In the Supreme Court Case of Harris v. Quinn the National Right to Work Legal Defense Foundation, an anti-union group, financed a challenge to the common law doctrine in labor law established in the case of Abood v. Detroit Board of Education [431 U. S. 209] from 1977. In the Abood case some public school teachers objected to the requirement in the Detroit Public School’s collective bargaining agreement that required non-union members to pay a service charge in lieu of union dues. The Supreme Court allowed the requirement as payment for a non-member’s “fair share” as long as the union used the non-member funds only for contract negotiations, contract administration and grievance procedures rather than for political or ideological activities.
The National Labor Relations Act (NLRA) of 1935 as amended and administered by the National Labor Relations Board requires a majority vote in a democratic election to establish a union, and requires the union to represent all employees in the bargaining unit not just its members. Because United States labor law forces a certified union to represent all employees the Supreme Court declared a compulsory surcharge fairly distributes “the cost of the union among those who benefit” and “counter acts the incentive that employees might otherwise have to become ‘free riders.’ ” The court acknowledged in its Abood opinion that such a “fair share” provision has an impact on public employee first amendment rights of free speech; employees might object to policies adopted by the union in its role of exclusive representative.
Service Employees International Union
In the case of Harris v. Quinn concluded in 2014 Illinois used federal funds for a Medicaid Rehabilitation Program designed for Americans unable to live in their own homes without assistance but unable to afford the expense of in-home care. The Rehabilitation program provides federal funds for states to pay personal assistants chosen from a state approved pool of personal assistants who provide the in-home care.
In the 1980’s a majority of Illinois personal assistants voted to have Service Employees International Union represent them as their exclusive bargaining agent. SEIU petitioned the Illinois Labor Relations Board for permission to represent the Personal Assistants as their union, which at first the Board declined to allow. After some delay and discussion the Illinois legislature amended the state’s Public Labor Relations Act by declaring personal assistants working in the Medicaid program to be public employees for purposes of collective bargaining. The Public Labor Relations Act specifically permits a collective bargaining agreement whereby non-union members in the bargaining unit pay an agency fee as their fair share.
In 2010 three personal assistants in the bargaining unit petitioned a federal court for an injunction to end the non-union agency fee as a violation of their rights to free speech under the constitution. Petitioners wanted the court to abandon the common law doctrine established in the Abood case. The District Court and the seventh court of appeals dismissed the petition, but the Supreme Court agreed to hear the case.
Labor and Free Speech
The labor movement has endured 150 years of free speech attacks; nothing is new in Harris v. Quinn. A hundred years ago business owners blamed strikes on outside agitators. Outsiders would come in and stir up the benevolent owner’s happy and contented employees and cause a strike, but he was not going to speak with any labor agitators. Instead he would faithfully defend and protect the liberty and free speech for his loyal employees who did not want to join a union.
There is suspicion that U.S. Courts treat free speech rights for labor unions differently than other free speech rights. A union under U.S. labor law needs a majority vote of employees in a union representation election. It is a democratic vote in a democratic society that elects representatives by majority vote to serve in legislative bodies that in turn make decisions by majority vote. If the U.S. Congress votes to declare war as they sometimes do, not everyone agrees with the vote to go to war. If Courts worried about free speech for the minority who oppose war in the same way Courts worry about free speech for those who oppose unions, then those who oppose war, or other matters of government, could withhold a percentage of their taxes in proportion to federal budget expenditures on a war.
In Harris v. Quinn the Supreme Court voted 5 to 4 to strike down the “fair share” fee for SEIU, but only for the Rehabilitation Program. The majority of five included a long discussion ridiculing the Abood opinion of the 1977 Supreme Court majority, but they decided not to overturn it. Instead they decided to restrict the “fair share” rules to what they called “full-fledged” employees. To have the “fair share” rules apply to personal assistants, they wrote, “. . . asks us to approve a very substantial expansion of Abood’s reach.” Such an expansion has “important practical consequences” which “would invite problems.”
The mention of practical consequences and problems came on page 20 of the 39 page majority opinion. Much of the remaining 19 pages described the conditions of employment as full-fledged employees and how they differed from those of personal assistants they claimed to be partial public employees, but additional discussion infers problems. The majority wrote “Suppose, for example that a customer fires a personal assistant because the customer wrongly believes that the assistant stole a fork. Or suppose that a personal assistant is discharged because the assistant shows no interest in the customer’s favorite daytime soaps. Can the union file a grievance on behalf of the assistant? The answer is no.”
The majority worried that requiring a “fair share” fee for personal assistants in Illinois could bring an expansion beyond full-fledged employees to “individuals who follow a common calling and benefit from advocacy or lobbying conducted by a group to which they do not belong and pay no dues.”
The majority admitted “the wages and benefits of personal assistants have been substantially improved; orientation and training programs, background checks, and a program to deal with lost and erroneous paychecks have been instituted; and a procedure was established to resolve grievances arising under the collective-bargaining agreement . . . and we will assume that this is correct.” But the majority added that “the agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join.” The majority did not reference a previous case for their authority or give an example application for their assertion.
A blunt dissent of 25 pages written for the minority by Justice Kagen treats the majority opinion as a ramble of irrelevant excuses. Kagen would apply the Abood ruling as common law doctrine because “The only point in dispute is whether it matters that the personal assistants here are employees not only of the State but also of the disabled persons for whom they care.” . . . Yet “Illinois sets all the workforce-wide terms of employment. Most notably, the State determines and pays the employees’ wages and benefits, including health insurance (while also withholding taxes).”
Justice Kagan argues that Supreme Court “decisions have long afforded government entities broad latitude to manage their workforces, even when that affects speech they could not regulate in other contexts. . . . The “deci¬sion also enables the government to advance its interests in operating effectively—by bargaining, if it so chooses, with a single employee representative and preventing free riding on that union’s efforts.”
In a more blunt point, the minority argued, the majority declined to overrule the Abood doctrines as requested by the National Right to Work Legal Defense Foundation because it has been used for so long the Supreme Court has come to apply the rule as “a general First Amendment principle.” As such the court has relied on “fair share” rules in deciding cases involving compulsory fees outside the labor context, although not for wars.
Maybe the majority decided it would be too difficult to write a legal justification to throw out compulsory fees just for labor unions, but needless to say they did not write that in their opinion. Ultimately they did accept when a federal law requires a union to provide union services, the government can make a collective bargaining contract to allow the union to be re¬imbursed for their required services. Five justices needed some excuses why it should only apply to “full fledged” employees. It is worth noting that four Supreme Court justices, one district judge and at least two appeals court justices make a majority of federal judges voting to uphold the Abood ruling. However five Supreme Court Justices made up a little bit of law to help their anti-union constituents; just politics as usual.