SCOTUS and the Unions: “Come On and Take a Free Ride!”

June 30th, 2014 at 5:00 pm

The Supreme Court’s majority opinion out today in Harris v. Quinn represents an important defeat for the “hundreds of thousands of home care and child care workers who have managed to improve their work lives through collective bargaining” as EPI’s Ross Eisenbrey wrote earlier today.  The Court majority ruled that these health-care workers cannot be required to contribute to a union, even if they benefit from its collective bargaining.

Sticking with Ross’s take:

Thanks to union contracts that include anti-free-rider provisions, this almost entirely female workforce has made huge improvements in wages and benefits, in training, and in respect in the states that provide for collective bargaining. The Court gives this no value and says the right of the free riders to have the benefits of union contracts without having to pay anything for them is the preeminent constitutional value. The Court majority’s balancing of interests is skewed: the right to vote democratically for a union contract that holds everyone to the same obligation and makes improved wages and working conditions possible is more important than the right to get something for nothing.

I’ll leave the legal analysis to others (though I’ll get back to that a bit below), but let’s look at the political economy of what I think is going on here.  Start from the presumption that a long-term goal of conservative policy is to weaken unions and a potentially effective way of doing so is repealing the anti-free-rider provisions Ross notes above.  Now, look at the figure below.

Private sector unions have consistently declined to the point where they now represent less than 7% of the workforce.  Part of that is a function of our shifting industrial structure away from manufacturing—a sector with high union density—to services.  But that’s not the whole story.  Over the last 30 years, the share of workers in manufacturing fell from around 20% to 10%.  But even within the factory sector, the unionization rate fell from 27% to 10%, an even larger decline than that of manufacturing’s share of the workforce.

Still, while private unions have been slammed, the public sector has held up extremely well, in no small part because the sector is insulated from the anti-union tactics that are both effective and pervasive in the private sector.  And that has made the publics a prime target.

Those hoping to take down public-sector unions wanted a more sweeping decision from their friends on the court today, one that went beyond the home-health aids to all public-sector workers by reversing the earlier Abood decision that protects the right of public unions to collect fees from non-members who benefit from collective bargaining.

Instead, the ruling was narrower.  As Justice Kagan noted in dissent: “The good news out of this case is clear: The majority declined that radical request. The Court did not, as the petitioners wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought necessary and appropriate to make collective bargaining work.”

But I agree with Adam Serwer, who views this silver lining as awfully thin.  This looks like a pretty classic Roberts’ court two-step: use a specific case that affects a smaller group to cast doubt on a broader principle, then follow that up later with a repeal of the broader principle, affecting far more people.

The Roberts court has in the past offered warnings of its future intentions to gut prior precedents or laws that have been upheld, such as when it upheld a key section of the Voting Rights Act in 2009 before striking it down in 2013. By calling the Abood decision “questionable,” the conservative majority may very well be signaling its intention to overrule it in the future.

Powerful forces really hate that straight line in the figure below and I’m sure they will keep pressing to make it move like the private sector line.  Which begs the broader question: whose fighting for the other side?  Why is capital so much stronger than labor?  That already large imbalance got a bit more so today.




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7 comments in reply to "SCOTUS and the Unions: “Come On and Take a Free Ride!”"

  1. Jake Rosenfeld says:


    Very interesting and measured post, and quite right in my mind on the politics of it all. But one thing that has struck me about this whole debate is the *presumption* that most workers, if given the opportunity, would free-ride. There really isn’t much evidence for that either in the U.S. (in “right-to-work” states) or cross-nationally. My take on the case is here:

  2. jeff says:

    There’s no political way the public sector can hold out if the private sector as no unions. They can be easily painted as lazy state workers and the like, basically outliers. Of course, you can’t even make a dent in inequality without unions.

    BTW Roberts long-term is also intent on bleeding the ACA, and he’s 59 years old.

  3. dwb says:

    Nobody is going to “fight for the other side” so long as unions continue to defend antiquated work rules in the public sector and refuse pension reform. When even the New York Times says “Teachers deserve reasonable due process rights and job protections. But the unions can either work to change the anachronistic policies cited by the court or they will have change thrust upon them.” (

    In Baltimore we had a completely atrocious jail scandal last year, two dozen correctional officers found to be on the gang payroll, several had babies with the gang leader and his name tattooed on their chest. Thank you Correctional Officer Bill of Rights, which the unions pushed and made it nearly impossible to fire or discipline the officers until corruption was entrenched.

    What you expect a union to do is defend it’s members at all costs, regardless of the impact on public safety or quality of education. We have unions that lobby to prevent even a modicum of productivity improvement (to prevent job losses), and rules that protect teachers even if they are ineffective, or worse. God forbid we should allow poor and minorities in the city to have choice in education (the middle class always have a choice- move). Cities are nearly bankrupt with high taxes and poor services.

    It’s Econ 101, monopolies deliver fewer goods and lower quality. Monopolistic labor unions are no different. They have become rent-seeking for their employees at the expense of good quality services. Municipalities can no longer afford it.

    Has nothing to do with “powerful forces” against unions per se, it’s about better quality, cheaper, public services. They can either reform, or reform will thrust on them. Not even Democrats, in California, are defending them much any more.

  4. Cullen Gillespie says:

    Hey Jared,
    Do you think that the traditional model of unions has any chance of making a comeback? Or are we destined to ever declining unionization rates. Is there any techniques or adaptations unions can make to survive in this capital-heavy environment?