Writing for the majority in Harris, Justice Samuel Alito could have essentially taken a kill shot at public sector unions by overturning an earlier case -- Abood vs. Detroit Board of Education -- that had affirmed the constitutionality of their business model. Instead, he ruled that case only covers "full-fledged" employees. Unions representing "quasi-public" employees, Alito opined, should not be able to collect fees from workers who declined to join, as they have in the process of unionizing thousands of home care providers around the country.
To be sure, that will have some serious negative effects on unions in the short term. There's the cash flow issue: The Service Employees International Union, which will only say that a majority of the workers it represents actually pay full union dues, could lose up to one-third of its revenue from that base overnight. That will complicate the project of recruiting everybody else who falls under Alito's "quasi public" definition, such as foster parents, day-care workers and those who care for the elderly. It also creates a "free rider" problem, since now employees can enjoy the benefits of collective bargaining without paying the costs.
There are new fissures in the workplace
In some ways, the decision is consistent with a broader trend in American labor: Business-minded conservatives creating fissures in the workplace, insulating employers from workers through an intermediary that doesn't actually control the fundamentals of wages and benefits. Franchises, independent contractors and temp agencies are just a few examples of how non-traditional employees tend to be harder to unionize and to have fewer rights. In designating home care workers "quasi public" employees who don't deserve the same bargaining powers as "full-fledged" ones, Alito furthered the idea that your rights depend not on the kind of work you do, but rather on who pays your salary.
"It seems the distinction they drew means that constitutional rights turn on labels -- who is your technical employer," says Charlotte Garden, a professor of labor law at Seattle University, noting that previously the court had been hesitant to create such arbitrary distinctions.
At the same time, though, there's evidence to suggest that legal rights aren't the only thing that determines the quality of your working conditions.
Federal employee unions, for example, are actually prohibited by statute from collecting an "agency fee" from people who elect not to join the union and pay full dues. Even though they never had the right that the Illinois home care workers just lost, unions like the American of Federation of Government Employees have managed to maintain much higher density and strength than their private sector analogues.
By contrast, contracted federal workers do have the right to form an agency shop and bargain with their employers. But most of those, like the ones whom the umbrella labor group Change to Win is trying to organize with its Good Jobs Nation campaign, remain low-paid and non-union. Even President Obama's executive order raising their pay to $10.10 an hour isn't much help, when they don't have the ability to bargain for more.
Mandatory dues aren't everything
So the agency shop isn't the end-all, be-all of collective bargaining. In fact, there's a school of thought that says it's not such a great thing to have everyone pay dues whether they want to or not. Gary Casteel, the Southern region director for the United Auto Workers, says he prefers right-to-work environments for organizing.
"This is something I've never understood, that people think right to work hurts unions," Casteel said in February. "To me, it helps them. You don't have to belong if you don't want to. So if I go to an organizing drive, I can tell these workers, 'If you don't like this arrangement, you don't have to belong.' Versus, 'If we get 50 percent of you, then all of you have to belong, whether you like to or not.' I don't even like the way that sounds, because it's a voluntary system, and if you don't think the system's earning its keep, then you don't have to pay."
So is it really such a terrible thing for unions to have to demonstrate their value convincingly enough for workers to want to join?
Of course, home care workers are no cakewalk to organize, since they're distributed across thousands of individual workplaces rather than in one government building. Also, giving up part of a paycheck for union dues is always harder for people already living on the margins.
Overall, though, the blow seems more financial and psychological than structural or organizational. Membership in the SEIU has already been a huge boon for home care workers: Pay for industry workers in Illinois has nearly doubled since they organized, back in 2003, and the federal Department of Labor granted them a host of new protections last year. That seems like a darn good return on invested dues, and the union shouldn't have too much trouble making the case that it's worth supporting when a worker has a choice of whether to do so or not.