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Harris v. Quinn Threatens Public Unions

June 11, 2014 By Ben Schweigert, Fellow

A U.S. Supreme Court ruling expected in the next few weeks on a case out of Illinois could deal a major blow to public employee unions and could put Minnesota’s drive to unionize home care and child care workers in serious jeopardy.

First, a little context. In 1935, Congress passed the National Labor Relations Act, regulating the formation of unions. But the Act specifically excluded employees of state and local governments, leaving regulation of these unions to the states. Wisconsin was the first state to authorize public employee unions, in 1959, and today approximately three-fourths of the states permit collective bargaining by public employees.

But public employees in those states cannot be compelled to join unions. Instead, in most states, employees in unionized government workplaces who aren’t interested in joining up have another option. Rather than pay “full-share” union dues, they can pay a lesser amount, known as a “fair-share” fee, to reimburse the union for the costs it bears in collective bargaining. After all, the nonmember benefits just as much as the union’s members from the contract the union secures. But the union may not spend any of these fair-share fees for any other purpose, such as political activity.

This distinction protects the First Amendment free speech rights of the nonmembers, by ensuring that their money isn’t used for speech they disagree with. Nonetheless, conservative activists regularly attack this system, arguing either that nonmembers shouldn’t be required to give money to unions under any circumstances or that states shouldn’t permit public employee unions at all. This battle has played out in state houses across the country, but the federal government has largely stayed out, believing that the states should have this power to regulate their own workforces.

That brings us back to the case currently before the Supreme Court. In 2003, the Illinois Legislature authorized the unionization of personal care attendants paid under the state’s Medicaid program. These employees work in the homes of the program’s beneficiaries and are chosen by those beneficiaries, but they receive their paychecks from the state, which withholds taxes, establishes and enforces worker standards, and sets the wage the workers receive. The majority of the workers in the state’s Rehabilitation Program subsequently voted to join a union, which entered into a contract with the state. Each personal care attendant then had a choice: join the union as a full member, or just pay the smaller fair-share fee.

Enter the National Right to Work Foundation (“NRWF”), a conservative organization that opposes unionization. Representing a small group of personal care attendants, the Foundation sued to block the law. It made two principal arguments, one narrow and one more radical. First, it argued that the personal care attendants are not employees of the state, because the Medicaid beneficiaries whose homes they work in have the power to hire, fire, and direct their daily activities. Second, it argued that the state cannot compel them to contribute their fair-share to the union. They contended that the union’s collective bargaining is inherently political activity and that forcing them to support it would violate their First Amendment free speech rights by compelling them to participate in speech they might disagree with.

Let’s pull those arguments apart a little, starting with the first.

Under federal labor laws, a person can have more than one employer. For example, someone working for a temp agency, deployed to a job at another firm, can be the employee of both companies. The NRWF argued that a narrower definition of “employee” should apply, under which the state is not the employer, and therefore can’t require them to pay fees to a union. But the union, joined by the State of Illinois and the U.S. Justice Department, relied on this established federal law to argue that personal care workers are “employed” by the state, even if they are also “employed” by Medicaid beneficiaries.

The NRWF’s second argument is more sweeping. The NRWF argued that the collective bargaining of a public union is always political speech, because it inherently deals with the size of government and how the government spends its money. As a result, the NRWF argued, not only can states not require personal care attendants to pay representation fees to a union, they can’t require any public employees of any kind to pay representation fees to any union, because it would lead to compelled speech that violates the First Amendment.

If the Supreme Court adopts this argument, it would change thousands of workplaces around the country and deal a harsh blow to public unions, allowing public workers to “free-ride” on their bargaining efforts, benefitting from them without paying any of the costs. Adopting this argument would also reverse decades of Supreme Court precedent. The Court has consistently held that a government employer may regulate the speech of its employees, even on matters of public concern, if it has an adequate justification. The Court has also repeatedly upheld the distinction between speech paid for with full-share union dues and that paid for with fair-share fees. And ruling in favor of the NRWF would be a significant federal intrusion into an area of state policymaking of critical importance to state economies and governance.

So what will the Court do? The Court’s five conservative justices are generally no friends to unions and, in a 2012 case, strongly criticized the arguments for public unions. They have also shown no reluctance to overturn Court precedent. But Justice Scalia, at oral argument in this case, seemed reluctant to adopt the NRWF’s position, seemingly concerned that recognizing broad free speech rights for public employees in this context would invite too much other employee litigation against government employers. We’ll know the answer soon enough, and, in the meantime, we in Minnesota can just hold our breath.

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