The Washington PostDemocracy Dies in Darkness

Public sector unions could radically change this week

Flora Johnson, 80, now has 120 grandchildren and great-grandchildren, after raising 11 sons and daughters on the south side of Chicago. They're all out in the world, save one: Her seventh, a 47-year-old named Kenneth, who has cerebral palsy.

Every morning, Johnson gets up early, and helps Kenneth bathe, preps his food, washes his clothes. When he was younger, it was just something she did as a mother, to keep the state from putting him in a mental institution. But since the late 1990s, when she retired from her job as a cashier at a grocery store, caring for her son has been paid work. She started at around $5 an hour, from a state program that reimburses Medicaid recipients for home-based personal assistants. After the program's employees organized with the Service Employees International Union in 2003, the wage got bargained up to $11.85 an hour, and will rise to $13 in December.

That's made retirement a lot more relaxing for Johnson, when her only other income is through Social Security and $70 a month in food stamps. "The union has been a life saver," Johnson says. "Now that we got a raise, if we want to go out to a movie, we can do that."

All of that, however, could change with a Supreme Court decision to be issued tomorrow morning -- Harris vs. Quinn, which could drastically weaken not just the home care workers in Illinois, but public employee unions all over the country.

Here's the backstory, involving another mom caring for her disabled son, deep-pocketed conservative foundations, and a desperate campaign to hang on to what's been the one bright spot in the labor movement's darkest decade.

Not everybody in Johnson's bargaining unit of 26,000 workers pays union dues, which come to 3.3 percent of a member's total wages, with a monthly maximum of $75. But everybody has to at least pay a "fair share" rate of 2.5 percent, not to exceed $56.88, which states allow unions to take in order to defray the costs of advocating for all of the workers. There's no particular benefit to joining the union as a full member other than voting rights; everybody gets the same raises and benefits the union offers.

"We don't tell them 'you should join the union,'" says Johnson. "We tell them, 'we are union members. If you want to be a full union member, you can. If you want to be a fair share member, you can.'" Disability rights groups have supported the union, saying that decent wages have reduced turnover; the SEIU also funds classes that help members take better care of their clients.

SEIU represents 400,000 out of the approximately 500,000 home care workers across the 10 states with similar programs, and while it declines to specify how many of those pay full union dues rather than their "fair share," says it's more than half. Some of those not covered by the SEIU have organized with the Association of Federal, State, County, and Municipal Employees. And a few have decided not to unionize at all, including the Illinois unit of workers who serve Medicaid recipients with the worst disabilities.

That unit includes Pamela Harris. She gets paid to take care of her developmentally disabled son, and led the opposition to the SEIU when her program's workers voted in 2009. Now, instead of getting paid a flat rate decided on by a collective bargaining agreement, those home care workers negotiate directly with the Medicaid recipient, who receives a certain amount of money that can be used for various types of treatment.

Preserving her own right to not support a union, though, wasn't enough for Harris. With the help of the National Right to Work Coalition, an anti-labor group backed by large donors like the Koch and Walton families, she challenged the state's right to designate a union of public employees as their their sole representative. The right has been well settled in case law stretching back to the 1970s, and Harris lost in lower courts. But the Supreme Court took the case, indicating it might be willing to revisit the precedent.

Harris' case rests on the first amendment. In oral arguments in January, the NRWC's lawyer maintained that compulsory dues violated her free speech, since the state could force her to support an organization with which she might disagree. Thus far, public employee unions have remained relatively strong, even as those in the private sector weakened in the face of right-to-work laws that undermine their ability to bargain collectively. If the justices agree with Harris' lawyers, they could effectively make the entire private sector right-to-work, which is why labor groups are so concerned about the implications of the decision. It's particularly important for SEIU, which has made huge gains in the home care worker industry, which is expected to grow by 70 percent over the next decade.

On the flip side, the court could do SEIU and others a favor by affirming that collective bargaining is protected by the first amendment, says Kenneth Dau-Schmidt, a professor of labor law at Indiana University.

"This will also throw into doubt other provisions in American labor law which have been in effect beginning in the 1930s, and which have previously been held constitutional," he says. For example: It would undermine a union's duty to represent non-members, since it would force them to associate with people who aren't paying dues. It might also push back against recent state limitations on collective bargaining, since the government couldn't limit the content of subjects discussed in those negotiations.

Most observers of the court's questioning concluded that even the most conservative justices seemed unlikely to gut the underpinnings of collective bargaining. But Flora Johnson, and the rest of the unionized home care workers in Illinois, will be watching closely: An adverse ruling could mean a huge financial loss for the SEIU, and a much tougher fight for members.

"We'll be disappointed, but we're not going backwards," she says. "We're going to keep organizing."