UNIONS
have never been uncontroversial in American society, but the battles
over labor have grown fiercer in recent years: Witness the fight over
public-employee unions in Wisconsin, or the 2012 decision by Michigan
lawmakers to join the ranks of “right to work” states.
On
Monday a 5-to-4 majority of the Supreme Court fired its own salvo in
the war on unions. Though its decision in Harris v. Quinn was narrow,
saying that, in some cases, unions could not collect fees from one
particular class of public employees who did not want to join, its
language suggests that this may be the court’s first step toward
nationalizing the “right to work” gospel by embedding it in
constitutional law.
The
petitioners in Harris were several home-care workers who did not want
to join a union, though a majority of their co-workers had voted in
favor of joining one. Under Illinois law, they were still required to
contribute their “fair share” to the costs of representation — a
provision, known as an “agency fee,” that is prohibited in “right to
work” states.
The
ability of unions to collect an agency fee reflects a constitutional
balance that has governed American labor for some 40 years: Workers
can’t be forced to join a union or contribute to its political and
ideological activities, but they can be required to pay for the cost of
the union’s collective bargaining and contract-administration
activities.
The
majority in Harris saw things differently. Making workers pay anything
to a union they oppose is in tension with their First Amendment rights —
“something of an anomaly,” in the words of the majority. But the real
anomaly lies in according dissenters a right to refuse to pay for the
union’s services — services that cost money to deliver, and that put
money in the pockets of all employees.
Once
selected by a majority of workers in a bargaining unit, a union becomes
the exclusive representative, with a duty to fairly represent all of
them. That is the bedrock of our public and private sector labor laws.
Unless
everyone is required to pay for those services, individual workers can
easily become “free riders,” taking the benefits of collective
representation without paying their fair share of the costs. Not only
dissenters but any employee who wants to save a buck can “free ride.”
The net result may be that the union cannot afford to represent workers
effectively, and everyone suffers.
Consider
the home-care providers at issue in Harris. These workers, who are in
one of the fastest-growing and lowest-paid occupations in America, are
generally employed solely by individual customers, even when their wages
came from public funds like Medicaid. Alone, they were stuck with low
pay and meager benefits, and states faced labor shortages and high
turnover.
Several
years ago Illinois, like several other states, took on the role of
joint employer, along with individual customers, of the care workers.
That enabled them to vote on joining a union. They did so, and as a
result nearly doubled their wages and secured state-funded health
insurance, as well as training and safety provisions.
All
of Illinois’s in-home care providers benefit from union representation.
Until Monday, all were required to pay a modest fee for those services.
But now workers can “free ride.”
While
a majority declined to strike down agency-fee arrangements for
“full-fledged” public employees, as the petitioners had requested, and
as unions had feared, the majority makes clear that such fees now rest
on shaky constitutional ground, at least in the public sector, and are
vulnerable to broader attack in the future.
The
ability of unions to survive rests on whether they solve the “free
rider” problem. That is why mandatory fees have been a critical
battleground for unions and their antagonists for over 70 years. The
antagonists have won many of those battles, beginning with the
state-level “right-to-work” laws that bar any mandatory union fees.
The
First Amendment framework used by the “right to work” movement — and
now by much of the Supreme Court — to mount this attack is something old
masquerading as something new. Similar arguments were made during the
19th century, when rising inequalities between individual workers and
increasingly large-scale industrial employers led workers to invent
unions and collective bargaining. For decades, employers found a willing
ally in the court: When Congress or state legislatures passed laws
protecting workers’ freedom to organize and bargain collectively, the
court struck them down in the name of “liberty of contract.”
This
changed in the 1930s, when the New Deal court finally conceded the
constitutional bona fides of “industrial democracy” through majority
rule. But now the court’s conservative majority has taken a bold step
backward, recasting the individualist crusade as a battle between
compelled speech and the right to refrain from speech — between
individual dissent and collective compulsion. But in substance it is the
same old fight between the right of workers to bargain collectively and
the individual liberty of contract.
Unions
are already reeling. At a time when workers are losing economic ground,
we should be looking for ways to strengthen their ability to join with
co-workers and bargain collectively to improve their lot. Instead, the
court in Harris sided with those who seek to weaken it further.
Correction: July 3, 2014
An earlier version of this article mischaracterized Michigan’s 2012 decision to become a “right to work” state. It was made by state lawmakers, not directly by voters.
An earlier version of this article mischaracterized Michigan’s 2012 decision to become a “right to work” state. It was made by state lawmakers, not directly by voters.
Cynthia Estlund
Catherine A. Rein Professor of Law
New York University School of Law
40 Washington Square South, 403B
New York, NY 10012
40 Washington Square South, 403B
New York, NY 10012
Telephone: (212) 998-6184
Facsimile: (212) 995-4590
cynthia.estlund@nyu.edu
NYC OTB, now deceased, and the public benefit corporations of New York State present labor issues that may be unique to NY?
Long Island Business News
At least one employee of Nassau County Off-Track Betting is questioning whether the head of his employee union, a member-elect of the Suffolk County Legislature, should have a say in Suffolk OTB business.
NYC OTB, now deceased, and the public benefit corporations of New York State present labor issues that may be unique to NY?
Long Island Business News
Suffolk,
Nassau
OTB probe ethics conflict
by David Winzelberg
Published: November 24th, 2013
At least one employee of Nassau County Off-Track Betting is questioning whether the head of his employee union, a member-elect of the Suffolk County Legislature, should have a say in Suffolk OTB business.
Teamsters Local
707 President
Kevin McCaffery, whose union represents about 200 Nassau OTB
workers,
was elected earlier this month to serve as a Suffolk
legislator
representing the 14th District. In a letter last week, Nassau
OTB
cashier Jackson Leeds alerted the Suffolk County Ethics Board
to
McCaffery’s possible conflict of interest.
“As a Suffolk County legislator, his duties are to the people
of
Suffolk County,” Leeds wrote. “He cannot simultaneously
represent the
interests of employees of Nassau OTB, a Nassau County public
benefit
corporation.”
McCaffery told LIBN he doesn’t think the two counties’ OTBs
are in
competition with each other and he doesn’t see his role as
union leader
for Nassau OTB workers as a conflict with issues surrounding
Suffolk
OTB.
“If anything, I have the background of dealing with Nassau
OTB, which
gives me more insight on the subject than any other legislator
out
there,” McCaffery said.
When asked if the legislator-elect’s union job appeared to be
a
conflict of interest, Nassau OTB chief Joseph Cairo said, “If
you
really want to stretch it. But I don’t see anything that’s
apparent to
me.”
Cairo added that he’ll instruct the Nassau agency’s counsel to
review
the situation.
Leeds, a 10-year veteran of Nassau OTB, complained that both
union
officials and county OTB management have been too focused on
the 1,000
video lottery terminals planned for each county’s OTB and
they’re not
paying enough attention to current operations.
“They never worked behind a window,” Leeds told LIBN. “They’re
out of
touch with the bettors of Nassau County.”
Internet wagering and dwindling handles – the overall money
being
wagered – have prompted a consolidation in Nassau OTB’s
operations in
recent years; there were 15 betting offices in Nassau in 2003,
and now
there are eight. Suffolk OTB, which has seven branch offices,
filed for
bankruptcy last year.
These days, according to some analysts, OTB offices exist
largely for
political patronage – another reason, according to Leeds, that
the
Nassau union chief shouldn’t mix one business with the other.
“Union leaders should not be politicians,” he said. “OTBs are
run by
politicians. Being political and doing public good aren’t
always
incompatible, but they often are.”
This isn’t the first time a Long Island legislator’s OTB ties
have
become an issue.
In May 2000, Gregory Peterson, then-president of the Nassau
OTB, sued
to prevent Nassau County Leg. Roger Corbin from voting on
appointments
to the Nassau OTB’s board of directors. Because Corbin was
employed as
a branch manager for New York City OTB and a member of
Teamsters Local
858, which then represented all employees of Nassau OTB,
Peterson
alleged Corbin’s legislative role posed a conflict of
interest.
A New York Supreme Court judge issued an injunction preventing
Corbin
from voting on OTB appointments, but Corbin appealed and the
lower
court’s decision was reversed. The Nassau County Board of
Ethics also
chimed in, determining by a 3-2 vote that voting on OTB
appointments
didn’t create a conflict because Corbin didn’t influence
policy or
engage in labor negotiations.
With McCaffery, some observers say it’s best to proceed with
caution.
Anthony Figliola, vice president of Uniondale-based government
relations firm Empire
Government
Strategies, said the legislator-elect may want to recuse
himself
from any votes concerning Suffolk OTB until the Suffolk County
Ethics
Board offers an opinion.
“OTB is a political football,” Figliola said. “It’s better to
stay out
of it, especially if you want to get things done in the
Legislature.”
David
Winzelberg
Reporter
631.913.4247
917.796.1801
wforbath@law.utexas.edu
Work (512) 232-1326
Fax (512) 471-6988
Office: JON 6.216
The University of Texas at Austin
727 E Dean Keeton Street
Austin, TX 78705
The University of Texas at Austin
727 E Dean Keeton Street
Austin, TX 78705
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