New Orleans Unfortunately, the issue of home care workers building their own historic union in Illinois ended up before the Supreme Court as the National Right to Work Legal Foundation union haters tried to argue that union shop provisions allowing the payment of either union dues or servicing fees was somehow a breach of their freedom of speech. Reading the reports on the Supreme Court hearing on the issue, we may have gotten a couple of breaks, some expected, and some surprising, thanks to the overreaching of the rightwing.
The biggest stretch was arguing that paying for servicing fees somehow forced a dissenter who was not a union member into supporting lobbying objectives of the union. Justice Anthony Kennedy reportedly tried the stretch move saying that young workers shouldn’t have to pay if the union was seeking pensions which might more likely benefit older workers. Who believes that as a public policy issue anymore? Of course the real freedom of speech position would be that the worker should join the union where she could argue forever and a day against the position, not the question of their voluntary decision to be passive on union positions and affairs by only paying the lower servicing fee.
The biggest surprise might be that even the irascible, unpredictable, and contentious staunch conservative Justice Antonin Scalia wasn’t buying this bull, arguing that there is a huge difference between what the state has the right to do with the employees it directs, in this situation homecare workers, as opposed to regulating public affairs and conduct. Justice Elena Kagan also seemed to be a leading voice in locking this backdoor effort to gut all public employee unions, by pointedly arguing that a decision in this case would overturn the stability of the entire public workforce and its unions throughout the country. If Scalia believes free riders should still have to pay dues, there’s hope for America!
And, if you think that these sessions turn on the decorum of sober and settled questions of the law, there was of course Justice Samuel Alito, who tried to muddy the water by casting aspersions on the fact that the recognition of the union came from the disgraced Governor Rod Blagojevich and the fact that the union had supported him with significant political contributions. If we are now going to say anything a politician does after receiving political contributions is going to be declared unconstitutional, then it’s not just labor relations that gets tossed in the can, but everything done by every level of legislative and executive branch from top to bottom.
One prediction I got right is that no one would touch the issue the Right to Workers had tried to raise about whether or not the state even had a right to establish that homecare workers were employees under its jurisdiction rather than independent subcontractors or workers exclusively under the direction of the client. From the reports, there seems to have been no interest in this “hail, Mary” legal argument that has long been settled in various ways since the 1980s, largely by Local 880, the predecessor union, in a number of decisions, reviews, and settled matters. Thanks to the old rule of following the money, law be damned, there was no way the Justices were going to say that if the state is paying the bills, which it was for these 20,000 Illinois homecare workers, that it could not hold them in firm embrace as state workers in whatever way it might chose.
Nothing is ever certain, but I think we can finally breathe a sigh of relief for homecare workers and their unions after decades of attacks.