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Over the past decade, more than a dozen states have forced
independent contractors who are paid through Medicaid to join
public-sector unions.In 2003, Illinois unionized home healthcare workers
and imbued the Service Employees International Union with the right to
collect compulsory fees from the workers’ paychecks. Democracy is thus
being turned on its head: the elected representatives for the people of
Illinois have chosen a sub-representative for some of the people and
given that sub-representative a taxing power.
In so doing, they have severely impaired home healthcare workers’
First Amendment right of association and the right to petition the
government for a redress of grievances. Without limits on government’s
ability to forcibly unionize people who indirectly receive
government-funded compensation (an increasingly large group), more and
more citizens will have to interact with their representatives through a
government-designated intermediary (a union); our democracy will become
even more dominated by special interests than it is now.
Cato, joined by the National Federation of Independent Business and the Mackinac Center, filed a brief
urging the Supreme Court to address this issue and vindicate the First
Amendment freedoms upon which a thriving democracy depends. We argue
that the forcible unionization of home healthcare workers serves none of
the compelling purposes for public-sector unionization that have been
articulated by the Supreme Court.
Because the Court has long recognized that unionization impinges
certain constitutional rights, it has limited public-sector collective
bargaining to those situations which advance the aims of promoting
“labor peace” and eliminating “free riders.” Labor peace is promoted by
limiting competing workplace interests from bargaining over the
conditions of employment — for example, two unions at the same workplace
representing different colleagues. Free riders are non-union employees
who enjoy the benefits of union-achieved gains without paying into the
union’s war chest. But neither aim is promoted by a system, such as
Illinois’s, in which employees work in different locations and in which
the customer — the disabled person paying the homecare worker through a
Medicaid disbursal—still controls every crucial aspect of the employment
relationship, including hiring and firing.
This last fact is most telling: the Illinois law only allows
collective bargaining for higher wages and more generous benefits. That
is, the law is only about speech — petitioning the government for higher
wages and benefits — and does not address workplace conditions at all.
As more and more states push to unionize more workers who indirectly
receive government money — campaigns that, in face o dwindling
private-sector union membership, have been called “labor’s biggest
victory in over sixty years” — it is vital that the Supreme Court
articulate a limiting principle on this practice. Otherwise, more and
more of us will be forced to interact with our representatives only
through government-appointed bodies.
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