Beneath the Veneer of Harris v. Quinn

Harris v. Quinn is a recent Supreme Court opinion, featured often on the news, holding that “partial” public employees – home health care providers – should not be “compelled” to join a union or, put in less charged language, to contribute to union representation in their workplace even when a majority of employees has voted for representation.

Now, the case was decided on very narrow grounds. The Court held in essence that partial public employees were not really employees of the kind that could be represented by the union. The National Right to Legal Defense Foundation (RTW), a group implacably opposed to the idea of “compulsory unionism,” was the moving force in this litigation and was hoping for a broader holding that no public employee should ever be required to contribute any amount whatsoever to support of the union in their workplace because public sector bargaining is inherently “political,” and no worker should be required to support any particular political stance in order to keep his or her job.

I deeply believe that RTW, at its essence, is hostile to the entire concept of worker solidarity or power, though its rhetoric is often steeped in protective shades of worker autonomy: “why should I as a worker be required to join a union?” Oddly enough, I have less concern with RTW than other voices on the Left, notwithstanding its fundamentally disingenuous tactics. There is no denying that government sometimes requires (either directly when it is the employer or indirectly when it applies labor law rules to private employers) dissenting nonmember employees in union-majority workplaces to support to some degree a union which they may oppose, as I will describe briefly below. RTW opposes this practice—at least rhetorically—on philosophical grounds. I, a friend of the labor movement, oppose the practice on strategic grounds.

First, I have never though it looked good even to elements within the working class to require membership or even payment of an agency fee.

Second, in my opinion, any union that relies on government power for support or dues collection is in big trouble in the long run. What the government giveth today it may taketh away tomorrow, and I simply do not trust or seek to rely upon the forces I believe have utterly captured government.

Finally, if a union really believes that ending the practice of requiring payment of dues or agency fees dues will cause members to stop paying dues, or nonmembers not to seek (eventually) membership, what kind of strength can that union actually have? Does anyone believe that such a union could, for example, motivate employees to take the risk inherent in collective action—the kind of risk that built the labor movement (think, for example, of the sit down strikes in Flint, Michigan) and that will soon be required again? You do not have to require working class fire breathers to pay dues and non-members in a workplace in which the union diligently fights for members will want to join. If this is not the state of things unions will lose every big fight since success comes from the working class intensity of the membership, not from the micro-tactics of leadership.

Back to Harris v. Quinn—to understand the case adequately a brief introduction to the law of union membership is required. Federal law has held that while one cannot be required to join or remain a member of a union as a condition of employment, one can be required to pay an “agency” fee. (By “required,” I mean that if I do not pay the agency fee the union may lawfully request the employer to fire me and an employer may lawfully do so). There is a continuing debate as to what should be included in this agency fee—that is, as to what non-union-members should be “charged” for.

Most impartial observers have more or less conceded that non-members should for reasons of fairness pay for the costs of “representation.” Why? A union elected to represent a bargaining unit is accountable to everyone in the bargaining unit, members and nonmembers alike, under a legal “duty of fair representation.” Thus, if a non-member is fired from her job, the union has a duty to represent her as if she were a member. If the union could not receive compensation for such representation, the non-member would become a “free rider” on the union dues of everyone else in the bargaining unit. So far, so good.

But suppose the union supports a political candidate I do not support? (I use Al Gore in my “youngish” law classes so as not to stir up any current political passions.) Should my dues be used against my will to support Al? The law says “no.” Should I be charged for the expense of maintaining shop-stewards in my particular workplace whose job it is to enforce the collective bargaining agreement applicable to me? The law says “yes.” Fine. But there are many, many examples in between in which the union will argue that its activities, although involving more than my particular workplace, inures to the benefit of all workers, and therefore to me. Those opposing the “charge” (and the union) will say that disputed activity exceeds the scope of my workplace, and is therefore not lawfully chargeable (for example, the costs of organizing other employees in the same industry but not in my workplace). In addition to this complexity there are questions as to what an objecting employee (respecting some “charge”) must do procedurally. Must she opt out of the charge? If so, how?

The law I have just described is tedious and, frankly, energy sapping. More importantly, it is distracting and essentially pessimistic. Received wisdom on both the Left and the Right was that a full victory by the RTW forces would have sounded the death knell of the labor movement. To that I respond, expletive, expletive. I simply do not believe it.

Where there is an overreaching boss there will be a resisting worker. I know because I am from the working class, and we built America, and we did a good deal of the building before there was any protective federal labor law. It is about what we are willing to do not what they are determined to take away. Back to work.

2 Responses

  1. Maynard Seider

    I grew up, the son of a postal worker, and learned that, while they weren’t as bad as scabs, “free riders” resided somewhere in the purgatory of organized labor. Michael Duff argues that the labor movement would do better without union or agency shops, that we become a nation of “right to work” states. And there is theoretical merit to his argument that not forcing employees to pay union dues would mean that the union itself would have to exert itself more to convince its members that it is worthy of supporting. However, given the reality of today’s political climate, with union membership down to figures not seen since the 1920s, and with both political parties virtually controlled by Big Business and the one percent, a slap down by Harris vs. Quinn not only hurts, but adds to the overall poisonous atmosphere directed at unions. Just as an example of the changes in American politics to organized labor, let us remember that FDR told workers it was their duty to join a union, while our current Democratic president continues to push so-called free trade agreements that hurt American workers; refuses to push any legislation to help organized labor despite earlier campaign promises; and refused to take a stand during the heroic struggles in Wisconsin, staying out of the state and forgetting an earlier promise to join any picket line that would take away collective bargaining from American workers.
    Governor Walker and his backers had their victory in Wisconsin and union dues are not mandatory. Not surprisingly, union membership has dropped. Sure, the anti-Walker campaign made mistakes and the union movement has made grievous errors over the years, mostly by moving in a conservative direction, and by continually backing a Democratic Party, even as it becomes more anti-worker and anti-union. The kind of fight-back spirit that Michael Duff is calling for is not only admirable, but is desperately needed. I just don’t think that at this point in time taking another bite out of organized labor will automatically bring that about.

    1. Michael Duff

      Maynard — Thanks for the thoughtful response. Space permits me only a brief reply. First FDR did not encourage unionism, but workers thought he did, largely because of Blue Eagle at Work. Government support of unionism was largely a product of political expediency. In reality, business violently opposed unions through the “First” New Deal & by the Second New Deal, Government was already retreating. So I think it is wrong to say that the “official” Gov’t climate is the distinguishing feature of the two periods. What “won” labor rights was the sit down strike. The Gov’t acquiesced in consideration of the alternative. My essential response to your point is that what we have been doing has not been working precisely because we have relied too much on Government protection. I simply do not believe that labor law (like union security protections) creates working class power. Quite the reverse — exertion of working class power leads to labor law. But the law is never sufficient as a substitute for the reality of power. Once the power erodes the law will not be enforced. I’ve written about these subjects at some length if you care to visit my web page at the University of Wyoming College of Law. http://www.uwyo.edu/law/directory/michael-c.-duff.html

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