Saturday, May 24, 2014

Thoughts on the Supreme Court "fair share" case

I have little to say so far about the implementation of the union contract at UIC.  Mostly that's because there's a lot I don't know.  Partly, it's also because of what I do know, I don't know much is meant to be generally public knowledge and how much is not meant to be.  Of course, we're a public university, so I imagine everything will be public eventually.  But I think it's the better part of wisdom not to speak of that which I'm so ignorant anyway.

But one thing I'm less ignorant about is the pending U.S. Supreme Court case, Harris v. Quinn.  There's a lot I don't know about the case.  I haven't read any of the briefs or followed it very closely in the news.  But yesterday I did listen to the one-hour oral argument, which can be found here.  (For a rundown of the major steps in the litigation, click here.)

I'll confess that listening to the oral argument was, well, fun and exciting.  I imagine such arguments are made available as a matter of course in most or at least many cases, but this was the first time I've actually listened to one.

But the stakes are important.  Apparently, it involves a challenge to fair share provisions for public employees.  If I understand the challenge correctly, fair share is questioned because it compels people (in this case, members of bargaining units for public employees unions) to petition the government even if they disagree with the "petition," i.e., disagree with the union.  The defense to the challenge is, as best I can tell, based on the following points:
  1. Fair share for state-level public employees has been an established part of labor relations for at least some states for about 30 years.  This practice has been validated by federal case law.
  2. The state, as employer, has certain prerogatives to deal with its employees as employees in a way that it wouldn't otherwise have in dealing with its citizens.
  3. Fair share provisions, for the states that have them, represent the state acting as employer.
From listening to the oral arguments--and I realize the "real" arguments are actually made in briefs and in prior decisions of lower courts--it seems there are three possible ways the Supreme Court will decide:

  1. Uphold fair share for public employees and reject the challenge altogether.
  2. Invalidate fair share for all public employees.
  3. Follow some intermediate path.  Perhaps by invalidating fair share for this particular case but not in general or by saying that fair share isn't really at issue here and that some other policy is really the controlling concern.  In this case, "some other policy" might be Medicaid.  The fair share challenge here involves home workers for very ill, indigent persons who rely on Medicaid.  There was some discussion, especially by the Chief Justice, about whether Medicaid stipulates a certain standard of payment that would make unionization of employees paid by Medicaid subject to a special set of rules that don't necessarily apply to other public employees.
I'm no legal scholar, so perhaps I'm missing something.  My prediction is that the decision will be against fair share provisions, but somewhat along the lines of #3 above.

If my prediction is right, here is my (again, amateurish) assessment of how the decision will affect the UIC United Faculty Union.  It will open up the possibility for a challenge to the fair share provision in our contract.  That challenge, or a challenge concerning a very similar type of contract elsewhere in the country, will probably hinge on the extent to which the union engages in public advocacy beyond the purview of wages, hours, and working conditions.  In that sense, the union's institutional membership with the American Federation of Teachers and the American Association of University Professors will be scrutinized.  My understanding is that those organizations sponsor political and legal activity that could be construed as falling outside the wages, hours, and working conditions purview.  That scrutiny might not hold up in court, and UIC's fair share provision would be invalidated or it will have to be restructured and the dues will have to be segregated, with an opt-out option for those who do not wish their payments to go to the affiliates. 

That's a lot of prediction from a non-lawyer, non-legal scholar.  But I'll be interested to see what happens.

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