State governments are becoming effective union organizers. Several employees in Illinois, unhappy over the prospect of being forced to subsidize such an arrangement, are pushing back. And they’ve got themselves an audience at the highest level. On October 1, the Supreme Court agreed to hear an appeal by a group of home care providers objecting to an executive order issued in 2009 by Illinois Democratic Governor Pat Quinn that reclassified their status as “state employee,” so as to bring them under union representation. The class-action case, known as Harris v. Quinn, will test the High Court’s willingness to build on its Knox v. SEIU ruling of last year, which held that a California Service Employees union could not force covered nonunion employees to pay fees to support its political activism. Here, as in the earlier case, worker liberty is at stake.
Unions have found fertile recruiting grounds among government employees, especially at the state and local levels. So pronounced is this tendency that since 2009 overall union membership in the public sector, for the first time in U.S. history, has exceeded that of the private sector. An uneasy alliance of government officials and union bosses brought this trend about. Elected political leaders and agency directors might not like butting heads with unions in contract talks, but they realize each side benefits over the long run from a growing public sector. Unions, especially the SEIU and the American Federation of State, County and Municipal Employees (AFSCME), have enjoyed substantial growth because of this. With new members come more dues collections. This has enhanced the ability of organized labor to donate to supportive political candidates and causes. Once elected (or re-elected), the government officials have every incentive to solidify union power. The 2012 book Shadowbosses, which I reviewed in Union Corruption Update last fall, explained this self-reinforcing cycle in detail.
Dissenting employees pose a real threat to this arrangement. Such employees are covered by a union contract, but are reluctant either to join the union or pay agency fees in lieu of joining, the latter on occasion set almost as high as standard dues. Union officials denounce these workers as “free riders” who want the benefits of wage and benefit hikes without paying for negotiations that make them possible. The dissenters respond, properly, that it is wrong to threaten people with the loss of a job for not wanting to pay for services not requested. Moreover, they argue, dues payments often aren’t worth their cost, especially when unions route sizable portions of the money toward political causes with which dissenters may disagree.
The right to withhold dues or fee payments is more than a preference. It’s an established legal precedent. Several times the Supreme Court has ruled, and in a variety of contexts, that a union can’t apply a worker’s dues/fees to purposes other than standard union business (i.e., other than collective bargaining, contract administration, grievance procedures) without the prior consent of that worker. In the private sector, the Court has advanced this principle in Ellis v. Railway Clerks (1984) and Communications Workers v. Beck (1988). It has done likewise for the public sector in Chicago Teachers Union v. Hudson (1986) and Lehnert v. Ferris Faculty Association (1991). But union leaders over the years have proven resourceful in stonewalling members who seek partial refunds. This intransigence is what brought about the Knox case in California. And even more aggressively, it is what has brought about the Harris case in Illinois.
Illinois, like most states, operates a Medicaid-waiver program that covers the costs of providing personal home care for the disabled. Service providers are: 1) hired by the disabled individuals and/or guardians; or 2) independent contractors. Either way, they are paid out of Medicaid funds. That these workers are paid from a public program, one would think, should not make them public-sector workers. The Service Employees International Union, which represents more than two million employees, many of them health and home care workers across the U.S., thinks it should. And the union has been getting help these past several years from their friends in state government. In March 2003, then-Democratic Governor Rod Blagojevich, whose victorious campaign for governor the previous year was heavily funded by the SEIU, issued an executive order designating Local 880 of that union as the exclusive bargaining agent of home personal care providers. The Illinois legislature, months later, codified the order, designating these providers as “state employees.” Not long after, the State of Illinois and the union signed an agreement mandating the deduction of compulsory dues from Medicaid-based compensation.
As fate would have it, Gov. Blagojevich was removed from office by the legislature early in 2009 in the wake of his arrest the previous December on charges relating to his attempt to sell President-Elect Barack Obama’s then-vacant U.S. Senate seat to the highest bidder as a way of raising campaign cash. He eventually would be convicted by a jury in June 2011 on a variety of corruption-related counts. New Governor Patrick Quinn, who had served as lieutenant governor during the tenure of Blagojevich, continued along the path as his boss. In June 2009, Quinn issued Executive Order 15, reclassifying about 4,500 home care providers as state employees under the Illinois Home-Based Support Services Program, ostensibly for the purpose of being unionized. This was on top of the more than 20,000 providers reclassified as such by Gov. Blagojevich’s original executive order. And it did not carry an expiration date.
SEIU Local 713 petitioned for an election to represent the workers. During the campaign, AFSCME District Council 31 intervened as a rival candidate. In the mail ballot election that fall, the home care workers by a two-to-one margin voted to reject representation by either labor organization. Yet their victory was not settled. The unions retained the authority to request new elections in the future, and under Illinois labor law, bypass an election if they obtain a certain minimum threshold of worker signatures via a card check. Gov. Quinn, predictably, refused to rescind the order.
A number of home care workers did more than simply oppose the idea of being forced to bankroll a union; they took action. On April 22, 2010, Pamela Harris and seven other home care providers filed suit in U.S. District Court for the Northern District of Illinois against the State of Illinois and the two unions. Represented by Bill Messenger, an attorney with the Springfield, Va.-based National Right to Work Legal Defense Foundation, the workers alleged that the State, by forcing the workers to pay dues, had violated their freedom of speech and association without demonstrating a compelling interest. Following an unsuccessful move by the defendants to dismiss, the case was reassigned to U.S. District Judge Sharon Johnson Coleman, an Obama appointee. That November, Coleman dismissed the case on its merits, reasoning that the constitutionality of public-employee monopoly bargaining extends to nonmember workers who receive state funds.
The plaintiffs filed an appeal the following month. The outcome would be the same. On September 1, 2011, a three-judge circuit court panel ruled that because the State of Illinois had a compelling interest in collective bargaining, this interest applies to home care assistants. “The plaintiffs feel burdened fighting to prevent what they view as an unconstitutional collective bargaining agreement,” the decision read. “But many individuals and organizations spend considerable resources fighting to prevent Congress or the state legislatures from adopting legislation that might violate the Constitution. The courts cannot judge a hypothetical future violation in this case any more than they can judge the validity of a not-yet-enacted law, no matter how likely its passage.”
This would not be the end. Pamela Harris and her co-plaintiffs in November 2011 filed an appeal with the U.S. Supreme Court. The principal issue was whether a state may “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 State of Illinois initially waived its right to respond, but on February 29, 2012, the Supreme Court ordered the State to file a response. In April, the State complied. The Court in June invited the U.S. Solicitor General to file a brief. The Solicitor did not file the Justice Department’s brief until May 10 of this year, arguing that the Court should not review the case. The case was listed for conference at least four more times during the 2012-13 term. But the Court adjourned without issuing an order. The case then was relisted for a September 30 conference. The following day, the Court granted certiorari. Oral arguments are expected to be heard next January.
So that’s where things stand for now. Getting the U.S. Supreme Court to overturn a decision by a district court later upheld by an appeals court is an uphill climb. But the plaintiffs have sound arguments. And one need not look any further than the Court’s Knox v. SEIU ruling of last June 21 to find them. Actually, there were two separate rulings. The first was on the merits of the case itself, the second, on the general scope of union power. The respective margins in favor of the dissenting workers were 7-2 and 5-4. In the first ruling, the court ruled that SEIU Local 1000, which represents nearly 100,000 employees, violated the First Amendment by forcing nonmember employees to pay a special assessment to fund a union campaign to oppose several initiatives appearing on the California ballot in November 2005. This extra fee was levied without giving employees ample opportunity to object. In the second ruling, the majority concluded that the First Amendment bars unions from imposing special assessments or fee increases on nonmembers on an opt-out basis.
The majority opinion, written by Justice Samuel Alito, intimated that schemes such as those imposed by SEIU Local 1000 may be unconstitutional for all fees exacted upon potentially unwilling workers, not just fees related to political campaigns. Referring to the Court’s Hudson decision of 1986, the ruling noted that if a union seeks to raise nonmember fees in such a context, it must give workers advance notice via ‘Hudson notices.’ Otherwise, the union violates free speech rights. Alito wrote:
…Hudson, far from calling for a balancing of rights or interests, made it clear that any procedure for exacting fees from unwilling contributors must be ‘carefully tailored to minimize the infringement’ of free speech rights and it cited cases holding that measures burdening the freedom of speech or association must serve a compelling interest and must not be significantly broader than necessary to serve that interest.
There is no justification for the SEIU’s failure to provide a fresh Hudson notice. Hudson rests on the principle that nonmembers should not be required to fund a union’s political and ideological projects unless they choose to do so after having ‘fair opportunity’ to assess the impact of paying for nonchargeable union activities. The SEIU’s procedure cannot be considered to have met Hudson’s requirement that fee-collection procedures be carefully tailored to minimize impingement on First Amendment rights.
Later he argued:
If, as the SEIU argues, it is not possible to accurately determine in advance the percentage of union funds that will be used for an upcoming year’s chargeable purposes, there is a risk that unconsenting nonmembers will have paid too much or too little. That risk should be borne by the side whose constitutional rights are not at stake. If the nonmembers pay too much, their First Amendment rights are infringed. But, if they pay too little, no constitutional right of the union is violated because it has no constitutional right to receive any payment from those employees. (italics mine).
The rather restrictive definition of worker freedom articulated by Abood back in 1977 thus has come a long way. That particular case upheld the right of a Detroit teachers union to force a union shop (as opposed to an agency shop) upon employees. A public employer, at a union’s behest, could require employees to pay dues as long as it excludes political activity. Workers could get a deduction, but were at the mercy of the union; they had no opt-out mechanism of the sort created by Hudson nearly a decade later.
This evolution of public-sector labor law appears to favor the plaintiffs in Harris. Indeed, the Court may well bar unions and political allies from forcing nonunion workers to contribute funds for all purposes, not just those related to politics. Steven Schwinn, an associate professor at The John Marshall School of Law in Chicago, believes as much. Schwinn said in a recent interview: “Knox sent some strong signals about where the court was going with this, and I think that Harris just might be the case that they use to reconsider the rule that unions can require nonmembers to pay fees for union activities. This could be a significant blow to public employee unions because of the way that they operate.”
The alliance between public-sector unions and the politicians who benefit from them is a fact of governance. While public employees have a right to form and join a union, these organizations don’t have a right to exact tribute from reluctant members and nonmembers alike where external politics are concerned. Indeed, one finds it difficult to justify forced tribute for any purpose. Home health workers, as it is, are among the lowest-paid persons in the labor force. Most likely have more pressing matters to attend than financing union political spending. The State of Illinois has no business getting these workers into unions claiming to represent their best interests.