New Orleans These days news that the Supreme Court has decided to review decisions that involve labor unions is always cause for concern, but these cases are especially worrisome because they go to the heart of some of the few organizing successes that the labor movement has been able to construct over the last several decades, one involving employer “neutrality” agreements that when won have facilitated organizing victories, and the other dramatically attacking the organizing structure for home-care workers in Illinois and the more than half-million workers that have swarmed into SEIU and other unions in recent years.
The one thing that I doubt the Supreme Court will mess with in the Illinois case involving our old sister ULU local 880, now United Healthcare Illinois Indiana, is the fact that the union and the State of Illinois were able to agree that homecare workers supported by federal and state reimbursements were public employees for the purposes of wages and benefits and union representation first by executive order and then confirmed by legislative action. These co-employer situations are notoriously complicated but in the 1980s Local 880 was able to win these cases before the NLRB and sustain attempts to overturn at the Supreme Court level when private sector employers attempted to escape their unionization efforts by arguing the opposite, that all of their employees where public sector workers. Now this suit challenges whether or not workers under the state’s Department of Rehabilitative Services (DORS) are actually public sector workers even though there is no other employer relationship as there was in the NLRB cases. Importantly, the original cases for 880 were won by Craig Becker who is now speaking from vast experience in these matters as general counsel of the AFL-CIO. The Supreme Court will simply not be able to pretzel itself enough to tell a state that it does not have the authority to decide who its employees are, so let’s not worry about that quite as much.
On the other hand the National Right to Work Committee is drooling at the prospect of hearing a challenge to the ability of the union to collect fair share fees from nonmembers represented by the union in the 20,000 worker DORS unit. Observers are citing comments by conservative Justice Alito that freedom of speech requirements cannot be overridden by “free-rider arguments” that allow such collections. Once again the Supreme Court would have to leapfrog over a long bargaining relationship in Illinois between the State and Local 880 that created these relationships that then gradually evolved over 20 years to the 2003 events that created the final vote and then the collective agreement allowing this dues structure. There might be other states where the challenge might have more chances, but in Illinois the organizing and the political history is so clearly on our side, that to interfere in this state empowered and certified bargaining relationship, long supported by the majority of the workers themselves, would be a purely political, not a legal decision. I’m voting with 880 all the way on this one.
Neutrality agreements are more imperiled before the Court, because they are easier to confuse with the democratic tradition of campaigns and elections, even though there is no real comparability between a workplace vote and a public election. This is scary, especially when the anti-union forces are trying to paint the union as a bully over smaller employers. I would worry a lot about this case not because I think neutrality agreements will be outlawed, but because I think the Court now has an open window to modify what is possible, give employers more safe harbors, and just make it harder to win such agreements, which are already very difficult to manage for most unions in most organizing environments.
Nonetheless, there is no way to breathe easy on anything heading to the Robert’s Supreme Court where too often justice goes to die these days.