Courts vs. Unions: Speech and Association Rights under Fire

Source: Catherine Fisk, New Labor Forum, Vol. 23 no. 2, May 2014
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In 2012, the Supreme Court held in Knox v. Service Employees International Union, Local 1000 that a union representing government employees may assess money from the employees whom it represents to support political activity only if those employees first opt in to supporting political expenditures. The Court decreed that public sector employees have a First Amendment right to refuse to contribute money to support the political speech of their union and that states are required to allow such assessments only if the employees first opt to make a financial contribution. Knox, brought by the National Right to Work Legal Defense Foundation (NRTW), is one in a long series of Supreme Court cases delineating when a union selected by the majority of employees violates the First Amendment rights of dissenting employees. A case currently pending in the Supreme Court, Harris v. Quinn, brought by NRTW on behalf of a dissenting worker against the state of Illinois, asks whether state home care workers have a First Amendment right to refuse to pay for the services the union is statutorily obligated to provide them. Harris may enable the Court to overrule decades of precedent and declare that all government employment must be on a “right-to-work” basis.

Harris v. Quinn may enable the Supreme Court to declare that all government employment must be on a “right-to-work” basis.

The case has tremendous significance for the future of the labor movement. Historically, unions have found it difficult to survive in right-to-work states because employees—like everyone else—are reluctant to pay for services they can get for free. Moreover, while no one seriously expects it to decide that collective bargaining violates the First Amendment rights of non-union employees, if the Court finds it unconstitutional to require employees to contribute money to support union speech on behalf of employees whom the union represents, it may be hard-pressed to explain why allowing a union to bargain on behalf of dissenting employees is not also unconstitutional.