In an attempt to build on a recent antiunion victory in the Supreme Court, the National Right to Work Legal Defense Foundation has filed another antiunion lawsuit in federal court in Minnesota. The suit seeks to weaken a new union of 27,000 home care workers there and, in the process, to undermine union rights more broadly.
At issue in the case is “exclusive representation” — the legal right of a duly-elected union to represent all the workers in a unionized workplace or occupation. Exclusive representation is what gives a union bargaining clout and ensures that the majority of workers that voted to unionize have a shot at forming a strong union. However, it does not force workers who voted against the union to join or pay dues. Nonmembers receive the same pay raises and other benefits negotiated by the union that members do; in Minnesota, nonmembers of the home care union do not even have to pay “fair share” fees to defray the cost of collective bargaining that benefits them directly.
Even so, the right-to-work foundation, on behalf of some of the nonmembers of the Minnesota union, has filed suit challenging the union’s right to represent them. The suit claims that nonmembers’ constitutional right to free association is violated when a union they do not support calls itself their representative. This a specious and ideologically driven argument, akin to saying that a United States senator should not be deemed to represent all of the people in a state because some residents voted for an opponent. It is also, unfortunately, the sort of argument that conservative Supreme Court justices have used in recent years to justify antiunion rulings. In June, for example, a 5-to-4 majority on the court held that nonmembers in a home care union did not have to pay a fee to cover collective-bargaining costs because a required payment violated their right not to associate with the union. The ruling basically invited free riders to take the benefits of collective bargaining without paying for them.
The Minnesota case faces a long road to the Supreme Court, but that is the destination the plaintiffs seek. Having weakened protections against free riders, they now want to weaken or overturn the union right of exclusive representation.
In the meantime, home-care unions, which have proved to be vulnerable to attack, will continue to be pawns in the antiunion effort. That is a shame. Providing home care for the elderly and disabled is one of the nation’s largest, fastest-growing, least-protected and lowest-paid professions, with typical wages of less than $9.50 an hour. Currently, less than a third of some three million home care workers are unionized, even though pay and conditions have improved wherever unions have formed, as have state budgets for Medicaid, which pays many home care bills. In Illinois, for example, unionized home care workers make nearly $13 an hour plus health benefits and training, while helping to save the state $600 million a year in nursing home costs.
There is no inherent reason that home care workers, as a rule, do not make enough to live on, just as there is no inherent reason that jobs in fast food, retail and other service industries do not pay living wages. In the absence of strong unions, profitable employers pay low wages because they can. And the Supreme Court’s conservative majority wants to help them keep it that way.
By THE EDITORIAL BOARD. OCTOBER 1, 2014