WASHINGTON – The Supreme Court heard an oral argument last week on a case that could have huge implications for unions and compulsory unionization among government workers in some states.
The case, brought by Pamela Harris and seven other workers who provide home-based assistance to patients in Illinois under two state programs, challenges the states’ authority to force workers to pay union dues.
Some of the eight plaintiffs are covered by an agreement between a public union and the state of Illinois that forces them to pay union dues even though they do not belong to the union. Others belong to a separate group of home-based healthcare providers that have so far voted against unionization.
The state of Illinois subsidizes the costs of homecare services offered to qualifying participants under two programs: the Disabilities Program and the Rehabilitation Program. Under these two programs, disabled participants or their guardians are responsible for developing plans of care, and hiring and supervising their caregivers.
Harris receives a $2,100 monthly stipend from the Disabilities Program to offset the cost of caring for her son Josh, who suffers from a rare genetic syndrome that has left him intellectually disabled and unable to control his body.
Under Illinois law, the state may compel home-based healthcare workers to pay a fee to cover their share of collective bargaining costs. This includes people who take care of disabled relatives, like Harris, and who do not want to belong to a union.
In 2003, former Illinois Governor Rod Blagojevich issued an executive order classifying home-based workers under the Rehabilitation Program as public employees, but only for collective-bargaining purposes. A few months after coming into office, Blagojevich designated the Service Employees International Union (SEIU), one of his main backers, as the collective bargaining representative of homecare workers under this program.
Current Illinois Governor Pat Quinn signed in 2009 a nearly identical executive order that targeted service providers, known as personal assistants, under the Disabilities Program. The mandate directed the state to recognize an exclusive representative for the program’s personal assistants.
Providers under the Disabilities Program, however, defeated the efforts of SEIU and the American Federation of State, County, and Municipal Employees to become their exclusive representative through a mail-in ballot in October 2009. The executive order remains in effect, however, so the state could designate another union to act as their exclusive representative.
In 2010, Harris and the other plaintiffs sued Quinn and the unions and claimed that their “fair share” fees violated their freedom of speech and freedom of association rights under the First and Fourteenth Amendments.
A district court dismissed the case, citing long-standing Supreme Court precedent that mandatory union dues can be collected to support non-political activities. The 7th U.S. Circuit Court of Appeals in Chicago affirmed that ruling and concluded that these home-based healthcare workers were employed by the state of Illinois.
In October 2013, the Supreme Court decided to take the case.
The Supreme Court has historically upheld the compulsory unionization of state employees. In Abood v. Detroit Board of Education, the highest court determined that mandatory representation promotes the state’s interest in maintaining “labor peace” among its workforce. This means that the government, just like any private employer, could require dues payments to prevent employees from “free riding” on union representation.
The Supreme Court, however, has drawn a line to protect workers’ First Amendment rights. Workers can be compelled to pay dues that go to collective bargaining for wages and benefits, so long as those that object to pay the portion of those fees going to ideological activities are allowed to opt out.
Speaking at the Heritage Foundation on Friday, National Right to Work Legal Defense Foundation attorney William Messenger, who represents Harris and the other workers, said the state is effectively forcing these individuals to support lobbying officials for causes they oppose.
“The SEIU is acting as a compulsory lobbyist. The state is forcing them to support the SEIU to lobby the state over its Medicaid program,” Messenger said.
The plaintiffs argue that they should not be classified as state workers because they can be terminated by the individuals who employ them.
“We also argue that no one should be compelled to pay dues as a condition of employment, much less being a service provider,” Messenger said.
U.S. Solicitor General Donald Verrilli, who argued in support of the union position during Tuesday’s argument, said that collecting dues from home-based care providers was justified because the union has a legal duty of fair representation. He said this requires the unions to protect all employees in the bargaining unit whether they belong to the union or not, and therefore, creates a “free-rider” problem since by law everybody will get the benefit.
James Sherk, a senior policy analyst in labor economics at the Heritage Foundation, said organizing home-based workers has been among the labor movement’s main prospects for adding to its dwindling membership numbers.
Beginning in the 1990s, public unions in California, Washington, and Illinois began to target home-based healthcare workers.
“Unions have found out they have maxed out on their government employees so they have tried to create a new definition of government employee,” Sherk said.
He said homecare workers comprise one-third of the SEIU’s 1.9 million membership.
“This is the reason why in the last decade the SEIU has been the fastest growing union in the United States,” Sherk said. “This has been a tremendous growth industry for them.”
Sherk said adding home-based healthcare workers to the unions is “all upside” to them because, unlike in a traditional collective bargaining situation, there are no expenses.
“In traditional collective bargaining you have grievances to file, you have a contract that you have to negotiate and enforce. But if you’re representing an at-home daycare provider or a parent taking care of his or her disabled children getting a Medicaid subsidy check, there’s no contract that you have to negotiate and enforce, and there are no grievances,” Sherk said. “This is just pure profit to the SEIU.”
According to documents obtained by the Illinois Policy Institute under a Freedom of Information Act request, the SEIU rakes in about $10 million from the Rehabilitation Program alone. The documents also revealed the union received $52 million from homecare workers between 2008 and 2013.
The Supreme Court is expected to announce a decision by June.
“The implications could be very significant. Obviously if they overrule Abood, it means that no government employee, much less a service provider, can be forced to pay fees to a union as a condition for keeping their job,” Messenger said. “Even a more narrow ruling that just providers cannot be forced to support a union would itself have broad effects.”