SCOTUS to Unions: Play Fair

SCOTUS to Unions: Play Fair

In recent years, unions have been pretty "entrepreneurial" in their efforts to grow their member rolls. But for America's true entrepreneurs -- the nation's small-business owners -- the Supreme Court created an important backstop to aggressive union tactics this morning in Harris v. Quinn. This comes in the wake of another setback for union operatives -- the Court's unanimous ruling in Noel Canning v. NLRB, which held unconstitutional three of President Obama's recess appointments to the National Labor Relations Board. Together these two decisions sent a strong signal to organized labor and their cronies in government that it's time to start playing fair.

In Harris v. Quinn, Justice Samuel Alito, writing for the majority, said that Illinois cannot require home health-care workers to pay union dues as "public employees." But the decision has tremendous effects beyond Illinois, since this union-organizing tactic has been proposed or enacted in at least 26 states. The decision today means that public-employee unions have lost a significant tool for forcing individuals to join and financially support their efforts.

In March 2003, then-governor Rod Blagojevich, issued an executive order (which was later passed into law by the Illinois legislature) declaring "personal assistants" to be employees of Illinois -- but only for the purpose of collective bargaining. These "personal assistants," often a family member or small-business owner, provide home care services, like cooking and basic health care, to persons who are generally confined to their home. What was the hook for converting these family members or small-business owners into public employees? Medicaid. Illinois argued that because Medicaid subsidized these services, the providers were employees of the state.

Fortunately, this Orwellian view of the world, in which anyone can become an agent of the state simply by providing services to someone who receives government subsidies, was struck down today. For the unions, this was quite a blow. Despite a serious decline in private-sector union membership over the last two decades, public unions have held their own or even grown. The unions have had a playbook in place for several years to convert small-business owners and other unsuspecting service providers into public union employees. Last year, Michigan overturned a similar organizing scheme of its daycare workers, and today the Supreme Court "just said no" to these tactics altogether.

This is a significant victory for small-business owners and other Americans who believe the First Amendment gives us the right to determine what groups we support or don't support. The constitutional backstop imposed by the Supreme Court means that small-business owners throughout the country can continue to run their businesses with knowledge that they will not be forced into paying union dues.

But the battle is not over. While the Court today protected home-health workers from being required to support unions, it declined to reconsider a previous ruling that allows the same thing to happen to real "public employees." Compelled unionization, whether the worker is employed by the government or not, is an affront to the First Amendment -- a view Justice Alito endorsed today in a very narrow way. Hopefully, he and at least four other members of the Court will take a broader stand in a future case.

Karen R. Harned is executive director of the National Federation of Independent Business's Small Business Legal Center.

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