Here (with apologies for the conversational style) is a Q & A on Harris v. Quinn that I did with Salon’s excellent labor reporter, Josh Eidelson. The interview focuses on the potential implications of Harris, but Eidelson also asked an interesting question about how the Petitioners are characterizing the case:
The National Right to Work Foundation, which helped bring this case, has described it as an issue about “forcing homecare providers into union ranks.” What do you make of that line of argument?
Number one: There’s never a union unless the majority of the employees themselves affirmatively desire a union. What any state can do, what any private sector employer can do, is give employees a vote about whether or not they want a union – and then the principle of majority rule applies.
Number two: Even under majority rule, nobody can be forced to become a member of a union anywhere in the United States. What people can be required to do is to pay for representational services that they’re provided. The union has to represent everybody who’s in the bargaining unit, even the people who voted no. Along with that obligation on the union comes a requirement that everybody pay dues for the representational activity that the union is statutorily obliged to undertake.
To characterize that as people “being forced into union ranks” seems to miss some important nuance.
One other note: I suppose I can understand from a marketing perspective Salon’s use of Justice Scalia in the headline (“Scalia’s Golden Chance to Kill Unions”), but Scalia has actually been a more balanced voice in these cases than such a headline would suggest. As we’ve noted, Justice Scalia wrote an important concurrence in Lehnert that explains the sound reasoning of the Court’s prior jurisprudence on public sector union dues. As Scalia put it there:
Our First Amendment jurisprudence recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other. Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The ‘compelling state interest’ that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of ‘free-riding’ nonmembers; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is distinctive, however, about the ‘free riders’ who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry — indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others. Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.