THE BLOG
01/21/2014 09:33 am ET Updated Mar 23, 2014

What George Will Gets Wrong about Unions, Home Healthcare Aides, and the First Amendment

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Today the Supreme Court will hear argument in Harris v. Quinn, a critical case for public sector workers and labor unions. On Friday, syndicated columnist George Will urged the Supreme Court to overturn more than 35 years of settled labor law and strike down an Illinois law allowing home healthcare workers the opportunity to bargain collectively. The column made five inaccurate or misleading claims about public sector unions, the First Amendment, and the Illinois law in question.

1. Will's claim: Personal assistants in Illinois were "forced" into unions.

The idea that Medicaid-funded home healthcare aides (known in Illinois as "personal assistants") were "forced" or "herded" into unions is at odds with the facts. First, the law permitting these workers to bargain collectively was the result of grassroots pressure by home healthcare aides dating back to the 1980s. Second, these personal assistants used a fair, democratic process to select their union representative on a majority-rule basis. They were also free to vote not to be represented by any union, as another group of Illinois healthcare aides did.

2. Will's claim: Illinois does not employ the personal assistants

Will argues that Illinois is not the technical "employer" of these workers, even though the state (1) determines their wages; (2) issues their checks; (3) sets their minimum qualifications; (4) determines what training they will receive (and provides that training); and (5) conducts annual reviews. Granted, personal assistants are chosen by individual customers who in turn direct their day-to-day tasks. But customers are powerless to address problems that affect personal assistants broadly; for example, they cannot give a raise, or additional training--only the state can do that. This means that the state and the customers are both employers of the personal assistants. It is a well-worn concept in labor law that in situations like this, an employer can agree to bargain collectively over the terms and conditions of employment that it sets.

3. Will's claim: Personal assistants must "subsidize with their dues union speech with which they may strenuously disagree," violating their freedom of speech and association.

No worker can be required to join a union, and no worker can be required to pay for a union's ideological or partisan speech. That is the core holding of Abood--the case the plaintiffs (and Mr. Will) want the Supreme Court to overturn. The plaintiffs themselves are not alleging that the union failed to follow these directives. Instead, their First Amendment claim rests on two facts: 1) once chosen by a majority of workers, the union must bargain on behalf of all represented workers (treating them fairly whether or not they support the union); and 2) represented workers are required to pay their share of the union's bargaining and contract administration costs. Thus, Will's accusation that unions are "siphoning" money to subsidize political campaigns is simply incorrect. In fact, the union is already barred from making political contributions from fees paid by personal assistants who exercise their right to pay only their fair share of bargaining and contract administration costs.

4. Will's' claim: Personal assistants are prevented from petitioning the government "in their own voices."

Union-represented personal assistants are free to petition the government in any way they wish. They may write their elected officials and ask them to reject the unions' bargaining positions; they may campaign for politicians who promise to revoke collective bargaining rights for public employees; they may spend every penny of the raise that the union negotiated for them (from $9.35/hour to $11.85/hour, with a planned raise to $13/hour at the end of this year) to campaign to decertify the union. These core First Amendment rights were unaffected by Illinois's decision to allow the personal assistants to bargain collectively.

True, the personal assistants may not force the government to bargain with them individually. But they had no right to do that before they voted for union representation, either. So the presence of a union means more voice at work, not less.

5. Will's claim: Illinois lacks an interest in maintaining "labor peace" among homecare workers.

Finally, Will suggests that geographically dispersed personal assistants could not threaten the state's interest in labor peace. That ignores that home healthcare is already a major industry, and MIT economist Thomas Kochan estimates that demand for healthcare aides will grow by 70 percent by the end of this decade. Yet, wages remain too low to attract and retain workers. If unremedied, this shortfall will leave customers who cannot rely on family members unable to obtain the care they need; this could mean unnecessary (and costly) institutional care. As Kochan points out, unions are a tried-and-true method of improving working conditions and increasing worker retention. Further, collective bargaining preserves labor peace by channeling worker grievances productively, and sometimes - as in the case of the Illinois personal assistants - also by placing a "no strike" clause in the collective bargaining agreement.

The Supreme Court is right to be concerned about the First Amendment rights of individuals who wish to avoid paying for political speech with which they strongly disagree. But decisions like Abood already provide adequate protections for these objectors. The misleading arguments being made by Will, and the plaintiffs in Harris, go well beyond these established protections, and would cripple the system of public sector collective bargaining that has worked well for decades.

Charlotte Garden is an assistant professor at Seattle University School of Law. She co-authored an amicus brief filed on behalf of more than 30 labor law professors in support of the unions and Illinois in Harris v. Quinn.