Pro-Union Monopoly New York Times Editors Flunk Constitutional Law
It can’t be a very common thing for the editors of the New York Times opinion pages to sound the alarm about a “dangerous” federal lawsuit that hasn’t even been heard yet. Â But the rabidly pro-Big Labor Times editors are evidently so upset about the U.S. Supreme Court’s ruling this past summer in Harris v. Quinn that they are now seeking to launch preemptive strikes against related litigation before it even reaches the appellate court level.
In the Harris case, a 5-4 High Court majority found that home health care providers who are not hired, fired or supervised by a state government or any of its localities, but are reimbursed for their efforts with funds indirectly furnished by Medicaid, cannot be designated by elected officials as “public employees” solely for the purpose of forcing them to pay union dues or fees in order to continue to be receive financial support.
The Harris plaintiffs were successfully represented by National Right to Work Legal Defense Foundation staff attorneys. Â The decision in the case was quite narrow, potentially applying to several hundred thousand home health caregivers, daycare providers, group home leaders and other similarly situated Americans nationwide, but not to millions of “full-fledged” public employees who are currently forced to pay union dues or fees in order to keep their jobs.
However, even though the Harris majority declined to overturn the Supreme Court’s 37-year-old ruling in Abood v. Detroit Board of Education, the case that originally gave a judicial green light for forced union dues and fees in the public sector, the opinion by Justice Sam Alito did scathingly criticize this precedent and brand it as “questionable.” Â The possibility that a High Court decision in the relatively near future could prohibit all government unions from cutting deals with public employers to force all front-line employees to pay for monopoly union representation that they can’t refuse, and that may well be economically harmful to them, has Times editors up in arms.
And that is likely the reason why, on October 2, they inveighed against  a separate Foundation case that is now before a U.S. district court in Minnesota.  Because of the Harris precedent, the home health care providers who are the plaintiffs in Bierman v. Dayton are unlikely to be forced to fork over dues or fees to government union officials.  However, as a consequence of a law adopted by Big Labor Gopher State politicians last year and a recent, very low-turnout union election campaign, top bosses of the Service Employees International Union’s (SEIU) Healthcare Minnesota subsidiary are expected to secure monopoly-bargaining privileges over thousands of home health-care providers soon.
Because of the 2013 law, signed by union-label Gov. Mark Dayton, lead plaintiff Teresa Bierman, who provides homecare services to a daughter suffering from cerebral palsy and other disorders, the other plaintiffs, and thousands of other similarly situated Minnesotans are now being forced to “associate with” the SEIU Healthcare Minnesota “as their exclusive representative for petitioning and contracting with the State.”
According to the Times editors, such forced association is perfectly normal. Â After all, they observe, when a U.S. senator wins an election, he is deemed “to represent all of the people in a state,” including residents who “voted for an opponent.”
But the political analogy cited by the editorial is inapt with regard to union monopoly bargaining under any circumstances, and especially with regard to monopoly bargaining in the public sector. Â In a 1984 monograph, economist and labor-policy specialist Charles Baird, now a professor emeritus in the California State University system, tersely explained why:
No private agency is supposed to be able to intervene between citizens and their government. If a citizen wants to address his or her government on matters of public policy, no private agency is supposed to block his direct access to that government. If a citizen wants to request that his government improve a public street, no private agency is supposed to intervene. Â If a citizen who is also a public employee wants to request that his government improve his wage or working conditions, no private agency is supposed to intervene. Â Most people would be outraged if all requests for public street improvement had to be made through a cartel of private local construction companies. Â To be logically consistent, they should also be outraged when all requests by citizens who are public employees for wage improvements must be made through a private cartel imposed on those public employees.
A related flaw in the editorial’s use of the political analogy to excuse government-sector monopoly bargaining is that, although a U.S. senator can in one sense be said to “represent” all of a state’s residents, including those who voted for other candidates, such “representation” does not in any way interfere with constituents’ freedom to push for policies that are opposed to those of the senator.  If Jack Smith votes for candidate A for U.S. Senate, but candidate B is elected, Jack can continue to lobby the Senate to adopt policies that candidate B opposes  Jack can also contribute to lobbying groups and hire spokespersons to try to block programs and causes that candidate B, now his senator, favors.
Unfortunately, if Jack had been an employee voting against the installation of a union as his monopoly bargaining agent, and he had been on the losing side, he would not have retained analogous rights.
Nearly four decades ago, professor James E. Bond, now a professor emeritus at the Seattle University of Law, explained the difference between a political election and an organizing election establishing a particular union as an “exclusive bargaining representative”:
In any unit where an exclusive bargaining representative has been designated, an employee cannot go to his employer, ask him for a raise, more responsibility, [or] a day off . . . . Â Instead, he must act through his union representative. Â Even though the employee may not have voted for the union and even though he may not belong to the union, he must depend on the union to press his claims. Â [Footnotes omitted. The entire article may be accessed at the second link below.]
No citizen, no matter for whom he voted, ever has to rely on his or her U.S. senator or representative to press his or her claims. Therefore, the Times editors’ use of the political analogy to try to “normalize” union monopoly bargaining fails utterly.
The New York Times opinion editors, well-educated as they undoubtedly are, must be very familiar with U.S. Supreme Court Justice Robert Jackson’s declaration in Board of Education vs. Barnette that  a person’s “fundamental rights may not be submitted to a vote” and “depend on the outcome of no elections.” And yet, in defending union monopoly bargaining against even the so-far modest attempt to roll it back represented by Bierman v. Dayton, they seem ready to toss that principle out the window.  Why is the preservation of union special privileges so important to the Times editors?
Justice Robert Jackson’s declaration in West Virginia Board of Education v. Barnette (1943) that a person’s “fundamental rights may not be submitted to a vote” and “depend on the outcome of no elections” is one of the most celebrated passages in any U.S. Supreme Court decision. Yet the New York Times editorial writers who vociferously defended government-imposed union monopoly bargaining October 2 seemed for the moment to be completely unaware of the principle Jackson invoked. Image: www.allthingscrimeblog.com
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