* The US Supreme Court agreed to hear an Illinois government-related case this week that went mostly unnoticed in the Illinois media. From Jurist.org…
In Harris v. Quinn [docket; cert. petition, PDF] the court will determine whether a state can “compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs.”
The US Court of Appeals for the Seventh Circuit held [opinion] that “a collective bargaining agreement that requires Medicaid home-care personal assistants to pay a fee to a union representative [does not] violate the First Amendment.” The court also ruled, “we lack jurisdiction to consider the claims of plaintiffs who have opted not to be in the union. Because they are not presently subject to mandatory fair share fees, their claims are not ripe.”
* This is from the Pacific Legal Foundation’s blog…
An Illinois executive order and law declares all personal home assistants to be public employees, for the sole purpose of being represented by a collective bargaining unit of the Service Employees International Union (SEIU) that seeks to lobby for greater government spending (Medicaid) on home healthcare. Several personal home attendants, represented by the National Right to Work Legal Defense Foundation, sued, but the district court and Seventh Circuit upheld the order and law.
PLF joined the Center for Constitutional Jurisprudence in an amicus brief written by Tom Caso, urging the U.S. Supreme Court to answer that question, and today the Court agreed to do so. PLF will continue working with CCJ on the merits brief, arguing that compelling personal care providers to be deemed public employees for the purpose of being represented by a union violates the First Amendment guarantee that Americans cannot be compelled to speak or associate, or petition the government, against their wishes. Moreover, we will argue that lobbying is not a legitimate “collective bargaining” function.
* I checked the indispensable SCOTUS Blog and they have one link to a Law Professors Blog Network post by Steven D. Schwinn…
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. […]
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). […]
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.
More details here.
* From the CATO Institute, which filed an amicus brief urging the USSCt to accept the case…
We argue that the forcible unionization of home healthcare workers serves none of the compelling purposes for public-sector unionization that have been articulated by the Supreme Court. Because the Court has long recognized that unionization impinges certain constitutional rights, it has limited public-sector collective bargaining to those situations which advance the aims of promoting “labor peace” and eliminating “free riders.”
Labor peace is promoted by limiting competing workplace interests from bargaining over the conditions of employment — for example, two unions at the same workplace representing different colleagues.
Free riders are non-union employees who enjoy the benefits of union-achieved gains without paying into the union’s war chest. But neither aim is promoted by a system, such as Illinois’s, in which employees work in different locations and in which the customer — the disabled person paying the homecare worker through a Medicaid disbursal — still controls every crucial aspect of the employment relationship, including hiring and firing. This last fact is most telling: the Illinois law only allows collective bargaining for higher wages and more generous benefits.
That is, the law is only about speech — petitioning the government for higher wages and benefits — and does not address workplace conditions at all.
As more and more states push to unionize more workers who indirectly receive government money — campaigns that, in face of dwindling private-sector union membership, have been called “labor’s biggest victory in over sixty years” — it is vital that the Supreme Court articulate a limiting principle on this practice. Otherwise, more and more of us will be forced to interact with our representatives only through government — appointed bodies.
* From SEIU…
We’re confident that the Supreme Court will honor its own precedent and reaffirm that unions are entitled to collect reduced fees from non-members to cover the costs of negotiating wage increases and other benefits on their behalf.
There is a long legacy of previous Supreme Court decisions finding that “fair share fees” – reduced fees that unions charge to non-members to represent them in collective bargaining – are fully constitutional.
If the Supreme Court rules any differently in the Harris case, it will abandon a position it has established and reinforced repeatedly. That is why we’re anticipating that the Supreme Court will uphold the rulings of both the federal and district courts in the Harris case, each of which rejected the effort to invalidate fair share fees paid by non-union home care personal assistants in Illinois. […]
So far two federal courts have firmly rejected efforts to void fair share fees and all the benefits it has generated for Illinois home care workers and their consumers. We’re confident the Supreme Court will make the same decision.