U.S. Supreme Court Discusses Right-to-Work For All Public Employees

Capitol Confidential ^ | 1/25/2014 | Jack Spencer

[MichCapCon]

U.S. Supreme Court justices on Tuesday discussed turning the United States into a right-to-work nation regarding public sector unions.

The issue came up in a case related to union "dues skim" issues happening in Illinois, Michigan and other states around the nation.

"They were seriously considering reversing the Abood ruling," said Patrick Wright, senior legal analyst with Mackinac Center for Public Policy. "That was the case out of Michigan in which the court established that public sector employees could be forced to pay mandatory agency fees to unions."

Mackinac Center attorney Patrick Wright outside the Supreme Court Tuesday. In 1977, the U.S. Supreme Court ruled in the case Abood v. Detroit Board of Education, 431 U.S. 209, that a union shop, which is legal in the private sector, is also legal in the public sector. That case arose from a lawsuit in which public school teachers sought to overturn the requirement that they pay mandatory union fees on the grounds that they opposed public sector collective bargaining and objected to the ideological activities of the union.

Wright was at the U.S. Supreme Court in Washington, D.C., Tuesday where he watched oral arguments in Harris v. Quinn, a case involving the Illinois equivalent of Michigan's home health care dues skim.

In Michigan, Illinois, and several other states, home-based caregivers were subjected to forced unionizations. In Michigan, this happened during the administration of former Gov. Jennifer Granholm and involved a dummy employer and a mail-in election. in Illinois, it was done by executive order. Late last year, the U.S. Supreme Court agreed to take up Harris v. Quinn to determine whether such forced unionizations are constitutional.

The Mackinac Center Legal Foundation last year filed an amicus brief in Harris v. Quinn, supporting the arguments that such unionizations are not constitutional.

"Our brief centered on the situation with the home-based caregivers," Wright said. "But this morning the justices seemed focused mostly on the question of Abood and the agency fees. If the court were to reverse Abood it would essentially be the same as applying right-to-work to all public sector unions nationally."

Wright cautioned that attempting to predict what the high court might do based on oral arguments was like trying to read tea leaves. However, he said he thinks the final decision in Harris v Quinn would come down to one of the following three rulings:

It could rule that (1) Abood can be extended to home-based caregivers; (2) declare that it cannot be extended to home-based caregivers; or, (3) overturn the 1977 Abood ruling.

A decision is expected by midsummer.

Tuesday's oral arguments included exchanges between the Supreme Court justices and attorneys representing both sides in the case. Justice Anthony Kennedy and Paul M. Smith, who was representing the state of Illinois, which is defending the forced unionization, had one notable exchange,that was reported in the Court's transcript of the day's proceedings:

Justice Kennedy: "Let's assume that it's true, that a union's position necessarily affects the size of government. Is not the size of government a question on which there are fundamental political beliefs, fundamental convictions that are being sacrificed if a non-union member objects to this line of policy? Are there not other union proposals that say that state employee's salary must be a certain percentage of the total state expenditure? Does this not also involve the size of government, which is a fundamental issue of political belief?"

Smith: "Any outcome of a negotiation of a collective bargaining agreement involving public employees will involve the expenditure of public money in a variety of ways, and the outcome of that will, in that limited sense, at least, be a matter of public concern every bit as much and no more than when a government contractor . . ."

Justice Kennedy: "I'm not talking about a question of public concern. I'm talking about whether or not a union can take money from an employee who objects to the union's position on fundamental political grounds."

Smith: "Well your honor, that is what the Abood distinction between chargeable and nonchargeable . . ."

Justice Kennedy: "And I'm . . . I'm asking the justification for that under the First Amendment."

Smith: "Right. And . . ."

Justice Kennedy: "In . . . in an era where government is getting bigger and bigger, and this is becoming more and more of an important issue to more people."

[nikos1121]

Ilistened to that. Any reasonably sane individual would say that you can’t and shouldn’t force someone to pay dues to a union, that will use those dues, not for the common good of members, but to give to those candidates who will legislate for the good of the union...in this case the public union.

Is there a flicker...a flicker of hope that this will get over turned and we will see these public unions shrivel up> Would love to see a 9 to 0 ruling in favor.

[ken5050]

But you’d settle for 5-4, right?

[taxcontrol]

If unions are legal for the private sector, they should be legal for the public sector as well. However, they should ALWAYS be voluntary. The 1st Amendment provides the right of assembly and where there is a right to participate, there is also a right to NOT participate.

[FlingWingFlyer]

Any government that FORCES its employees to give money to union thugs (White guys, not racist.), isn’t much of a government. IMHO

[Macoozie]

Public sector employees are different in many ways from private sector employees. Most importantly, in this context, is that there is no opposition to negotiate with the public sector unions.
Vote seeking politicos promise taxpayer goodies to public union members in return for their votes. Who is watching out for the taxpayer?
It cannot be argued that the ballot box is the only recourse for over-taxed citizens. Without an opposing force, public sector unions are given everything they ask for and then take whatever they want.
The examples of over-promised benes and exploding tax roles are clear evidence of this.
BTW- even FDR thought public unions where a bad idea.

[MrB]

Without “public sector” unions,

unionism will be a tenth of its former self,
and donations to ‘rats will likewise be reduced.

I don’t see it happening.

[Usagi_yo]

They will take the middle road and say it doesn’t apply to home caregivers caring for family members as there is a difference between a general union member who joins a union to get a job and a family member taking care of the elderly or infirmed family member.

The liberals will sell the Unions out again soon enough. They’re banking on amnesty to inflate their membership now, and not unions as unions are dying.

[Sacajaweau]

I was a scab. The guys had no guts.

[4Liberty]

All the dues, by their nature, amount to “non-chargeable” (political) dues.
A compulsory union is an inherently political institution!

[ansel12]

"In 1962, President John F. Kennedy signed Executive Order 10988, establishing the right of federal workers to engage in collective bargaining."

[Theoria]

You don't have a 1st amendment right on private property[like here on FR]. That has always been part of assembly. Part of which, you are free to assemble and organize, but not on something you don't own. You can do that across the street at the park.

[zeugma]

Here's a really interesting exchange during oral arguments. Verrilli is from the Government arguing for the state.

=snip=

JUSTICE ALITO: Do you think that the specific factual background of what occurred here provides a basis for skepticism about Illinois' reason for adopting this?

GENERAL VERRILLI: I don't think so. When the legislation was enacted, it was enacted with a very large bipartisan margin, and I just don't think it would be appropriate, in the context of the government as manager of its own operations, to look behind and try to consider motive.  This is a choice that many ­­

JUSTICE ALITO: I thought the situation was that Governor Blagojevich got a huge campaign contribution from the union and virtually, as soon as he got into office, he took out his pen and signed an executive order that had the effect of putting ­­ what was it, $3.6 million into the union covers?

GENERAL VERRILLI: Whatever happened ­­

JUSTICE ALITO: That's the sequence; isn't that correct?

GENERAL VERRILLI: Well, I think the issue before the Court is the constitutionality of the statute that was enacted subsequent to that by a large bipartisan majority, and I don't think it would be appropriate to look behind the legislature's action to consider and try to evaluate its motives. And I think, under our Federal system, States get to make choices.  It's true, not every State does it this way, but many do. They do so for reasons of efficient management of their internal operations, and that's the principle that we think is of critical importance here.

JUSTICE SCALIA: They may do so because of that reason. You don't know what their reason is any more than I do. All you can say is that that might be their reason.
=snip=

Looks like Alito just accused the governor of Illinois of taking a bribe from his union buddies.