Court Takes on Fair Share Union Dues (Again)

Steven D. Schwinn John Marshall Law School

The Supreme Court will hear oral arguments on Tuesday in Harris v. Quinn, the case testing whether a state law requiring non-union homecare personal assistants to pay union dues for the assistants' union's colleective bargaining activities violates the First Amendment.  The case threatens the decades-long rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities), under Abood v. Detroit Board of Education.  The Court presaged this threat two Terms ago in SEIU v. Knox.

Here's a selection from my preview in the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

The Illinois Department of Human Services operates two Medicaid-waiver programs that subsidize the costs of home-based assistants for disabled individuals or patients who might otherwise face institutionalization. The programs allow Medicaid patients to live in their own homes with the help of personal assistants. One of these programs, the Home Services Program, is administered by the Division of Rehabilitative Services; the other program, the Home Based Support Services Program, is administered by the Division of Developmental Disabilities. The lower court and the parties call these programs the “Rehabilitation Program” and the “Disabilities Program,” respectively.

Under the Rehabilitation Program, a patient works with a counselor to develop an individual service plan. The plan specifies “the type of service(s) to be provided to the patient, the specific tasks involved, the frequency with which the specific tasks are to be provided, the number of hours each task is to be provided per month, [and] the rate of payment for the service(s).” The service plan must be certified by the patient’s physician and approved by the state. The patient is then free to select almost any personal assistant who meets the qualifications related to work experience, training, and skills set by the state. The personal assistant signs an employment agreement directly with the patient, but the terms of the agreement are set by the state. The state also sets wages and pays the personal assistant, withholding Social Security and federal and state taxes. (Personal assistants are also sometimes called homecare providers.)

The Disabilities Program functions similarly, although the record is less developed as to the specific relationship between a personal assistant and the state.

In the mid-1980s, personal assistants in the Rehabilitation Program sought to unionize and to bargain collectively with the state. The State Labor Relations Board found that it lacked jurisdiction over the personal assistants, however, because the state was not their sole employer. As a result, personal assistants could not unionize.

In 2003, the state amended the Illinois Public Labor Relations Act to designate “personal care attendants and personal assistants working under the Home Services Program” as state employees for the purpose of collective bargaining. Governor Rod Blagojevich then issued an executive order directing the state to recognize an exclusive representative of Rehabilitation Program personal assistants if they designated one by a majority vote and to engage in collective bargaining over all employment terms within the state’s control. The Rehabilitation Program personal assistants later voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the state. The union and the state negotiated an agreement that set pay rates, created a health benefits fund for personal assistants, and established a joint union-state committee to develop training programs. The agreement also contained a “fair share” provision that required all personal assistants who were not members of the union “to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”

In 2009, Governor Pat Quinn issued an executive order directing the state to recognize an exclusive representative for the Disabilities Program personal assistants if they designated one by majority vote. A majority of Disabilities Program personal assistants, however, rejected union representation. (This vote was not necessarily the final decision on representation. Under state law, a union can request a new vote in the future and can even bypass a vote altogether if it collects a sufficient number of union cards from the personal assistants.)

Personal assistants in both programs sued. Non-union personal assistants in the Rehabilitation Program claimed that the fair-share fees that they were required to pay violated the First Amendment by compelling them to associate with the union. Personal assistants in the Disabilities Program claimed that they were harmed by the mere threat of an agreement requiring fair-share fees.

The district court dismissed the Rehabilitation Program personal assistants’ case on the merits, and it dismissed the Disabilities Program personal assistants’ case because they lacked standing and because their case was not ripe. The United States Court of Appeals for the Seventh Circuit affirmed. (The Seventh Circuit recognized, however, that the Disabilities Program personal assistants’ case could become ripe in the future.) This appeal followed.

CASE ANALYSIS

Compulsory union fees, or fair-share fees, implicate the First Amendment because they represent a form of compelled expressive association. In other words, fair-share fees require non-union-members to support union activities and expression with which they disagree. In particular, the fees require non-members to pay for union expression (in the form of fair-share fees to support collective bargaining), and thus to associate with that expression, even if they do not support it or wish to associate with it.

Still, the Supreme Court has long upheld requirements that non-union members financially support the costs of collective bargaining. Thus in Railway Employees’ Dep’t v. Hanson, 351 U.S. 225 (1956), the Court declined to enjoin a “union shop” agreement between a railroad company and a union that required all employees (whether unionized or not) to pay union dues as a condition of employment—even though a state constitutional “right to work” provision outlawed it. The Court held that the federal Railway Labor Act permitted the union shop agreement and superseded the state constitutional provision. The Court held that the federal act was justified by Congress’s interest in supporting “industrial peace and stabilized labor-management” and in distributing the costs of collective bargaining to all those who benefited from it. The Court upheld the federal act as an exercise of Congress’s power under the Commerce Clause, and ruled that it did not violate the First Amendment insofar as it permitted compulsory fees for collective bargaining activities.

Later, in International Association of Machinists v. Street, 367 U.S. 740 (1961), the Court read the Railway Labor Act not to extend to mandatory fees to finance the campaigns of candidates for federal and state offices. The Court ruled that while the act may authorize mandatory fees for collective bargaining activities (for the same reasons in Hanson), the act would violate the First Amendment if it authorized mandatory fees for political purposes with which an employee disagreed.

Later yet, the Court in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977), drew on the interests in Hanson and Street to uphold a state law that allowed an “agency shop” clause in a collective bargaining agreement in the public sector. The Court ruled that the First Amendment did not prohibit an “agency shop” clause in an agreement between the Detroit Board of Education and its teachers’ union that required non-unionized teachers to financial support the union’s collective bargaining activities. The Court drew upon the government interests in Hanson and Street—supporting “industrial peace and stabilized labor-management” and avoiding “free riders” who refuse to contribute to the union while obtaining the benefits of union representation—and held that they were sufficient to justify the intrusion on First Amendment associational rights.

More recently the Court has chipped away at these principles. Most recently, in Knox v. SEIU, 132 S. Ct. 2277 (2012), the Court signaled that it was prepared to reconsider them entirely. In particular, the Court took aim at the “free rider” justification for “agency shop” agreements, saying that it was “generally insufficient to overcome First Amendment objections” and that it “represents something of an anomaly.” The Court left Abood intact, however, even if it also all but foretold Abood’s demise.

The parties frame their arguments against this history.

Pamela Harris, a personal assistant homecare provider who represents the class of personal assistants who are the petitioners in this case, argues first that Abood should be overruled, because the compulsory fees upheld in the case do not meet the “exacting scrutiny” applicable to compelled associations. She claims that Abood was based on a flawed interpretation of earlier case law, that it relied upon an anomalous justification, and that the compulsory fees upheld in Abood were not necessary for the exclusive representation by the union. In particular, Harris says that the Court borrowed the “labor peace” justification for compulsory fees from earlier case law explaining Congress’ authority to invalidate state laws prohibiting union-shop agreements under the Commerce Clause (and having nothing to do with the First Amendment). She claims the Court wrongly applied this justification to its First Amendment, compulsory association analysis in Abood. The net result, she says, is that the Court in Abood wrongly held that “labor peace” (a justification for federal laws under the Commerce Clause) was sufficient to justify compulsory union dues (in the face of the First Amendment). (Harris says that Justice Powell, joined by Chief Justice Burger and Justice Blackmun, recognized this problem in his concurrence in Abood.) Moreover, Harris contends that Abood’s “free rider” rationale for compulsory fees is an “anomaly,” and “generally insufficient to overcome First Amendment objections” (quoting Knox.) And she says that compulsory fees are not a necessary incident of exclusive representation (again drawing on Knox). For these reasons, Harris claims that Abood should be overruled.

Harris argues next that even if the Court declines to overruled Abood, it should sharply limit the case to its narrow facts. She says that Abood should apply only when the government directly supervises individuals in its workplace and when union representation does not involve matters of public concern. Harris claims that neither condition is satisfied here. She says that unlike the public-school teachers in Abood, Illinois homecare providers are not managed by the state (they are managed by the individuals they serve), and that homecare providers therefore do not fall under the Abood rationale. Moreover, she says that the personal assistants’ expressive association through the union is on a matter of public concern, that is, the operations of the state’s Medicaid program, and not merely the terms and conditions of their employment. Harris contends that the state therefore has no “labor peace” rationale for imposing mandatory fees. And Harris contends that in any event the compulsory fees are not necessary to any larger regulatory purpose, as required by Knox. She claims that if Abood were to allow compulsory expressive association here, it would allow the state to designate compulsory advocates to speak for others whose services are funded by a government program, including the medical industry and government contractors, among others—clearly an absurd result, she says.

Finally, Harris argues that personal assistants in the Disabilities Program are entitled to challenge the mandatory fees. Harris says that those providers need only show a substantial risk that they will be harmed. She claims that they did so, because Governor Quinn’s executive order substantially increases the risk that they will be forced to accept exclusive union representation, and to pay union fees.

The state argues that Abood should not be overruled. The state says that Abood follows from Hanson and Street, and that those decisions are rooted in the First Amendment. The state claims that Harris mischaracterizes those decisions as not relying on the First Amendment and “seek[s] to rewrite the many decisions that rely on [Hanson and Street] for their First Amendment analysis.” The state contends that the Court has relied on Abood’s First Amendment analysis in cases upholding mandatory bar dues (Keller v. State of California, 496 U.S. 1 (1990)), mandatory assessments for fruit producers to contribute to the costs of industry advertising (Glickman v. Wileman Brothers & Elliot, Inc., 521 U.S. 457 (1997)), and a mandatory student activity fees (Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000)). Moreover, the state says that Harris’s claims would threaten the long-held distinction between the government as regulator and the government as employer, because those claims treat the personal assistants’ speech as core political speech on matters of public concern (and not speech over the terms of their employment). (The state points to the Court’s cases on public employee speech, where the Court distinguishes between the government (relatively greater) interests as an employer regulating the speech of its employees and its (relatively lower) interests in regulating the speech of citizens in general, especially core political speech.) Finally, the state claims that Abood and related cases are entitled to stare decisis effect: it says that the Abood rule has not become unworkable, circumstances have not changed since Abood, and both public-sector unions and government have come to rely upon Abood.

Next the state argues that Harris is wrong to claim that its decision to negotiate exclusively with the union alone violates the First Amendment. The state contends that Harris’s argument is foreclosed by Minnesota State Board of Community Colleges v. Knight, 465 U.S. 271 (1984), which, by summary affirmance, sustained a state law granting public employees the right to negotiate through their exclusive representative. Moreover, the state says that granting exclusive representation to the union does not threaten the First Amendment rights of personal assistants, because personal assistants may decline to join the union.

The state argues that Harris’s proposal to limit Abood ignores and minimizes its vital interests. In particular, the state claims that it has an interest in promoting “industrial peace and stabilized labor-management relations” and the need to avoid free-riders. The state says that, contrary to Harris’s position, these interests are “vital” and well sufficient to justify fair-share fees for its employees in these programs that serve the state’s “most vulnerable citizens.” (The state argues that personal assistants are, indeed, its employees, even if they also answer in limited respects to the patients they serve. That’s because the state controls many of the terms and conditions of their employment.) For these reasons, the state claims that its system of collective bargaining satisfies the correct constitutional test, a balancing test (and not strict scrutiny, as Harris would have it.

(SEIU Healthcare Illinois & Indiana, the union that represents the personal assistants in the Rehabilitation Program, presents substantially similar arguments on the constitutionality of the fair-share fees.)

Finally, the state argues that personal assistants in the Disabilities Program have presented only a “hypothetical threat,” and not an injury ripe for adjudication. Moreover, the state says that the personal assistants in the Disabilities Program will not suffer any hardship if judicial resolution of their claim is postponed. (AFCSME Council 31 and SEIU Local 73, the unions that attempted to organize the personal assistants in the Disabilities Program, make substantially the same arguments on justiciability.)

SIGNIFICANCE

Simply stated, this case puts front-and-center the decades-old balance the Court struck in Abood. The Court in that case ruled that fair-share fees do not violate the First Amendment, because the government had sufficiently weighty interests in labor peace and avoiding free-riders. But the Court has chipped away at this principle, most recently in Knox, where the Court went so far as to suggest that it was prepared to reconsider Abood. This case gives the Court that chance.

If the Court overturns Abood, or even if it limits that case, the ruling could deal a serious blow to public sector unions. That’s because fair-share fees are designed to ensure that every employee who gains the benefits of a union’s collective bargaining also shares in the costs of that collective bargaining. In this way, fair-share fees are designed to solve a basic collective action problem: if employees can gain the benefits of collective bargaining without paying the costs, no employee will pay the costs, and the benefits will eventually disappear for all, union or not. Without fair-share fees, public-sector unions would have to carry the weight of non-members without the benefit of their financial support. And with no personal financial incentive to join a union in the first place—why would an employee join a union and pay union dues if he or she could free-ride on the union’s collective bargaining activities?—public union membership and strength will almost surely plummet.

On the other hand, this case gives the Court an opportunity to recalibrate the balance between associational rights and the government’s interests in labor peace and avoiding free-riders—and to privilege the associational rights. In other words, the case gives the Court a chance to better protect the associational rights of non-members. Again, though, this would come at the expense of union strength and the collective bargaining power of all the personal assistants, union or not.

Still, the Court need not go so far. The Court could dodge a ruling on the status of Abood by distinguishing this case on its unique facts. For example, the Court could rule that personal assistants are not employees of the state, and that therefore the state’s interests in Abood do not apply. Or the Court could rule that the personal assistants seek to speak on a matter of pure public concern—lobbying for greater reimbursements under the state’s Medicaid program—and that therefore the mandatory fees warrant greater First Amendment scrutiny than in Abood. Such a ruling would obviously affect these litigants, and other employees and states like them, but it would not (necessarily) upset the basic principles in Abood.