colleagues are trying to force that choice on the union and employees in the future. The union had previously agreed to represent employees based on the rule that, with the consent of a majority of employees, everyone who receives representation will have to pay something.

Moreover, right-to-work is the definition of a free rider relationship, as even that paragon of liberalism, Milton Friedman, long ago conceded. You can call it what you want, but an employee who receives union representation without paying is free riding. It is what it is.

Finally, someone who regularly uses terms like "forced unionism" and "involuntarily seized" dues has got some chutzpah to complain about the term "free ride" in this situation.

Posted by: Jeff Hirsch | Jan 22, 2014 1:43:48 PM

I have been in the labor movement for almost a decade, and have never heard my fellow union folks lobbying to hang on to exclusive representation. You always raise that point, but I just don't see it as a reality. Most union leaders I know would love to have minority bargaining, and let nonmembers fend for themselves.

Posted by: Jared Groas | Jan 22, 2014 1:53:29 PM

Chutzpah, Jeff? Soooo, you're entitled to use your euphemisms and epithets, and you don't expect response in kind? Wow.

And Jared, they do. Not fewer than three Supreme Court decisions make clear that unions retain the right to refuse monopoly bargaining powers, IF they choose to. That it is an exceedingly rare occurrence --- I know of one, and perhaps two, in 25 years of practicing law --- speaks volumes.

Posted by: James Young | Jan 23, 2014 5:22:21 PM

James. Come on! If they give up monopoly bargaining powers they lose all rights under the NLRA. Additionally, if an employer recognizes and bargains with a minority union - they are breaking the law. So, yes, union's do not want to give up all rights to everything and simply be social clubs. Give minority unions the same rights with respect to the members, and the unions will easily give up exclusive representation.

Posted by: Jared Gross (formerly known as Per Son) | Jan 23, 2014 6:33:58 PM

Public employee unions are not under the NLRA. In Minnesota, we're under PELRA laws, written in 1971 and modified several times after. As an AFSCME member at a County level, we provide grievance and arbitration representation to everyone covered by our contract, without awareness of membership status. Our fee payers are not able to attend membership meetings, vote for local union officers, or partuicipaste in our contract vote. They are covered by the contract that members accepted after the last round of negotiations with our employer - all rules pertaining to seniority, benefits, wages, etc. apply to member and fee payer alike.

Posted by: Wes Volkenant | Mar 3, 2014 1:58:56 PM

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