- The Washington Times - Monday, June 30, 2014

The Supreme Court laid out a pathway Monday for eviscerating the financial power of public employee unions — though the justices stopped short of going that far in their ruling.

Justice Samuel A. Alito Jr., writing for the 5-4 majority, issued a narrow decision saying Illinois couldn’t force home health care workers to pay dues to a union. But in his complex opinion he seemed to invite a broader challenge, detailing a number of problems with the existing 1977 Supreme Court precedent known as the Abood case.

The National Right to Work Legal Defense Foundation said it already has exactly those kinds of challenges waiting in the pipeline.

“It is only a matter of time before the court will be given an opportunity to overrule Abood,” said Raymond J. LaJeunesse Jr., vice president of the foundation.

The percentage of Americans who belong to labor unions peaked in the 1950s at 35 percent and has fallen steadily since then, down to just 11.3 percent of the labor force in 2013. Public unions in particular have taken hits, falling from 7.9 million members in 2009 to just 7.2 million last year as Republican governors successfully trimmed the collective bargaining rights of civil servants.

Those public employee unions had hoped to enlist the growing legions of home health care workers to reverse the decline, but Monday’s decision puts a dent in that plan.

President Obama and his allies within Democrats and organized labor reacted with dismay, saying the decision was damaging enough as-is.

“This decision is nothing less than an effort to divide and conquer working people,” said House Minority Leader Nancy Pelosi, though she vowed to see unions thrive anyway. “No court case, however, will stop home care workers from standing together and fighting for good jobs and quality home care.”

Unions were even more harsh in their judgment.

“No one should be fooled into thinking that this decision is only about public sector workers. In doing the dirty work for the Koch brothers and their ilk, the high court lowered the bar that all employers will feel obligated to meet in compensating their workers,” said Larry Hanley, president of the Amalgamated Transit Union, which represents transit workers.

The ruling fell well short of the total devastation some unions had feared could result if the Supreme Court had issued a broader decision overturning Abood, which could have hobbled unions for teachers, firefighters, police and other government workers.

The case, known as Harris v. Quinn, hinged on the difference between private sector unions and those that represent public employees. The public unions’ activities inherently involve advocating for government positions, which means those who pay dues to them are supporting speech they may not agree with.

Under Supreme Court precedents, workers cannot be forced to pay for unions’ political activities, but can be compelled to pay some money to cover the unions’ collective bargaining, since even non-union employees enjoy the wages and benefits that the unions negotiate. Those are known as “fair-share” payments.

But several Illinois home health care workers protested after a union was formed in their state. The workers said they were being compelled, against their beliefs, to support activities lobbying for more government spending on health care.

Justice Alito sided with the workers.

“If we accepted Illinois’ argument, we would approve an unprecedented violation of the 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 that he or she does not wish to support,” he wrote in an opinion joined by the court’s other four conservative-leaning justices.

He said a key part of his ruling rested on the fact that the home health care workers’ wages are set by Medicaid and they are actually employed by the patients, so it’s not clear what benefits union representation was actually earning the workers — thus it wasn’t clear the dues were going to benefit them.

Justice Elena Kagan, writing the dissent for the court’s four liberal-leaning justices, said Justice Alito had to twist himself in legal knots to carve out an exception for the health care workers while not specifically overturning the Abood decision.

“Today’s opinion takes the tack of throwing everything against the wall in the hope that something might stick,” she said.

Justice Alito acknowledged potential flaws with Abood, raising seven separate potential problems with the 1977 ruling and providing the roadmap for a future challenge.

“Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see,” he wrote. “Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government.

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