Wednesday, October 2, 2013
The Supreme Court today agreed to hear a case pitting mandatory union fees for non-members against non-members' free speech and free association rights. The case, Harris v. Quinn, is the second time in recent years that the Court will consider the issue. (Our original post on Harris is here.) And if the signals from its first case, Knox v. SEIU, are any indication, we can expect that the Court will continue to chip away at, even eviscerate, public-sector union power.
Harris involves an Illinois law that requires home-health-care personal assistants who are not members of the assistants' designated union to pay union dues for union activies such as collective bargaining (but not for politics and other non-union activities). The Supreme Court has long allowed this kind of mandatory fee for non-members of public sector unions (going back to Abood v. Detroit Board of Education) in the interest of preventing free riding by non-members. (If non-members could get by without paying union-related fees for activities like collective bargaining, then nobody would become a member. Why? Because non-members could enjoy the benefits of the union without paying any fees. But if that happened, then the union's funding stream would dry up, and the union would cease to exist. Thus the rule makes sense for union-related activities. But the Court drew the line at non-union-related activities, like politics, where mandatory fees for non-members would compel a political association to which they objected.) Because the Supreme Court has long allowed this kind of mandatory fee, the Seventh Circuit upheld the fee in Harris. (There was just one twist: personal assistants look a little like state employees and a little like personal employees of the patients they serve, or state contractors. The Seventh Circuit ruled that they were state employees.)
The Court now will review that ruling. But it doesn't start from scratch. That's because the Court ruled in Knox in 2012--after the Seventh Circuit handed down Harris--that a public union couldn't use an opt-out procedure for special assessment fees for non-members for non-union activities; instead, the Court said it had to use an opt-in procedure. In other words, the Court ruled that the state couldn't require non-members to pay the special assessment for non-activities but opt out; instead, the state could only allow non-members to opt in.
Knox dealt with a seemingly narrow issue--opt-out or opt-in for special assessments for non-union activities. But by requiring opt-in, and thus setting the baseline as no fee assessments for non-union activities for non-members, the case was a blow to union power.
But more: the Knox opinion (penned by Justice Alito) included strong language suggesting that the broader Abood rule violated free speech and free association. That is, Knox comes very close to saying that states can't require non-members to pay even for union activities--even though that question wasn't before the Court.
In other words, the Court in Knox sounded like it was just waiting for a case to give it a chance to overturn the Abood rule that non-members can be assessed fees for union activities.
Harris might just be that case. If so, Harris could represent a big blow to public union power. Indeed, depending on how the Court might rule, it could mark the beginning of the end of public unions (if the beginning hasn't already happened). That's because a rule that allows non-members to dodge fees for collective bargaining and other union activities--that is, to free ride on the union--would give a strong incentive for everyone to bail out of the union.
The Court could rule differently, though--on Abood's application to independent contractors and even to the private sector--and that's where the facts matter. Remember that the Seventh Circuit said that personal assistants were state employees, but that they also look a little like private employees. Abood applies to public employees, and the Seventh Circuit was clear that "we do not consider whether Abood would still control if the personal assistants were properly labeled independent contractors rather than employees." "And we certainly do not consider whether and how a state might force union representation for other health care providers who are not state employees, as the plaintiffs fear." Op. at 15. This kind of ruling could represent a significant blow to union power, too.
Either way, Knox put the handwritting on the wall. Harris may just be the case to take on the long-standing rule that states can require non-members to pay union dues for union activities in order to avoid free riders. If the Court reverses this rule, or even just chips away at it, the case will be a significant blow to unions.
There's another question in Harris. One group of personal assistants in Illinois, operated under a different state department, voted not to organize; they therefore do not have to pay any fees. The Seventh Circuit ruled that their claim wasn't yet ripe. This, too, is before the Court.