This year at the Supreme Court, organized labor lost a major case: five Justices decided that home healthcare workers—one of the fastest growing groups of unionized workers—were not “full-fledged” public employees. These “quasi-public” employees can no longer work under the standard “fair share” model of union representation; under that model, all employees are required to pay a “fair share” for union representation, and the union has a corresponding duty to represent (and benefit) all of the workers, whether they themselves voted for the union or not. Following the Court’s decision in Harris v. Quinn, this enormous group of workers is being shifted to a “right to work” model. The union retains its duty of representing every worker in the bargaining unit; however, no worker has to pay her “fair share” for that representation, regardless of how much they benefit.
The onerous rules laid out in Harris mean that labor unions face a rocky road ahead. However, workers and unions may have also won an important victory in a case that on its face had nothing to do with them. In McCullen v. Coakley, the Roberts Court once again expanded its vision of the First Amendment, striking down a Massachusetts law that protected women seeking abortions by requiring buffer zones around the clinic where protesters could not stand, usually for the purpose of “counseling” and intimidating women.
The rights of anti-abortion activists may seem worlds apart from the rights of workers, but the McCullen decision signaled another expansion of First Amendment rights that could benefit workers. Most people would likely be surprised to learn that if they wished to engage in a strike, picket, or boycott in their capacity as a worker, the law places severe restrictions on their conduct. For example, many public workers can face injunctions, fines, or even criminal charges for striking their employer. Private sector workers face similar penalties for certain types of pickets or boycotts against their employer or companies that do business with their employer. In 1984, labor law scholar James Gray Pope described the odd exclusion of labor from general First Amendment jurisprudence: “On the ladder of First Amendment values,” Pope explained, “political speech occupies the top rung, commercial speech rests on the rung below, and labor speech is relegated to a ‘black hole’ beneath the ladder.” The Roberts Court has done much to raise commercial speech out of its second-class status, but workers’ labor speech rights still remain in Pope’s “black hole.”
To see an example of the strange restrictions on workers’ First Amendment rights, one need look no further than the recent organizing efforts against Wal-Mart. After the United Food and Commercial Workers (UFCW) affiliate OUR Walmart staged coordinated demonstrations in the weeks before Black Friday, Wal-Mart brought a suit against the UFCW alleging that it had violated a provision of labor law that prohibits workers from picketing for more than 30 days if their goal is to form a union. Facing the real possibility of an injunction, followed by significant penalties, the union disavowed any intent to organize the workers and pledged not to engage in any picketing for 60 days.
However, if a pro Wal-Mart group were to stand alongside the union and encouraged customers to shop at Wal-Mart, or an anti-union group stood alongside the workers and encouraged the company to avoid unionization, or a human rights activist stood alongside the workers and carried the same message of poor treatment of workers, none of these would be forbidden from picketing for more than 30 days. Why? Because the First Amendment clearly protects their freedom of speech and assembly in delivering their message.