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Supreme Court Deals A Glancing Blow To Public Sector Unions

In a 5-4 decision written by Justice Samuel Alito, a conservative jurist appointed by George W. Bush, the Supreme Court ruled that some “partial public employees” can enjoy a free ride by refusing to pay union dues based upon alleged First Amendment beliefs, and still enjoy the benefits of the union’s collective bargaining efforts. Harris et al. v. Quinn, Governor of Illinois, et al., No. 11-681, decided June 30, 2014.

The Harris case was brought to the Court by Pamela Harris, an Illinois homecare worker who received Medicaid money as wages for caring for her son, who has a disability. During the previous year, Governor Quinn issued an executive order designating such personal assistants caring for disabled adults as state employees, thus allowing them to be represented by a union for collective bargaining purposes. Harris and the other plaintiffs were backed in the suit by the anti-union group National Right to Work Legal Defense Foundation. The plaintiffs argued that they should not have to pay the costs of the union’s representation of them, Service Employees International Union (“SEIU”). The suit alleged that paying representation costs amounted to a forced association that is unconstitutional under the First Amendment.

As established over forty years ago by the Court, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), members of a public sector union who disagree with the union’s political or ideological beliefs and activities, can elect to pay an “agency fee,” rather than union dues, which amounts to approximately 98 or 99% of the full dues associated with the union’s collective bargaining activities. That way, since a union’s duty of fair representation extends to both union members and agency fee members, i.e., a union must represent all employees in a bargaining unit regardless of union membership, such agency fee prevents “free riders,” or individuals who enjoy the benefits of union representation without contributing to the cost.

Although the majority ruled in favor of the plaintiffs, one distinction in this case that perhaps saved it from a devastating blow to public sector unionism was that the plaintiffs were not full- fledged state employees.

Harris and the other homecare workers were titled as “personal assistants”, (PA). Although they were paid by the state, the “customers,” or homecare recipients, controlled most aspects of the employment relationship, including hiring, firing, training, supervising and disciplining. In effect, the PA’s were subject to the joint employment of the customers and the state. The Court refused to extend the same agency fee provision established in Abood to these employees.

MY TAKE: This is a partial victory for such groups such as the Right To Work Legal Defense League. With the erosion of public sector collective bargaining rights as witnessed in Wisconsin and Ohio, there will be more attempts to weaken collective bargaining rights of both public and private sector union members.