Monday, June 30, 2014
Supreme Court's Harris Decision
The Supreme Court just announced in Harris v. Quinn that it will not apply Abood to the employees at issue. In other words, the dissenting employees cannot be required to pay any dues. Interestingly, although the Court has lots of strong language questioning Abood, it refuses to overrule it. The key is that the employees here are "partial public employees," to whom Abood doesn't apply. Very odd distinction.
My guess is that the four Justices couldn't get Kennedy to join in overruling Abood. In fact, the language attacking Abood sounds a lot like a majority decision that was set to overrule it but was undercut by a change of heart by one Justice. Of course, it's impossible to know for sure (indeed, no Justices wrote a concurrence to overturn Abood), but it's possible that the ramifications of overruling Abood gave Kennedy (or others) pause. Among those, think about what would've been raised had Adood been overruled:
- The holding would liekly have been applied in the private sector. If opt-in was constitutionally required, it would almost certainly have applied to private workplaces, as long as the NLRB's enforcement of union security clauses is considered state action. However, the majority does briefly note that the issue is more troublesome in the public sector than in the private sector.
- Would overruling Abood open the door to minority (or "members only") collective-bargaining? This question goes to the heart of the exclusivity regime that, up to now at least, has been the foundation of modern American labor law. The NLRB has been reluctant to act on the arguments of Charlie Morris and others that the NLRA imposes on employers a duty to bargain with minority unions. If opt-in was the new regime, the Board might well have finally acted.
- Bye, bye duty of fair representation? If the Court held that is unconstitutional to require dissenting employees to pay for representation, would it also be unconstitutional to make unions provide services to those employees for free? Now that unions--like corporations--are basically people for First Amendment purposes (see also Hobby Lobby from today), the logical answer would be that the duty of fair representation to dissenters falls away.
- Building on the concept of stronger First Amendment protection for unions, there are several limitations on union expressive conduct/speech that would be open to challenge. The 8(b) restrictions on secondary boycotts and picketing are particularly vulnerable. Up to now, they have been upheld because they supposedly involve more conduct than speech and have economic impact. But those arguments seem to have lost their luster over the last few years in other contexts. Will unions finally be moved to go on the offensive with these arguments? (It would seem they have little to lose.) If so, will the Court be receptive?
All in all, public-sector (and probably private-sector) unions dodged a huge bullet today. Honestly, this is as good an outcome as unions could've realistically hoped for.
-JH
https://lawprofessors.typepad.com/laborprof_blog/2014/06/supreme-court-requires-public-sector-opt-in-in-harris.html
Comments
I share Jeff's reading that at least one member (probably Kennedy, but perhaps Scalia) wasn't ready to overturn Abood in this case becase a much less controversial resolution was available. What struck me more, however, was the willingness of all five to join the opinion's criticism of the Abood "anomaly." The dicta cuts the legs out from under Abood. Any of the five who really wanted to preserve Abood could have concurred without joining that portion of the opinion. If the Court were to face a clear challenge to Abood where there was no easy out, I'd expect these five to overturn the precedent.
At the core of this debate is the exclusivity principle itself. That's what ties together Jeff's first three bullet points. Any academic interested in getting ahead of the curve on this issue would be smart to write an article reexamining the bases for that principle.
Note, too, that the majority was concerned that there was no empirical evidence in the record for the state's assertion that labor peace and effective bargaining required the agency shop. The same concern would arise in any challenge to exclusivity. The earlier cases accepted those arguments on faith, as did Congress in 1935 (and in the railway legislation). This Court won't.
Posted by: Dennis Nolan | Jun 30, 2014 9:33:10 AM
Matt, I understand that there is a difference between public v. private, although I'm not sure which one you're noting. Is it the government action requirement? Or is it the fact that public-sector bargaining differs from private sector (which the Court noted). Either, it seems to me if the Court holds that opt-out violates public-sector employees constitutional rights, the road to the private sector is a very short one. Not required, but basically if they overrule Abood, I don't seem them stopping there unless there is a change in Justices.
Posted by: Jeff Hirsch | Jun 30, 2014 11:21:37 AM
Jeff -- I disagree that overruling Abood would mean overruling the NLRA's enforcement of union security clauses. One is a contract between two private parties, while the other is a contract between a union and a government entity. That seems distinguishable to me, although I'd be interested in hearing your thoughts.
As for members-only bargaining, I'd be interested to see if states might experiment with this model, given the shakiness of Abood and the hostility towards mandatory union dues. The home health care workers are an unusual case, given the role of Medicaid reimbursements, but it might make sense for states to create a members-only option and see how it works in practice.
Posted by: Matt Bodie | Jun 30, 2014 8:50:08 AM