Tuesday, July 1, 2014


By David Bacon

OAKLAND, CA (7/1/14) -- By a narrow majority, the United States Supreme Court on Monday dealt a setback to unions for workers who take care of sick or disabled people in their homes.  The court's conservative majority decided that those unions could not require workers to pay a fee for representing them in negotiating higher wages and better conditions.

But unions had feared a much broader decision that might have ended bargaining rights for all workers in the public sector.  The court's more limited ruling, at least for now, did not extend that far.

"Today's ruling did not hand anti-worker extremists the victory they'd been hoping for," said Lee Saunders, president of the American Federation of State, County and Municipal Employees.  "It did not eliminate existing contracts ... but make no mistake - Justice Alito's opinion made clear that the relentless assault on workers' rights will not abate."

The decision arose in a case filed in 2010 by the National Right to Work Legal Defense Foundation on behalf of nine homecare workers in the state of Illinois.  Throughout the U.S. hundreds of thousands of workers work every year care for sick and disabled people in their homes.  Those individuals, or members of their families, hire the workers.  The money to pay their wages comes from the government, mostly a Federal program called Medicaid. 

In the first years of the last decade, public sector unions in Illinois convinced the state to set up a public body that would act as the employer of homecare workers in determining wages and benefits.  This same process was followed in recent years in nine other states, including California, Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Oregon, Vermont and Washington.

In 2003, approximately 26,000 workers employed in Illinois under this arrangement were then able to vote for union representation.  The vote was won by the Service Employees International Union (in other states similar votes gave representation status to AFSCME and the American Federation of Teachers). 

Once it represented the workers, SEIU then negotiated a contract.  "Before we formed our union, I made less than $6 an hour, but by uniting we are set to make $13 an hour by the end of the year," explained Chicago homecare worker Flora Johnson. 

Under a previous Supreme Court decision in 1977, Abood v. Detroit Board of Education, unions in the public sector can charge a fee to pay the cost of representing workers, including workers who are not members and don't pay union dues.  SEIU's contract with Illinois therefore required homecare workers to pay such a fee.

The Right to Work Fund suit sought to eliminate the fund requirement for all public sector workers.  Unions feared that this would serve as a pretext for a sweeping national roll back of public sector bargaining rights, as some state legislatures have implemented in Wisconsin and elsewhere in recent years.

It was clear in the majority opinion written by notoriously anti-union Justice Samuel Alito that this would have been his preferred outcome.  He questioned the 1977 precedent, and his opinion invented a category, "partial public employee," to justify excluding homecare workers from its coverage.  Even though the union negotiates wages and benefits for the workers, he questioned whether it performed any service worth payment.  He also said paying such a fee violated the prohibition by the U.S. Constitution's First Amendment on restricting freedom of speech, because it forced an anti-union worker to give money to a union.

His opinion was praised by Trey Kovacs of the rightwing Competitive Enterprise Institute, who said, "The ruling frees thousands of home care and child care providers from financially assisting government unions that they disagree with."

Judge Elena Kagan wrote the minority's dissent, and said there was no difference in law between home health care workers and traditional public employees.  Unions had a positive impact, she declared.  "Workforce shortages and high turnover have long plagued in-home care programs, principally because of low wages and benefits. That labor instability lessens the quality of care which in turn forces disabled persons into institutions and increases costs to the state."

Not only did higher wages reduce turnover, but "what may surprise many is that this arrangement is cheaper, with savings of $632 million, according to the state," she added.  Compared to the virtues of weakening unions, however, the rightwing justices were unmoved by these arguments of fiscal, much less social, responsibility.

In the face of Alito and the four conservatives, SEIU was defiant.  "No court case is going to stand in the way of home care workers coming together to have a strong voice for good jobs and quality home care," said SEIU President Mary Kay Henry.  AFL-CIO President Richard Trumka was equally angry:  "Make no mistake: the fate of workers cannot and will not be decided by one Supreme Court decision," he warned.

In the short run, the impact on unions representing homecare workers will be severe.  SEIU receives $3.4 million in fees in Illinois each year.  As some workers stop paying, it will have to maintain the same pressure on the state in bargaining with fewer staff and resources.  That in turn will make it easier for state governments to try to solve their budget shortfalls by reducing wages and benefits.  Sharper labor conflict is almost inevitable as a result.

And declining wages and benefits will impact, not just the workers, but the sick and disabled people who depend on them.  Rahnee Patrick, a home care consumer and advocate from ACCESS Living in Chicago, worries "I could lose [my homecare provider] if her wages and benefits don't keep up with the cost of living."

In the long run, the decision seems aimed at sections of the workforce in the U.S. where unions have been growing.  Homecare workers are mostly women of color, and have worked at the lowest possible wages for decades, and have therefore been very open to the idea of unionization.  That is also true for other groups of contingent workers who don't have traditional relationships with large employers -- day laborers on street corners, domestic workers, freelance writers, taxi drivers and others.

With homecare workers, unions have sought to make government responsible for their conditions, a solution that might work for these other groups as well.  At its recent convention in Los Angeles, the AFL-CIO made a commitment to work more closely with worker centers in this part of the workforce.

Employer groups have been increasingly hostile to workers centers and the rising union activity among low wage and contingent workers.  This Supreme Court decision reflects that hostility, and is intended to put new obstacles in the way of their efforts to organize and make big changes in their economic status.

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