* 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.
- Dan Johnson - Thursday, Oct 3, 13 @ 1:20 pm:
Oh boy. The Roberts Court is about as activist a majority in the last 80 years. That’s not a good sign for labor (and thus for higher wages for working people…and thus for a stronger economy).
- RNUG - Thursday, Oct 3, 13 @ 1:24 pm:
Interesting.
The courts may have ruled in favor of “fair share” fees in the past, but in such challenges they have often ordered the unions to open up their books so the “fair share” could be calculated by an independent auditor, something the union is usually loathe to do.
- Earnest - Thursday, Oct 3, 13 @ 1:49 pm:
It’s an interesting case. SEIU organized Division of Rehabilitation Services home support workers and negotiated an increase. However, these workers were paid directly from budgeted state funds.
The order Governor Quinn gave to allow these particular workers to organize is for the Division of Developmental Disabilities Home Based Services program. For this program, service recipients get a specific monthly budget (3xSSI) and have to fit their services under that cap. Some of these workers are family members, and these are the people most against giving SEIU the right to organize. If the wages are negotiated between SEIU and Illinois, families lose the ability to set the wages themselves and this would be a big impact on the amount of services they could use each month because higher wages would mean fewer hours.
- reelpro - Thursday, Oct 3, 13 @ 2:31 pm:
This whole thing is ridiculous. My daughter is handicapped from brain damage at birth. She has mental and physical handicaps. She goes to The Open Door Rehab Center. She gets the 3x SSI. Most of this money goes to the rehab center. She lives with us and my wife is the personal home assistant. She gets about $300 every two weeks pay. They want my wife to join the union and pay the dues just to take care of our own daughter. We don’t need the money so we use to make life more enjoyable for my daughter. Why should they take money from my daughter to better their union. Ridiculous.
- Anon. - Thursday, Oct 3, 13 @ 2:32 pm:
So the governor wants everyone to be in a union, except for those who work for him. I understand.
- Pam Harris - Thursday, Oct 3, 13 @ 2:33 pm:
Thank you, for sharing the SCOTUS decision to grant cert in Harris v Quinn. Governor Quinn (following Blagojevich’s playbook) issued an executive order that allows the union to take Medicaid funding (state and federal dollars) intended to support our significantly disabled sons and daughters decreasing critical services needed to keep them out of state-operated developmental centers.
At least seventeen states have pushed to unionize workers who are not state employees, but who indirectly receive state subsidies. States should not be able to designate providers as “public employees” of the State solely for purposes of unionization, but explicitly for no other purpose.
- Mason born - Thursday, Oct 3, 13 @ 2:43 pm:
Reelpro
Brings up a very good point. If the union isn’t negotiating and enforcing a labor contract what “fair share” costs need to be covered? I fear this may be a very bad case for the unions.
- Chi - Thursday, Oct 3, 13 @ 3:16 pm:
“We don’t need the money”
Everyone is not in the same financial situation as you.
SEIU is not taking the money to “better the union”. The idea is that but for the union, your wife would not be getting the $300 every two weeks. She would be getting a lesser amount. She should pay for the bargaining that she (and your daughter) benefits from. Otherwise she is a free rider, and it’s unfair to those that pay. She does not have to join the union, and in fact can work to oust the union by election, in which case there will be no bargaining, no fair share fees, no dues. But a majority of the home healthcare workers want the union there. Democracy rules.
And to RNUG’s point, in Illinois public employee unions have to have an audit of their finances to determine what the fair share is, and post it in the workplace. Whether they are “loathe” to do it or not, it’s the law.
- zatoichi - Thursday, Oct 3, 13 @ 3:20 pm:
Most personal care workers are making slightly over minimum wage because that is what the rates paid allow. That 3xSSI is a set rate. A move from $9 an hour to $11 means fewer hours of assistance service and fewer hours worked so the worker nets about the same. Unless the 3xSSI rate is bumped, where do those extra dollars come from? Worker also starts paying dues. If dues are about $15 a month it is almost a wash and maybe a slight loss.
- Legal Eye - Thursday, Oct 3, 13 @ 3:21 pm:
As an attorney who has an interest in watching the Roberts court operate, that court taking this case does not bode well for public employee unions. It looks like we’ll hear about another 5-4 decision next year containing very broad language which will just cripple public employee unions. This is the most activist SCOTUS since the hey day of the Earl Warren Court 50 years ago, but on the opposite end of the political spectrum. Say one thing about GOP Presidential administrations. Ever since the “Reagan Revolution”, they make federal judicial appointments a top priority and the Roberts’ Court’s conservative activism is a result.
- Chi - Thursday, Oct 3, 13 @ 3:23 pm:
“A move from $9 an hour to $11 means fewer hours of assistance service and fewer hours worked so the worker nets about the same. Unless the 3xSSI rate is bumped, where do those extra dollars come from? Worker also starts paying dues. If dues are about $15 a month it is almost a wash and maybe a slight loss.”
If you offered me the same salary but fewer hours, I’d take it in a heartbeat. At any rate, it’s the workers’ decision to make. That’s part of the purpose of a union.
- Reality_Bites - Thursday, Oct 3, 13 @ 3:27 pm:
“An Illinois executive order and law declares all personal home assistants to be public employees…”
Since I am now, as a home personal assistant, a “state employee”, does that mean I suddenly have state-provided health benefits? Vacation time? 401k?
No?
Illinois’ Home Services Program pays its PAs (be they certified or laymen) $11.55/hr to take care of people with physical disabilities. Someone please explain to me why these people think I should be forced to give Any part of my all-too-small, hard-earned paycheck to a union that isn’t doing anything to take care of me.
- Rich Miller - Thursday, Oct 3, 13 @ 3:32 pm:
===to a union that isn’t doing anything to take care of me. ===
I assume you have some contractual rights that you didn’t have before the union? Also, before the assistants were unionized, salaries depended almost solely on the beneficence of the General Assembly.
- RNUG - Thursday, Oct 3, 13 @ 3:35 pm:
Chi @ 3:16 pm:
There didn’t use to be a requirement to show how the fair share was calculated. Going back a lot of years, I remember a case with some non-union member IDOR workers that was settled out of court with full refund of all fees once the union was ordered to open their books … and a new, lower, fair share put in place.
- phocion - Thursday, Oct 3, 13 @ 3:38 pm:
And this post shows why the Capitol Fax blog (and Capitol Fax - I’m a subscriber) is the most comprehensive public policy news source in Illinois. Great work, Mr. Miller!
- corrections - Thursday, Oct 3, 13 @ 3:38 pm:
Just a couple of points of correction — SEIU, or any union, is not taking ANY dues from the DD HBSS workers. The “3xSSI” folks are not in a union (they voted the union down) and are not paying any dues - members or not.
The DHS-DRS personal assistants are in SEIU, and have a different structure - i.e. the max amount of money is not limited to 3xSSI.
The lawsuit that the USSC will now hear addresses both groups of workers, in slightly different ways. The 7th Circuit rules that the DD HBSS workers’ issue in the suit was not ripe, as the workers voted down the union and have no issue to complain about, as they don’t have to pay for fair share fees as they don’t have a union.
- Juvenal - Thursday, Oct 3, 13 @ 4:03 pm:
I agree this is ominous for the union, but it is also ominous for personal care providers and those they care for.
to Rich’s point, the rates are what they are because the union fought for them.
And a point not made here yet is that at the time of the legislation, both SEIU and AFSCME were scrambling to represent workers.
Imagine the chaos, and the unfairness, of separate rates being set all over the state based on whether or not you were a unionized caregiver or relative caregiver, and which union you belong to.
And make no mistake, relative caregivers, with only so much money to go around, every penny SEIU won at the bargaining table would have been a penny out of your pocket.
- Pam Harris - Thursday, Oct 3, 13 @ 4:09 pm:
Corrections - The 3xSSI folks are not in a union. The 3xSSI folks are adults with significant disabilities who have access to a monthly fund of 3xSSI to pay for specific supports and services ONLY one of which personal support care. Question 2 before the Court is whether the lower court erred in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review. We have plenty to complain about. Starting with our Governor refusing to rescind the executive order subjecting families to aggressive union organizers again and again. And I can’t emphasize this enough . . . taking the critically-needed funding intended for my son and other HBSS participants to access the supports and services.
- corrections - Thursday, Oct 3, 13 @ 4:14 pm:
==The 3xSSI folks are not in a union==
Umm — that is what I said.
==taking the critically-needed funding intended for my son and other HBSS participants to access the supports and services.==
Zero funding has been taking away from your son or other HBSS participants. Zero.
And why? Because the process worked. You and your fellow HBSS workers were given the right to choose whether or not you wanted a union, and you decided no. The system worked. And you got what you want.
- Pam Harris - Thursday, Oct 3, 13 @ 4:32 pm:
The psychological impact that any threat or actual reduction of assistance has on Individuals in the HBSSP and their families is serious. Money earned by families via this program is often used to further support the individual. A loss of funds could force institutionalization.
An union can file for an election every year because Executive Order 15 does not expire. This will cause great disruption and stress to families who will be forced to take action again and again.
Because the state gave both SEIU and AFSCME our names and addresses, the aggressive campaign was relentless and took place in our home.
- Rich Miller - Thursday, Oct 3, 13 @ 4:44 pm:
===the aggressive campaign was relentless and took place in our home. ===
Well, that is your place of employment, right?
- corrections - Thursday, Oct 3, 13 @ 4:44 pm:
==The psychological impact that any threat or actual reduction of assistance has on Individuals in the HBSSP and their families is serious. ==
That is fair — can you point out how Home Service Program consumers have lost hours because of increases in wages that SEIU has won in that program? In fact, it is my understanding that SEIU has fought very aggressively (and successfully) to stop cuts to services and eligibility in the program, despite increases in wages.
I understand your apprehension, but it doesn’t seem to align with what SEIU has done in the other home care program.
- corrections - Thursday, Oct 3, 13 @ 4:50 pm:
==Illinois’ Home Services Program pays its PAs (be they certified or laymen) $11.55/hr to take care of people with physical disabilities. Someone please explain to me why these people think I should be forced to give Any part of my all-too-small, hard-earned paycheck to a union that isn’t doing anything to take care of me.==
Hasn’t SEIU significantly increased wages? And started health insurance in the past few years?
- Taxpayer - Thursday, Oct 3, 13 @ 6:02 pm:
@reelpro-How did you get them to pay a parent to take care of their own child? That is not normally covered in most cases. What do you need to do exactly to qualify for those payments?
- Pam Harris - Thursday, Oct 3, 13 @ 7:02 pm:
HBSS participants require around the clock care. IL pays approx. $150,000 per resident in the state-operated developmental centers (institutions). This waiver about $2,100/month, is intended to cover all of the supports and services an individual needs to live at home. Often times, a portion of this is used to pay for personal support care. The state allows a relative to perform these services. It is safer and preferred by the individual with disabilities. For a few hours a day, I provide this care with strict adherence to an individual service plan and I provide monthly reports and am visited 10 times a year by a state official.
- Harry - Thursday, Oct 3, 13 @ 11:31 pm:
Pam Harris is my sister-in-law and she and her husband care for their severely disabled son at home. Most people with his condition are long daed at his age. They receive a modest amount of financial assistance from the State in order to do so. It is one thing to say that actual employees in an arm’s length commercial relationship with their clients are in some sense State employees, and entirely something else to say that if you are caring for a loved one in yours or their home and get some State financial assistance to do so, that makes your relationship with your own flesh and blood a business relationship governed by collective bargaining and union dues. THAT is outrageous, insulting, and vile. SEIU is evil and they can all go to hell as far as I am concerned.
- steve schnorf - Friday, Oct 4, 13 @ 12:03 am:
Man, this general issue has been going on for a long time, certainly at least back to the early 90s when I was at CMS and was sued for allowing some of the home care workers to organize
- Harry - Friday, Oct 4, 13 @ 12:03 am:
And I will add–Pam and her husband are in no way State employees by any normal definition–if injured they do not have Workers’ Comp, if their son dies and therefore the “job” stops, they don’t get Unemployment, they are not in a State pension plan or get employee health care or quialify for retiree health care. Depending on the mode of pay, you might stretch a point and call them independent contractors, but employees to be represented by a union in a closed shop is absurd–and if that is what in the end the law says, well, the law is an ass.
- Earnest - Friday, Oct 4, 13 @ 9:04 am:
>>===the aggressive campaign was relentless and took place in our home. ===
>>Well, that is your place of employment, right?
One of the reasons for feeling invaded is the protections families have regarding their child having a disability…they have the DD/MH Confidentiality Act, HIPAA, etc. Plus, in no way, shape or form are people in the program (again, not the program already organized by SEIU, which is a different thing altogether) state employees.
I think both AFSCME and SEIU missed an opportunity to increase membership among community providers. They have been perceived as very successful in advocating for their state employees but it has been seen as being at the expense of community-based services. State employee wages have increased (and I think that’s fair) but it’s been happening at the same time community-based funding has been cut. If they had championed funding for services in the community as well people like these parents might be more receptive to their advances.
- Marquetta Drought - Tuesday, Oct 8, 13 @ 8:44 pm:
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