Tactical Defeat For Unions May Be Strategic Victory

As many expected, the Supreme Court ruled in Harris v. Quinn that Illinois personal assistants who do not wish to join a union need not pay fees for collective bargaining. Yet, under the circumstances, the ruling is still mostly good news for public sector unions.

The case, which was argued in February, concerns a particular group of workers who mainly work for their patients or patients’ families directly, but who are paid by the state, which also controls some working conditions. The Illinois Legislature deemed this enough to qualify the aides as state workers eligible for collective bargaining. But despite the state’s claims, these workers are qualitatively different from most public sector workers.

It is this difference that is the key to the unions’ win in the midst of a ruling that seems, on its surface, to be a defeat.

In a dissenting opinion, Justice Elena Kagan pointed out that, in argument, the crux of Harris v. Quinn rested on whether to overturn a particular precedent: Abood v. Detroit Board of Education, which established the power of public employers to require employees to pay for union representation regardless of whether they wanted it. Though it ruled against the unions, the majority did not abandon Abood. Instead, the Court merely declined to extend the precedent from what it called “full-fledged public employees” to the personal assistants, who are public employees solely for the purpose of collective bargaining. While the majority opinion took time to criticize Abood, it did not overturn it.

I agree with Kagan’s observation that the majority went to great lengths to distinguish the workers at issue in Harris v. Quinn from run-of-the-mill state workers, whose working conditions and employment are handled solely by the government. For public sector unions, this is what makes Harris a mere setback rather than a disaster. The vast majority of public employees can still be forced to financially support unions whose positions they may reject and whose representation they may not want.

Kagan wrote that the choice to leave Abood standing was “cause for satisfaction, though hardly applause.” She went on to invoke stare decisis, and said, “Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse [Abood].”

This is simply untrue. It was entirely possible for the Court to reverse Abood, as requested by the plaintiffs, as well as in many friend-of-the-court briefs. My guess would be that as many as four justices were prepared to reject Abood, but that they steered clear in order to secure a crucial fifth vote – probably that of Justice Anthony Kennedy – to rule in favor of the Illinois workers at all.

Stare decisis is a principle typically invoked by whichever side likes the status quo governing a particular legal issue. When it comes to constitutional rights, Kagan and her fellow liberals call upon stare decisis to support treasured decisions like Roe v. Wade but would be perfectly happy to overturn Citizens United if given the chance. For conservative justices, it’s just the opposite.

Certainly a future Court in which one of the incumbent liberals has been replaced by a conservative might be more prepared to reverse Abood than the current justices. If they felt strongly enough, stare decisis would not stop them from doing so. Instead, the Court’s workload and its priorities may be what end up protecting public employee unions. The rules governing agency shops for public employees are not exactly the most pressing issue on the legal landscape. They are not even the 10th most pressing – nor, probably, the 20th. For that reason alone, it could be many years before the Court is willing to revisit the issue, even if the outcome may be different if and when it does.

Hence the strategic value for public employee unions in losing Harris v. Quinn. Given the current Court’s makeup, it was probably the best result the unions could have hoped for, a better one than they expected and one that may shield them for some time to come.

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About Larry M. Elkin 564 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

Visit: Palisades Hudson

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