Roberts court continues taking care of business

In a trio of decisions rounding out the current term, the Supreme Court placed new burdens on labor unions and workers in ways more and less direct. A quick review:

A further beleaguered agency

Last Thursday’s unanimous opinion in National Labor Relations Board v. Noel Canning was mostly about the constitutionality of presidential appointments made when the Senate is in “recess.” But the origin of the case is more troubling: In the face of an adverse ruling by the NLRB, the federal agency that enforces labor laws, the employer on the losing end argued that members of the Labor Board had not been legitimately appointed. The political tug-of-war over unions had made it nearly impossible to empanel the NLRB, and President Obama, put in a bind by an immovable Senate, had made recess appointments.

The court has now clarified the meaning of a proper Senate recess: 10 days. But it will likely take six or more months for the NLRB to figure out which of the hundreds of cases invalidated by Noel Canning it will have to re-adjudicate. (Former Labor Board member Craig Becker predicts that only 150 or so will still be “live,” neither moot nor otherwise settled.) There is little doubt that the case means a lot of additional work for the backlogged and besieged NLRB.

A challenge to organizing

Harris v. Quinn is straightforwardly about what unions can and cannot do. Public sector unions representing tens of thousands of low-wage home care workers paid by Medicaid and other government programs across the country now, as a consequence of this ruling, may not automatically enlist non-members to share the costs of collective bargaining, a process that has undeniably produced higher wages and improved conditions for the entire workforce. The court based this decision on a novel carve-out: Caregivers who are compensated by the state but work in individual homes are only “partial” or quasi-public employees. Unlike real public employees who toil in offices and other legitimate workplaces, these domestic laborers — mostly women, people of color and immigrants — cannot be compelled to support the unions that negotiate on their behalf.

What this means in existing home care unions is that non-members can enjoy the same benefits as their unionized peers without having to contribute service fees. But in the future, with a dramatic decrease in operating budgets, these unions may not have the money to organize and represent the vulnerable workers who care for our poorest elderly and disabled adults and young children.

‘Sincere beliefs’ over employee rights

The lightning rod of this term was the decision in Burwell v. Hobby Lobby, which, like Harris, was split 5-4 along ideological lines. On its face, the case was about contraception and the constitutionality (or, as it turns out, the unconstitutionality) of an employer mandate to cover birth control under the Affordable Care Act. But the case also holds that a corporate employer’s right to religious freedom may trump a human employee’s rights to reproductive health care.

A for-profit corporation that is “closely held” by owners with “sincere Christian beliefs” is religious by extension and therefore entitled to First Amendment privileges, the court ruled. It is the convenient (for the five justices in the majority, anyway) confluence of the corporate personhood of the post-Citizens United era and the protections offered under the 1993 Religious Freedom Restoration Act. By this logic, owners can act through the corporation to exercise their beliefs, but there is no reciprocal need to safeguard employee rights.

The owners of Hobby Lobby convinced the court that a corporate “person” could feel and believe. But the corporate veil becomes a stone wall in the other direction: Employees who sue their employers for minimum wage or overtime violations, for instance, find it nearly impossible to hold any human perpetrators responsible.

Throughout its nine terms, the Roberts court has done consistently well by Big Business. With the just-concluded session, the rights of corporations and their owners have again won the day.