Q & A on Harris v. Quinn

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

Here (with apologies for the conversational style) is a Q & A on Harris v. Quinn that I did with Salon’s excellent labor reporter, Josh Eidelson. The interview focuses on the potential implications of Harris, but Eidelson also asked an interesting question about how the Petitioners are characterizing the case:

The National Right to Work Foundation, which helped bring this case, has described it as an issue about “forcing homecare providers into union ranks.” What do you make of that line of argument?

Number one: There’s never a union unless the majority of the employees themselves affirmatively desire a union. What any state can do, what any private sector employer can do, is give employees a vote about whether or not they want a union – and then the principle of majority rule applies.

Number two: Even under majority rule, nobody can be forced to become a member of a union anywhere in the United States. What people can be required to do is to pay for representational services that they’re provided. The union has to represent everybody who’s in the bargaining unit, even the people who voted no. Along with that obligation on the union comes a requirement that everybody pay dues for the representational activity that the union is statutorily obliged to undertake.

To characterize that as people “being forced into union ranks” seems to miss some important nuance.

One other note: I suppose I can understand from a marketing perspective Salon’s use of Justice Scalia in the headline (“Scalia’s Golden Chance to Kill Unions”), but Scalia has actually been a more balanced voice in these cases than such a headline would suggest.  As we’ve noted, Justice Scalia wrote an important concurrence in Lehnert that explains the sound reasoning of the Court’s prior jurisprudence on public sector union dues.  As Scalia put it there:

Our First Amendment jurisprudence recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other. Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The ‘compelling state interest’ that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of ‘free-riding’ nonmembers; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is distinctive, however, about the ‘free riders’ who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry — indeed, requires the union to go out of its way to benefit, even at the expense of its other interests. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others. Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.

Our Explainer on Harris is here, and we’ve covered the case most recently here.

Enjoy OnLabor’s fresh takes on the day’s labor news, right in your inbox.