The Court’s Harris v. Quinn Decision Undermines Home Health Care and Further Weakens Collective Bargaining Rights
Monday’s Supreme Court decision in Harris v Quinn was destructive in several ways. It undermines the unionization that has been transforming home health care from a rock-bottom, minimum wage job with no respect and no benefits into something much better. That, in turn, could worsen the care provided the disabled by lowering pay, making the profession less attractive, and worsening turnover. The nakedly political decision damages the constitution and the credibility of the Court. And the majority opinion foretells even greater damage for public employee unionization and collective bargaining when the Court revisits these issues again.
The Court held that the historically disadvantaged , mostly female home-care workers (“personal assistants”) and their union have lesser rights than “full-fledged public employees” because the state is not their employer for all purposes—though it is for the crucial purposes of bargaining their wages and benefits. Because of that, in the Court’s view the employees’ union and the state don’t have a great enough interest in labor stability to enforce a provision in the collective bargaining agreement that requires all covered employees to pay their fair share of the costs of bargaining and enforcing the contract (an agency fee). Dissenting employees get a free ride, because in the Court’s view, their right not to pay the agency fee is more important than the right of the majority of home-care workers to have an effective union that will raise their wages far beyond the cost of the agency fee. That balancing is plainly wrong and reflects Justice Alito’s 19th century dislike of unions, his hostility to the government’s duty to “promote the general welfare,” and his contempt for majority rule. (So what if a majority of the employees voted to require the fair share provision?)
The Court’s opinion made no mention of the good that unions and collective bargaining have done for personal assistants and other direct care aides, nor how improved pay, training, and working conditions for providers reduce turnover and build a workforce that delivers higher quality care. Justice Alito’s majority opinion never acknowledges that unionization has raised pay and benefits for 500,000 of the workers he calls partial public employees, and that instead of earning the minimum wage, the Illinois workers in Harris v Quinn have a union contract that delivers $13 an hour pay with health benefits and state-provided training. The dominant constitutional right Alito identifies is the right not to pay for the union’s activities on behalf of its members, not to lobby or bargain for wage increases, not to pay a couple of hundred dollars in fees in order to get thousands of dollars in higher wages and benefits.
In fact, the Court sympathizes only with the notion that to the extent the union is successful in improving wages, it will raise the cost of Medicaid, which reimburses the home-care aides for the cost of their services. Alito’s analysis isn’t deep enough or honest enough to consider that making home care a decently paid profession benefits taxpayers in the long run by reducing turnover, improving the quality of care, and saving money by keeping more of the elderly and disabled out of more expensive institutional care.
Alito’s fundamentally dishonest opinion makes the Court look less like neutral interpreters of the constitution and more like Republican political operatives or tools of the corporations and right-wing billionaires who have been using every means available to weaken or kill the unions that oppose them. Elevating the right not to give financial support to a union’s effort to improve your pay to a preeminent position would be laughably ironic if it didn’t damage the right of thousands of others to join together to improve their own financial condition. How did the right to cut off your nose to spite your face become so important? But Alito’s claim that there is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party” is not only untrue, it is contradicted by the Court’s own opinion and decisions which permit states to compel attorneys to pay for bar association activities they oppose and state universities to compel students to pay activity fees to support organizations that express views the students bitterly oppose. Alito’s hypocrisy is astonishing and shameful. It is explained only by the fact that he values anti-union speech above any speech by the students or the attorneys in the other cases.
The Court chose not to overturn a 40-year old precedent, Abood v Detroit Board of Ed., that public employee unions and governments can enforce fair share agreements for what the Court now calls “full-fledged public employees.” But Alito laid the groundwork to shrink Abood’s protections and eventually to reverse it. In his words, “The Abood Court’s analysis is questionable on several grounds.” He claims the case seriously misconstrued earlier precedent, “fundamentally misunderstood” earlier holdings, failed to understand that public employee bargaining is really, at its core, political speech,” and didn’t understand that public employee collective bargaining would impose mushrooming costs on the government. Alito goes on to criticize Abood as impractical, as setting up impossible distinctions between chargeable and constitutionally unchargeable agency fees, and as based on unproved assumptions about the need for unions to be the exclusive representative of employees in a bargaining unit.
Clearly, Alito is aching to overturn Abood and strike down all public employee fair share agreements. It is only a matter of time. Public employee unions have five implacable enemies on the Supreme Court who will not rest until the ability of employees to band together for their mutual aid and support in the workplace is extinguished.