Labor Day: Go fledge yourself

Eastern screech owl fledglings, thankful that the Supreme Court has protected them from union organizers? No, they want a contract! Photo by Joe McDonald.

Edroso commemorates Labor Day with a tribute to the awesome awfulness of Mr. Mark Mix, chairman of the "National Right to Work Legal Defense Foundation", and a column by Mr. Mix that ran in the Pensacola News Journal last week, "It's 'Labor Day', Not 'Union Day'" in which he talks about what America's liberty-loving workers have done to defeat greedy totalitarian unions this year, including

• Wisconsin's adoption of a "right-to-work" law in March (jewel in the crown of Governor Walker's effort to turn Wisconsin into a Deep South state);
• the success of the Republican dirty tricks campaign in stopping UAW from organizing the Volkswagen plant in Chattanooga (no, Mix didn't put it exactly that way), though as a matter of fact that was in February 2014, and the latest news from May is that 55% of the factory's work force are now UAW members, and talks are already underway to form a German-style Works Council there, so this year's developments may be a little more on our side; and
• the clearly incorrect, and vile, Alito decision in the case of Harris v. Quinn on the organization of Illinois home health care workers, though that one came out in June 2014.

I wrote the last one up a little at the time, but it was at the end of a post about a completely different Supreme Court decision (the Hobbity Lobbity), and it could have been more thoroughly researched and more clearly written, and I'd like to come back to it, especially because the Mixian account, which fills up most of his column, enshrines such a distorted view of what it's about, and the elements of a proper response are sort of scattered in bits around the Web. So I've done my bit, below the fold:

It seems that in the early 1980s, when Medicaid began paying home health care aides to provide severely disabled patients with full-time care at home, allowing them a more dignified and comfortable life than they would have in long-term hospital stays or nursing homes and not incidentally saving Medicaid tons of money, they were getting really terrible wages—$3.30 an hour in Illinois, with no benefits—and they began working with SEIU, the Service Employees International Union, to get a better deal.

Twenty years later, this effort began paying off, as a number of states recognized SEIU as bargaining agent for homecare providers and developed contracts, including California, Oregon, Massachusetts, and Washington; in Illinois, their pay has gone from $7/hour when the contract was signed in 2003 to $13 today, together with health benefits, paid training, and a grievance process. In return, those providers who are not union members must pay the union a "fair share fee", like any other state employee who refuses to join the relevant union, for their share of the benefits the union has obtained—

Fee amounts must be based on the union’s chargeable expenditures and may not include any contributions related to political spending

—in lieu of union dues, in 2013 amounting to 78.76% of full dues.

It was this last bit that bothered Pamela Harris, a Chicago-area homecare provider whose "customer", as patients in the system are called, happened to be her own severely disabled son (who is now 25, and still in need of 24/7 assistance). In an arrangement that's not in fact all that unusual, Medicaid pays her union scale to take care of her kid, which seems pretty decent of them, but she was one of about a third of the 26,000 Illinois providers who refused to join the union, and she objected strenuously to the fair share fee being taken out of her pay,

complaining that being forced to subsidize the union in this way amounted to what her lawyers called a “pernicious form of compelled expressive association” that violated her First Amendment rights. 

In spite of the fact that the state and union worked so carefully to ensure that the fee represented only the cost of the negotiations themselves, and would not contribute in any way to the union's "speech".

So she sued in 2010, long story short, with the assistance, wouldn't you just know it, of Mr. Mix and the "National Right to Work Legal Defense Foundation", and the case made it all the way to the Supreme Court and the desk of Mr. Justice Alito.

But it is not the case that Alito's opinion, in the heady (Bourbon Old Fashioned? just guessing) language of Mr. Mix,

struck down the scheme, ruling that individuals who indirectly receive state subsidies based on their clientele cannot be forced to pay compulsory union fees. The Court’s ruling renders unconstitutional similar homecare unionization schemes in effect in at least 13 other states.

Partly because it isn't true, partly because it ("individuals who indirectly receive state subsidies based on their clientele") doesn't actually make any sense at all. Nor did Alito rule on the "pernicious form of compelled expressive association" issue. It is understood in the fraternity, I believe, that he would have liked to overrule the Abood v. Detroit Board of Education decision of 1977, and outlaw the levying of fair share fees on state employees who don't join unions while enjoying union-won benefits altogether, but he didn't do that either, possibly because such a move would be too crazy rightwing even for Justice Scalia.

What Alito did, rather, was to rule for Harris on one of those weird little administrative details: It seems that there is some ambiguity on the employment status of these homecare providers, who were in one sense the employees of their "customers", who have power to hire and fire them, and in another sense the employees of the state, which trained them, decided how much to pay them, and actually gave them the money. Since the rule for the fair share fee applies only to full-fledged state employees, he reasoned, these only partly fledged workers cannot be compelled to pay it.

This bizarre fledgling theory is what Mix is trying to convey with the strangled syntax of "individuals who indirectly receive state subsidies based on their clientele"; the idea that the providers aren't really getting paid for their work but getting charitable support from Medicaid, because their poor, disabled bosses can't afford to pay then. Sort of the way Walmart workers get EBT cards because they can't feed their families on Walmart wages, only it's their whole salary package.

Despite the fact that the state government, both by legislation and executive order, had explicitly declared that the providers were state employees for the purpose of the contract negotiations (and the conservative Justices' famous "deference" to state law), and despite the fact that they obviously were state employees in every important sense—you can "hire" and "fire" the haircutter you choose in a multiple-barber shop, but you're not her or his employer.

(In the other sense, Pamela Harris was her own employer, both the person who as her son's guardian decided who to hire and the person who got her checks from the state of Illinois. Say, isn't that a conflict of interest? What if employee Pam really wanted to join the union but employer Pam pressured her not to?)

There was a good deal of consternation in pro-labor circles immediately after the ruling, in which this page shared, mirrored by an unseemly amount of triumphal glee among the usual rightwing suspects, but at this point it's no longer clear how bad it was. It has certainly been a blow to the Illinois workers for whom it was narrowly tailored: the Illinois-and-Indiana local says it's lost some $2 million in revenues because of the decision, but feels it's managed to hold the damage down through door-to-door grassroots persuasion. The providers' union contract ran out at the end of June, and billionaire-fascist governor Bruce Rauner is refusing to negotiate seriously to replace it; there's some hope that the state legislature will act to break the impasse (they're getting pretty skilled at the veto override).

I can't find any claims online that it's had any affect on the situation in other states; it seems likely that Charlotte Garden was right to predict (in an online symposium run by ScotusBlog just after the decision was released) that, because the fledgling-worker hypothesis is so carefully built for the specific Illinois case, state governments with similar setups (California, Oregon, Washington, Massachusetts) and those who are now in the process of developing them (Maryland, Missouri, Connecticut, Vermont, Minnesota), will be able to say that it doesn't apply to them or to find ways to skirt the issue by increasing government control over the process (which would be ironic, if that were the consequence of an opinion by Mr. Justice Small-Government Alito, but as you can see by the way he has thrown "federalism" under the bus in this ruling, see Catherine Fisk, Alito is pretty much immune to irony).

Meanwhile, another test of the Abood principles is coming up in the fall, in the case of Friedrichs v. California Teachers Association, in which a group of union-hating teachers is claiming First Amendment rights to refuse to pay the fair share fee, and it's much more important, in that it applies to the fully fledged or post-fledgling set; there's no bird metaphor for the conservatives on the court to wriggle out through. And we know that there is one conservative on the court that would strongly prefer not to overrule Abood.

The labor movement in the United States has been ground down so thoroughly over the past 40 years or so that it's natural to be pessimistic, and paranoid, and expect to see it altogether destroyed at some point, but I'd like to express a note of optimism here, on this Labor Day, that things have really been turning around, and not just for labor, in the last few years. And even in the Supreme Court in 2015 (remember King v. Burwell? Remember Arizona Redistricting Commmission? Remember Texas Department of Housing? Not to mention Obergefell).

Old Mixeroni touting anti-labor victories in 2015 had to go to 2014 for two out of three! Change is happening!