June 30, 2014
By Steven Wishnia

Washington— In a case that could have seriously undermined public-sector unions ability to exist, the Supreme Court split the difference. It created a category called “partial public employees” who are not required to pay dues or “fair-share fees” if they are represented by a union—but did not overturn its 1977 decision upholding such requirements for public employees in union shops.

The Court split 5-4 along political lines. Justice Samuel Alito wrote the decision, joined by the three others in the right-wing bloc and swing vote Anthony Kennedy.  He held that the First Amendment does not permit a state “to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.” Justice Elena Kagan dissented, joined by the three others in the liberal bloc.

The case, Harris v. Quinn, was brought by Pamela Harris, an Illinois home health-care worker who is paid a salary by the state, using Medicaid funds, to take care of her developmentally disabled son. A 2003 state law designated these approximately 26,000 “personal assistants,” who are hired by families under state criteria and paid by the state, as state employees entitled to union representation. Most are represented by the Service Employees International Union’s Healthcare Illinois-Indiana local, which, as Alito noted, won them raises from $7 an hour in 2003 to $13 this year; italso got them state-funded health insurance and better training and workplace safety measures. Those who don’t want to join pay fair-share fees of up to about $57 a month to cover the cost of collective bargaining.

Harris, backed by the anti-union National Right to Work Coalition, challenged unions’ ability to collect such fees. Her suit argued that because public-employee unions negotiate their wages with the government, requiring nonmembers to pay for representation unconstitutionally forces them to engage in political activity. The federal Seventh Circuit Court of Appeals rejected that claim.

The Court’s 1977 decision in Abood v. Detroit Board of Education established the principle that the state had a compelling enough interest in “labor peace” to authorize a union as exclusive bargaining agent for employees—in that case, Detroit teachers—and that preventing nonmembers from “free riding” was necessary to ensure effective representation. It said that nonmembers did not have to pay for union political activity, however.

In overruling the 7th Circuit ruling, Alito argued that the home health-care aides were not “full-fledged public employees,” because they are hired and fired by individuals, “do not work together in a common state facility,” and are excluded from state workers’ benefit programs such as health care and retirement. It would be difficult to draw the line, he added, if the Abood decision’s coverage were expanded to any workers “who receive payments from a governmental entity for some sort of service.”

In dissent, Justice Kagan argued that fair-share fees are essential for effective union representation, and that there was no justification for the “partial public employees” category because there are ample labor laws covering workers with “joint employers.” If Illinois had structured its home health-care program so that individuals were not allowed to choose their caretakers, she wrote, there would have been “no question” that the workers were required to pay union fees. The majority decision, she concluded, creates a “perverse result”: “It penalizes the state for giving disabled persons some control over their own care.”

Alito left the door open to future cases challenging the union shop for public workers. He called the Abood precedent “questionable on several grounds.” In the public sector, he argued, “both collective bargaining and political advocacy and lobbying are directed at the government,” and as public payments for Medicaid services and workers’ pensions are “matters of public concern,” trying to increase them is inherently political activity.


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