“Right to Work” Battle May Be Coming to California

There was an interesting article in the Sacramento Bee last week about Wisconsin becoming the 25th state to enact “right to work” legislation prohibiting mandatory “agency” or “fair share” fees for employees who choose not to join a union. The reality is that such legislation has no chance of being enacted in California any time soon. However, that doesn’t mean the “right to work” battle is a non-issue in California; to the contrary, I think it will be a significant issue in the coming years because of challenges spawned by the Harris v. Quinn decision.

At the recent PERB advisory committee meeting on March 5, it was mentioned that PERB recently received its first Harris v. Quinn challenge.  In Harris v. Quinn, the United States Supreme Court held that it was unconstitutional to require payment of “agency” or “fair share” fees from In-Home Support Services (IHSS) workers. (Click here for my post on Harris v. Quinn). It’s unclear to me whether PERB, by itself, can apply Harris v. Quinn since the ability to negotiate agency shop agreements is written into the statutes administered by PERB, and PERB, as an administrative agency, generally doesn’t have the authority to declare a statute unconstitutional. However, even if PERB doesn’t have the authority to apply Harris v. Quinn, a challenge can certainly be brought in court. If a court were to find that Harris v. Quinn applies to California IHSS workers, it could have a huge impact. For example, look at what happened in Michigan. According to the Sacramento Bee article, SEIU Health Care Michigan lost 80% of its membership dues because of Harris v. Quinn. That’s a huge amount of money for any union.

Looking ahead, I expect that challenges under Harris v. Quinn will continue to multiply. For example, last month Illinois’ governor, Bruce Rauner, relied on Harris v. Quinn to justify an executive order prohibiting government unions from collecting fair share fees. He even went so far as to file a complaint for declaratory relief in federal court seeking to expand Harris v. Quinn to all government employees; thereby directly challenging the continued viability of the Supreme Court’s decision in Abood v. Detroit Board of Education.

I am personally opposed to the elimination of agency shop requirements being advocated by the right to work folks. I think that it you’re going to have collective bargaining, unions must have a way to limit “free-riders,” otherwise you end up with just a few people paying for the cost of representing everyone in the unit. That said, I do think that the “fair share” fee system has resulted in complacency among many unions. Look at the State of California. As of December 2011 (the last year I could find numbers for), about 25% of employees in bargaining units were fair share fee payers. (Click here for the chart). That’s actually not bad. However, for some units the percentage of fair share fee payers was as high as 44%. Now that’s a big problem for any union. For example, let’s say you threaten to strike. If I’m the employer and I know that you can’t convince almost half your bargaining unit members to pay a little extra every month to be a member, I’m going to question your ability to mount an effective strike? So if there is a silver lining in Harris v. Quinn for unions, it may be that it forces them to concentrate more on organizing and getting employees to join as members. If unions can do that, they may emerge even stronger than before. But certainly in the short term, Harris v. Quinn may pose a significant problem for public employee unions in California.

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