Why ‘Harris v. Quinn’ Has Labor Very, Very Nervous

http://www.thenation.com/article/179033/why-harris-v-quinn-has-labor-very-very-nervous



Sometime soon, certainly by the late-June conclusion of its present term, the Supreme Court will tell us its decision in Harris v. Quinn, arguably the most important labor law case the Court has considered in decades. Harris has already generated a great deal of attention and worry in labor circles, and nearly as much enthusiasm and celebration in pro-business ones—reflected in the extraordinary number of friend-of-the-court briefs filed by advocates on both sides. The case threatens the existence of the “agency shop,” a bedrock institution in American labor relations—one relied on in the most successful recent union organizing, and that is decisive to the health of public sector unions. Here’s what Harris is about.

In American labor law, a union wins the right to be the exclusive collective bargaining representative for workers in a particular unit by demonstrating its support by a majority of the workers in the unit. But the law also imposes a duty with this right. The union must represent all workers, union members and nonunion employees alike, when it negotiates and administers collective bargaining agreements. Thus it is theoretically possible for nonunion employees to capture the benefits of collective bargaining won by their union colleagues (often at considerable expense) but pay nothing for it.

Unions typically seek to limit this free-rider problem by negotiating clauses requiring all unit employees to pay their “fair share” of the union’s costs —for union members, this is done through dues; for nonunion employees, by some calculated “agency fee.” Along with capturing needed resources, these clauses send a cultural message: if not of solidarity then at least distaste for free-riders.

The Supreme Court has long recognized the legitimacy of such fair-share/agency-shop agreements, in the private as well as the public sector, within limits. The limits are that unions may compel nonunion employee contributions only for the costs of negotiating and administering collective bargaining agreements. The costs of all other union activity—new organizing, lobbying, public education, elections, etc.—are deemed “nonchargeable,” meaning that they are paid by nonunion employees at their discretion.