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The rest of Washington may have shut down for the snow, but not the U.S. Supreme Court. Instead, the justices heard arguments Tuesday in a case that could decimate public employee unions. At issue: whether nonunion members can be required to pay fees to help cover the cost of negotiating a contract from which they benefit.
In Illinois 10 years ago, 28,000 home health workers who care for adults with disabilities approved a union. Since then, hourly wages have nearly doubled, the workers now receive regular training, and they have health insurance. The state says as a result, the workforce has been stabilized and professionalized, and the government has saved money by keeping adults with disabilities in their homes.
Some workers, however, object to paying what is known as "fair share" fees. That is, even though they haven't joined the union, they are required to pay their fair share of the costs of negotiating and administering a union contract they benefit from. The Supreme Court has long allowed such fees to prevent nonmembers from free-riding on union members' dues. But in recent years, some of the court's conservatives have suggested they may be prepared to reverse this long-established principle. And Tuesday's case presents that opportunity.
On the steps of the court, Susan Watts, whose 27-year-old daughter cannot walk or talk, explained why she objects to paying fair-share fees. She joined the program, benefiting from the wage increases, after the workers were already unionized.
"I really didn't have a vote ... or a voice," she said. "It's mandated for us to pay this fair share, and the money is being taken from my daughter."
Watts believes that if there were no union contract, she might have more money for her daughter's medical care.
But that is not how the state, most of the workers, or most of the clients see it. The state says it actually has saved $632 million by creating a stable workforce to care for adults with disabilities in their homes instead of nursing homes.
And the workers and their patients say the union has transformed a program that previously had been hobbled by rapid turnover.
"I have a son that has cerebral palsy," said Flora Johnson, a home care worker who serves on the union's executive committee. "They tried to get me to institutionalize him years ago. But by the union coming in, he got a chance to stay home with his family."
Many of the workers' patients, or customers as they are known, were also on hand Tuesday; among them, Rahnee Patrick, who sat calmly in a wheelchair as the snow pelted her hat and coat.
"I had a personal assistant come to me at 5 o'clock in the morning in my house," Patrick told the crowd gathered on the snowy steps of the Supreme Court. "She rode an hour in the snow, from the North Side of Chicago. Why was she so dedicated? Not because I'm lovely, but because she gets a really good wage, and the wage came from the unions being able to collectively bargain. I can actually go to work, and it's because of her being able to pay her own bills that I'm able to pay my bills."
Inside the Supreme Court chamber, the debate was equally passionate.
Lawyer William Messenger, of the Right to Work Legal Defense Foundation, contended that requiring Susan Watts and others to pay fair-share fees violated their First Amendment rights.
"Are you saying that bargaining over wages and benefits in the public sector converts the process into something more?" asked Justice Ruth Bader Ginsburg.
"Yes," Messenger responded.
Under that reasoning, everything is "always a matter of public concern," said Justice Antonin Scalia. "Suppose you have a policeman who is dissatisfied with his wages. So he makes an appointment with the commissioner. ... He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary, 'I don't want to see this man again.' Has he violated the Constitution?"
"No," Messenger answered, but, "Once you have the collective, it would start to become a matter of public concern."
Justice Sonia Sotomayor asked if the state could, instead of forcing fair-share fees, pay more to union members. Messenger said yes.
Scalia noted that some private employers think it's in their interests to deal with a single union and require all the people that they hire to at least pay fair-share fees. "Why can't the government have the same interest?"
Sotomayor followed up, suggesting that if any of these people disagree with the union position, they can speak out.
"Are you taking the position that there cannot be an exclusive bargaining agent if there are any dissenters who don't want to be represented by a union?" Ginsburg asked.
Messenger demurred, saying that issue is not presented in this case.
Justice Elena Kagan interrupted, calling Messenger's argument "radical" and saying it would "radically restructure" the way workplaces across this country are run. Kagan noted that for the past 65 years, every state in the nation has debated whether to be a right-to-work state, with no mandatory fair-share fees, or a state that requires such fees. "Your argument," she told Messenger, is that the debate should never have taken place because, "in fact, a right-to-work law is constitutionally compelled."
Justice Stephen Breyer chimed in: You're asking the courts of the United States to fashion a "new special labor law for government employees" using "the First Amendment as a weapon."
If Messenger's attempt to reverse more than a half-century of labor law met resistance in some quarters, when the other side rose to make its arguments, some of the court's conservatives made equally clear their antipathy for labor unions.
"What I don't understand," said Justice Samuel Alito, "is why the union's participation in this is essential. ... Why do they need to have the union intervene here?" All of the benefits negotiated by the union could have been granted unilaterally by the state.
Alito suggested that former Illinois Gov. Rod Blagojevich, now in prison on corruption charges, recognized the union in exchange for a large campaign contribution. Solicitor General Donald Verrilli replied that in fact the union recognition program was enacted by large bipartisan majorities in the state Legislature
"In an era when government is getting bigger and bigger," said Justice Anthony Kennedy, "suppose the young person thinks that the state is squandering his heritage on unnecessary or excessive payments or benefits." Can the union "take money" from an employee who disagrees with the union on such "a fundamental question"?
Lawyer Paul Smith, representing the union and the state, replied that the consequences of doing away with the fair-share fee might well be that nonunion members would be paid less or would have to join the union in all respects, including paying for the union's overtly political and campaign speech.
The key point, said Verrilli, representing the federal government, is to look at the court's consistent precedents. Under those rulings, he said, when the government is acting as an employer, its "interest in the effective and efficient carrying out of its own operations is entitled to very substantial weight" — more weight than it is entitled to when it is regulating the citizenry in general.
Chief Justice John Roberts reiterated a question he had asked repeatedly: Does Medicaid control the rates paid to workers?
No, replied Verrilli. The federal government provides funds. The state provides funds, and under this program the state is given considerable latitude to set wages, as long as it is saving money when compared with institutionalized care.
A decision in the case is expected by summer.