Today’s ruling in Hobby Lobby is the type of decision that tends to suck the oxygen out of the room. For that reason, the important decision in Harris v. Quinn could be overlooked. At issue in the case is the viability of Abood v. Detroit Board of Education— the 1977 opinion held that the government could constitutionally condition a person’s employment in the public sector on the paying fees to a union. As I mentioned on CNN last night, this is a major decision that is being pushed from the coverage but deserves more attention. As anticipated, Justice Alito wrote the decision and ruled against the union.
The fear going into this week was an ominous head count by the union. There is an effort on the Court historically to spread out the opinions. Every Justice had written majority opinions from the January calendar. All except the justice that the unions least wanted available: Justice Alito. Alito had written the decision two years ago in Knox v. SEIU, that the government violates the first amendment in allowing public-sector unions to force nonmembers to pay a special fee for the purpose of financing the union’s political activities. Most worrisome was the statement in Knox that, while the Court would not “revisit” the first amendment issues more generally raised in this area, it did say that the objection that nonmembers were being allowed to “free ride” on due paying members is “generally insufficient to overcome First Amendment objections.”
This could be a major blow for unions. The Court could use this decision to drive a serious wedge into the labor force and seriously undermine the financial position of unions. The unions argue that they are required to negotiate the best deal for non-union members like these home-care workers. Since they benefit from such union representation, they should have to pay their fair share according to the union. The State of Illinois also supports this arrangement because it allows for a more efficient single-negotiating party in these talks. However, these workers advance an array of claims from petition claims to free speech claims to associational claims in being effectively forced to support the union.
While the ruling is limited to home-care workers, it has broader implications for unions. This is one of the fastest growing segments of the workforce and the new model for future labor forces. The unions just lost that potential for growth as well as the dues that are being lost to these new forms of employment.