In the 2012 case Knox v. Seiu, the Supreme Court went out of its way to cast doubt on one of the key supports for strong public-sector labor relations in this country—namely, fair-share representation fees. These fees—which pay only for shared representation costs, not political activity—are collected from all employees if a majority choose union representation. Union members pay the fee as part of their dues; nonmembers pay just the fee.
Again and again over the last half-century, the Supreme Court has upheld fair-share fees. In its seminal 1977 decision in Abood v. Detroit Board of Education, the conservative Burger Court unanimously upheld such fees in the public sector, based on precedents allowing them in the private sector. And the Supreme Court and lower courts have repeatedly relied on Abood to uphold not just public-sector fair-share fee arrangements but other common collective fees as well, such as integrated legal-bar dues and student activities fees.
The legion of resulting decisions reflects the common-sense understanding that every employee who benefits from a negotiated contract should contribute to the costs of securing that contract. No one is forced to join a union, but unions are legally required to represent all workers—even those who decide not to join. Educators and public employees who don’t want to belong to a union only have to contribute to the costs of the representation they receive. Every public employee who benefits from a negotiated contract should contribute to the costs of securing that contract. The current fair-share system is a good compromise that eliminates the unfairness that would result if some people had to pay more than others for representation, or if some people received benefits for free.
But that common-sense solution was seriously questioned by the majority in Knox. Although the technical question presented could have been answered without addressing Abood, the majority went out of its way to paint that ruling—a precedent that has been followed, cited, and relied on hundreds of times—as an “anomaly,” a decision that “approach[es], if [it does] not cross, the limit of what the First Amendment can tolerate.”
Not surprisingly, the Supreme Court’s newfound doubts about Abood prompted pundits to proclaim that the Court had taken a turn to the right. Writing in The American Prospect, legal scholar Garrett Epps said that Knox was “the Court’s Scott Walker moment.” Tying the decision to the recent surge of right-wing legislative initiatives—including Wisconsin’s notorious Act 10, which limited the power of public employees to bargain collectively—Epps wrote that “the conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time.”
And, of course, the Knox decision poured fuel on pending cases. One of those was Harris v. Quinn. Brought by the National Right to Work Legal Defense Foundation, Harris challenged an innovative Illinois statute akin to those enacted by nine other states, which all told gave a million home-healthcare aides a collective voice at work. The statutes reflected a cost-effective solution to the growing needs of elderly and other residents. By enabling them to remain at home rather than being institutionalized, these statutes saved the states hundreds of millions of dollars. That solution was possible because the bargaining process created by the statutes allowed the states to identify and address the common concerns of home-healthcare aides, which in turn reduced turnover, increased the quality of care provided, and boosted their wages above poverty levels.