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The rest of Washington may have shut down for the snow, but not the U.S. Supreme Court. Instead, the justices heard arguments today in a case that could devastate public employee unions. At issue is whether non-union members can be forced to pay fees toward negotiating a union contract that will benefit them. NPR's Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In Illinois, 10 years ago, 28,000 home health workers who care for adults with disabilities approved a union. Since then, hourly wages have nearly doubled. The workers now receive regular training and have health insurance. The state says as a result, the workforce has been stabilized, professionalized and the government has saved money by keeping adults with disabilities in their homes instead of institutions.
Some workers, however, object to paying what is known as fair share fees. That is, even though they haven't joined the union, they are required to pay their fair share of the cost of negotiating the contract they benefit from. The Supreme Court has long allowed such fees to prevent non-members from free-riding on union members' dues.
But in recent years, some of the court's conservatives have suggested that they may be prepared to reverse this long-established principle, and today's case presents that opportunity. On the steps of the court today, one of those objecting to fair share fees was Susan Watts, whose 27-year-old daughter cannot walk or talk.
SUSAN WATTS: We entered this program and it was already unionized. So I really didn't have a vote, you know, or a voice. You know, it's mandated for us to pay this fair share. And the money is being taken from my daughter.
TOTENBERG: Watts believes that if there were no union contract, there might be more money for her daughter's medical care. But that is not how the state, most of the workers or most of the clients see it. The state says it actually has saved $632 million by creating a stable workforce to care for adults with disabilities in their homes instead of nursing homes. And the workers and their patients say the union has transformed a program that previously had been hobbled by rapid turnover. Home care worker Flora Johnson.
FLORA JOHNSON: I have a son that have cerebral palsy. They tried to get me to institutionalize him years ago. But by the union coming in, he got a chance to stay home with his family.
TOTENBERG: Many of the care recipients were also on hand at court today, among them Rahnee Patrick(ph), who sat calmly in a wheelchair as the snow pelted her hat and coat.
RAHNEE PATRICK: I had a personal assistant come to me at 5:00 in the morning in my house. She rode an hour in the snow from the north side of Chicago. Why is she so dedicated? Not because I'm lovely, but because she gets a really good wage. And the wage came from the unions being able to collectively bargain. And I can actually go to work and it's because of her being able to pay her own bills than I'm able to pay my bills.
TOTENBERG: Inside the Supreme Court, the debate was equally passionate. Lawyer William Messenger of the Right to Work Foundation contended that the fair share fee violates Susan Watts' First Amendment rights because it compels her to endorse a policy that is a matter of public concern. Justice Ginsburg: Are you saying that bargaining over wages and benefits in the public sector converts the process into something more? Answer: Yes.
Justice Scalia: Under that reasoning, everything is always a matter of public concern. Supposed you have a policeman who's dissatisfied with his wages and so he makes an appointment to see the commissioner. And he does that 10 times until the commissioner is fed up and tells his secretary, I don't want to see this man again. Isn't he prevented from petitioning for redress of a grievance in violation of the First Amendment? Answer: He isn't but once you have a collective, it would start to become a matter of public concern.
Justice Sotomayor: So could the state instead of forcing fair share fees pay more to union members? Answer: Yes. Justice Ginsburg: Are you taking the position that there cannot be an exclusive bargaining agent if there are any dissenters who don't want to be represented by a union? Lawyer Messenger demurred, saying that that issue is not presented in this case. Justice Kagan interrupted, characterizing Messenger's argument as radical.
Not only is it a radical argument, she said, it would radically restructure the way workplaces across the country are run. Kagan noted that for the last 65 years, every state in the nation has debated whether to be a right-to-work state with no mandatory fair share fees or a state that requires such fees. Your argument, she told Messenger, is that that debate should never have taken place because, in fact, a right-to-work law is constitutionally compelled.
Justice Breyer: You're asking the courts of the United States to fashion a new special labor law for government employees using the First Amendment as a weapon. If Messenger's attempt to reverse more than a half century of labor law met resistance in some quarters, when the other side rose to make its arguments, many of the court's conservatives made equally clear their antipathy for labor unions.
Justice Alito: What I don't understand is why the union's participation is essential. Why do they need to have the union intervene here? Justice Kennedy: In an era when government is getting bigger and bigger, suppose the younger person thinks that the state is squandering his heritage on unnecessary or excessive payments or benefits. Can the union take money from an employee who disagrees with the union on such a fundamental question?
The key point, said Solicitor General Donald Verrilli, representing the federal government, is to look at the court's consistent precedents. Under those rulings, when the government is acting as an employer, its interest in effective and efficient carrying out of its own operations is entitled to very substantial weight, more weight than it is entitled to when it's regulating the citizenry in general. A decision in the case is expected by summer. Nina Totenberg, NPR News, Washington.