Editor's note: This contribution by the late journalist I.F. Stone first appeared in our January 1975 magazine.
On Monday morning, the Supreme Court issued an odd ruling in the biggest labor union case in years, Harris v. Quinn.
The conservative majority, ruled 5-4, that personal assistants in publicly funded Illinois home health-care, who are represented by the SEIU, do not have to pay their fair share of union dues if they choose not to be members.
So it was a blow to organized labor.
But it wasn’t as big a blow as it could have been, as Justice Elena Kagan noted in her dissenting opinion.
“One aspect of today’s opinion is cause for satisfaction, though hardly applause,” she wrote. While the conservative majority disparaged a 1977 Supreme Court case, Abood vs. Detroit Board of Education, that set the precedent in this case, it did not overturn that decision.
“That is to the good—or at least better than it might be,” Kagan said. “The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the nation.”
The majority’s decision, written by Samuel Alito, suggests that several of the conservative justices wanted to toss out Abood, which would have resulted, Kagan said, in “imposing a right-to-work regime for all government employees.”
But the majority instead made a narrow ruling. It took pains to draw a distinction between the personal assistants in Illinois, who “are almost entirely answerable to the customers and not to the state, as opposed to what it called “full-fledged” public employees. It ruled that those personal assistants did not have to pay fees to the union.
The case revolves around the “free-rider problem” that unions have had to deal with for a long time: people in the organized shop who choose not to belong to the union can still reap its rewards in higher pay and better benefits.
In the Abood case, the court ruled that that such people needed to pay an agency fee to cover the union’s work on their behalf, though not the union’s expenditures on political or ideological causes.
The logic of Alito’s decision expressed hostility to such an agency fee, not only for “full-fledged” public sector workers but for all workers.
“The agency-fee provision cannot be sustained,” he wrote, “unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join. No such showing has been made.”
In the future, unions in the private and public sector may, in some cases, be hard-pressed to show this, so employers may seize on this passage to further erode union rights.
And Alito also made a First Amendment argument that cast a shadow over the right of all unions to collect agency fees from nonunion members.
“Agency-fee provisions unquestionably impose a heavy burden on the First Amendment interests of objecting employees,” he wrote for the majority. “Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
But for some reason, he and his conservative colleagues stepped back from what Kagan called the “radical” move to overturn almost four decades of labor law. And so the union shop lives.