Split US Supreme Court: Partial Public Employees Can’t Be Required To Pay Union Fees

Split US Supreme Court: Partial Public Employees Can’t Be Required To Pay Union Fees

 WASHINGTON, D.C. — (Mealey’s) A class of in-home care providers, classified as “partial public employees,” who do not wish to join or support a union cannot be required to pay an agency fee, a split U.S. Supreme Court ruled this morning (Pamela Harris, et al. v. Pat Quinn, Governor of Illinois, et al., No. 11-681, U.S. Sup.; See February 2014, Page 18) [lexis.com subscribers may access Supreme Court briefs and an enhanced opinion for this case].

Abood Deemed Questionable

In so ruling, the Supreme Court majority rejected the State of Illinois’ request to uphold the Seventh Circuit U.S. Court of Appeals’ ruling, which found that the case was controlled by Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) [an enhanced version of this opinion is available to lexis.com subscribers] , and took the time to criticize the ruling in Abood

“The Abood Court seriously erred in treating [Railway Employees v.] Hanson [351 U.S. 225] [enhanced version] and [Machinists v.] Street [367 U.S. 740] [enhanced version] as having all but decided the constitutionality of compulsory payments to a public-sector union.  . . .  Street was not a constitutional decision at all, and Hanson disposed of the critical question in a single, unsupported sentence that its author essentially abandoned a few years later.  . . .  Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector.  . . .  Abood failed to appreciate the conceptual difficulty of distinguishing the public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.  In the private sector, the line is easier to see.  . . .  Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either ‘chargeable’ (in Abood’s terms, expenditures for ‘collective-bargaining, contract administration, and grievance-adjustment purposes’) or nonchargeable (i.e., expenditures for political or ideological purposes).  . . .  Finally, a critical pillar of the Abood Court’s analysis rest on an unsupported empirical assumption, namely, that the principle of exclusive representation in the public sector is dependent on a union or agency shop,” Justice Samuel Anthony Alito Jr. wrote for the majority.

Turning back to the appeal at hand, the court said that “[b]ecause of Abood’s questionable foundations, and because the personal assistants are quite different from full-fledged public employees, we refuse to extend Abood to the new situation now before us.  Abood itself has clear boundaries; it applies to public employees.  Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems.”

Not Constitutional

Because Abood is not controlling, the majority next turned to the constitutionality of the payments and determined that the payments did not pass First Amendment scrutiny.

“Agency-fee provisions unquestionably impose a heavy burden on the First Amendment interests of objecting employees.  . . .  And on the other side of the balance, the arguments on which the United States relies — relating to the promotion of labor peace and the problem of free riders — have already been discussed.  Thus, even if the permissibility of the agency-shop provision in the collective-bargaining agreement now at issue were analyzed under Pickering [v. Board of Ed. of Township High School Dist. 205, Will Cty. (391 U.S. 563 [1968]) [enhanced version] ], that provision could not be upheld,” the court said.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined in the majority opinion.

Trying To Unionize

A group of in-home care providers in Illinois filed a class complaint against the Illinois governor, SEIU Healthcare Illinois & Indiana, SEIU Local 73 and AFSCME Council 31 in the U.S. District Court for the Northern District of Illinois in 2010.  Some of the providers are part of the Home Services Program administered by the Division of Rehabilitation Services, and others are part of the Home Based Support Services Program administered by the Division of Developmental Disabilities.

In the mid-1980s, the providers in the programs sought to unionize and collectively bargain with the state.  The State Labor Relations Board, however, found that the personal assistants were in a unique employment relationship and that it lacked jurisdiction over that relationship because the state was not their sole employer.

In 2003, the Illinois Public Labor Relations Act was amended to designate “personal care attendants and personal assistants working under the Home Services Program” as state employees for the purposes of collective bargaining.  The then-governor issued an executive order directing the state to recognize an exclusive representative for Rehabilitation Program personal assistants if they designated one by majority vote and to engage in collective bargaining concerning all employment terms within the state’s control.

Later that year, a majority of the approximately 20,000 Rehabilitation Program personal assistants voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the state.  The union and state negotiated a collective bargaining agreement (CBA) that included a “fair share” provision requiring “all Personal Assistants who are 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.”

Other Unionization Attempt

In 2009, Gov. Pat Quinn issued an executive order directing the state to recognize an exclusive representative for the Disabilities Program personal assistants, if a majority so chose.  SEIU Local 713 petitioned for an election to become that representative, and AFSCME Council 31 intervened in the election as a rival candidate.  In a mail ballot election, however, a majority of the approximately 4,500 Disabilities Program personal assistants rejected representation by either union.

In the class action, filed in 2010 in the District Court, the Rehabilitation Program assistants claimed that the fair share fees they were required to pay violated the First Amendment to the U.S. Constitution by compelling their association with, and speech through, the union.  The Disabilities Program plaintiffs argued that although they did not yet pay fees, they are harmed by the mere threat of an agreement requiring fair share fees.

The District Court dismissed the Rehabilitation Program plaintiffs’ claims for failure to state a claim upon which relief could be granted.  It dismissed the Disabilities Program plaintiffs’ claims for lack of subject matter jurisdiction because they lacked standing and their claims were not ripe.  The plaintiffs appealed.

Constitutionally Sound

A Seventh Circuitpanel found the case was controlled by the Supreme Court’s ruling in Abood and ruled that the CBA that requires personal assistants to pay a fee to a union representative does not violate the First Amendment, regardless of the amount of those fees or how the union uses them.  However, the panel found that it lacked jurisdiction to consider the claims of plaintiffs who have opted not to be in the union.

The personal assistants petitioned the U.S. Supreme Court on Nov. 29, 2011.  Oral arguments were held Jan. 21, 2014.

Dissenting Opinion

Justice Elena Kagan wrote a dissenting opinion holding that Abood answers the question presented in this case.  “Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf of better terms of employment.  That is exactly what Illinois did in entering to collective bargaining agreements with the Service Employees International Union Healthcare (SEIU) which included fair-share provisions.  Contrary to the Court’s decision, those agreements fall squarely within Abood’s holding,” she wrote.

In addition, she rejected the majority’s criticisms of Abood.  “Abood is not, as the majority at one point describes it, ‘something of an anomaly,’ allowing uncommon interference with individuals’ expressive activities.  . . .  Rather, the lines it draws and the balance it strikes reflect the way courts generally evaluate claims that a condition of public employment violates the First Amendment,” Justice Kagan opined.

However, she noted that while the “majority cannot resist taking potshots at Abood . . . it ignores the petitioners’ invitation to depart from principles of stare decisis.  And the essential work in the majority’s opinion comes from its extended (though mistaken) distinction of Abood . . . not from its gratuitous dicta critiquing Abood’s foundations.  That is to the good — or at least better than it might be.  The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation.  Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined in the dissent


William L. Messenger of National Right to Work Legal Defense Foundation in Springfield, Va., represents the workers.  Paul M. Smith of Jenner & Block in Washington and Scott A. Kronland of Altshuler Berzon in San Francisco represent SEIU Healthcare Illinois & Indiana.  Solicitor General Michael A. Scodro and Deputy Solicitor General Jane E. Notz of Chicago represent the governor.  Joel A. D’Alba of Asher, Gittler & D’Alba in Chicago represents SEIU, Local 73.  Jacob H. Huebert of Liberty Justice Center in Chicago represents Illinois Policy Institute.  John M. West of Bredhoff & Kaiser in Washington represents AFSCME Council 31.

Solicitor General Donald B. Verrilli Jr. of Washington filed an amicus brief on behalf of the United States.  Gregg M. Adam of San Francisco filed an amicus brief on behalf of Public Safety Employees.  Michael E. Avakian of Center on National Labor Policy Inc. in North Springfield, Va., filed an amicus brief on behalf of Family Child Care Inc., et al.  Samuel R. Bagenstos of Ann Arbor, Mich., filed an amicus brief on behalf of American Association of People with Disabilities, the Disability Rights Education and Defense Fund, the Judge David L. Bazelon Center for Mental Health Law, the National Council on Aging and Other Disability and Senior Organizations.

Michael A. Carvin of Jones Day in Washington filed an amicus brief on behalf of California Public School Teachers, the Christian Educators Association International and the Center for Individual Rights.  Anthony T. Caso of the Center for Constitutional Jurisprudence in Orange, Calif., filed an amicus brief on behalf of Center for Constitutional Jurisprudence and Pacific Legal Foundation.  James B. Coppess of American Federation of Labor and Congress of Industrial Organizations in Washington filed an amicus brief on behalf of American Federation of Labor and Congress of Industrial Organizations.  Charlotte Garden of Seattle University School of Law in Seattle filed an amicus brief on behalf of labor law professors.

Pamela S. Karlan of Stanford Law School in Stanford, Conn., filed an amicus brief on behalf of The Paraprofessional Healthcare Institute.  Thomas R. McCarthy of Wiley Rein in Washington filed an amicus brief on behalf of Albert Contreras, Patricia Griggs and Jonathan Kiss.  John W. Nields Jr. of Covington & Burling in Washington filed an amicus brief on behalf of 21 past presidents of the D.C. Bar.  Alice M. O’Brien of the National Education Association in Washington filed an amicus brief on behalf of the National Education Association, California Teachers Association and Change to Win.

Michael J. Reitz of Mackinac Center for Public Policy in Midland, Mich., filed an amicus brief on behalf of Mackinac Center for Public Policy.  David B. Rivkin Jr. of Baker & Hostetler in Washington filed an amicus brief on behalf of Cato Institute and National Federation of Independent Business.  Charles A. Rothfeld of Mayer Brown in Washington filed an amicus brief on behalf of Homecare Historians.  Solicitor General Barbara D. Underwood in New York filed an amicus brief on behalf of the States of New York, Arkansas, Delaware, Hawaii, Iowa, Kentucky, Maine, Minnesota, Missouri, New Hampshire, New Mexico, Pennsylvania, Rhode Island and Vermont and the District of Columbia.  Deputy Solicitor General Laura J. Watson of Olympia, Wash., filed an amicus brief on behalf of the States of California, Connecticut, Maryland, Massachusetts, Oregon and Washington.

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