Narrow Supreme Court Ruling Has Public Unions’ Nonmember Fees on Thin Ice

By Mark Walsh & Lauren Camera — June 30, 2014 8 min read
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[Updated 12:30 p.m.]

In a narrow ruling that could impede teachers’ unions’ efforts to expand membership, the U.S. Supreme Court ruled Monday that eight Illinois home health-care workers cannot be required to contribute union bargaining fees.

In the 5-4 decision, Justice Samuel A. Alito Jr. wrote for the majority in Harris v. Quinn (Case No. 11-681).

Teachers’ unions escaped a potentially major setback since the court did not go as far as overruling the 1977 Abood v. Detroit Board of Education precedent, which would have dealt a blow to collective-bargaining rights, among other things.

“Because of Abood‘s questionable foundations ... we refuse to extend Abood to the new situation now before us,” Alito wrote. “If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line, and we therefore confine Abood‘s reach to full-fledged state employees.”

Alito was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Justice Elena Kagan wrote a dissent joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor.

Kagan said the majority’s opinion “blinks decades’ worth of” precedent on public-sector collective bargaining, but ultimately did not impose “a right-to-work regime for all government employees.”

“The good news out of this case is clear: The majority declined that radical request,” Kagan wrote. “The court did not, as the petitioners wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought necessary and appropriate to make collective bargaining work.”

Even still, the ruling comes at a precarious time for teachers’ unions. With membership numbers dropping drastically over the last few years, its purse strings and political clout are in jeopardy.

The National Education Association lost more than 230,000 members over the last three years, and is in the throes of an important recruitment campaign. In 2012, the NEA estimated that by the end of its 2013-14 budget cycle, it would lose 308,000 full-time members and experience a decline in dues revenue projected at some $65 million in all.

In reacting to the decision today, the teachers’ unions barely acknowledged that they had dodged a bullet when the court declined to overrule Abood.

“While the court upheld the importance of collective bargaining and unions to families and communities, let’s be clear that working people, who have aspired to the middle class and tried to make a better life for their families, have taken it on the chin for years,” American Federation of Teachers President Randi Weingarten said in a statement. “This court has built a record of weakening the rights of both voters and working families; no one should be surprised by this decision.”

Dennis Van Roekel, the president of the National Education Association, said in an interview with Education Week that the justices “knocked down a very ingenious way to give a voice to people—the working people. ... We’re in full support of the other labor unions involved in this. We’re going to continue to fight for the working people, and bargaining is the way to do that.”

Illinois Home-Health Workers

The case involved eight Illinois home health-care workers who declined to join a union and objected to paying agency, or “fair-share,” fees for being represented by one.

The health-care workers serve under a Medicaid program designed to encourage the states to de-institutionalize some people with disabilities. The workers were getting paid about $7 per hour, with high rates of turnover and low morale, when Illinois decided to make them state employees for collective-bargaining purposes and to certify a unit of the Service Employees International Union as their bargaining representative.

In rejecting the challenge to the service fees by the home health-care workers who object to union membership, the U.S. Court of Appeals for the 7th Circuit, in Chicago, held in 2011 that the state largely controlled the employment of the program’s home-health workers and thus a key Supreme Court precedent on public-employee collective bargaining applied to their arrangements.

The National Right to Work Legal Defense Foundation of Springfield, Va., which represents the objecting workers, broadened the scope of their case by asking the Supreme Court to overrule Abood v. Detroit Board of Education, a key 1977 decision that authorizes teachers’ unions and other public-employee labor organizations to collect service fees from non-members for costs related to collective bargaining.

“Our position is that in the public sector when government is involved, compulsory fees are illegal under the First Amendment” because they compel individuals to support causes against their will, William L. Messinger, the foundation’s chief lawyer, had told the justices at oral arguments in January.

In Abood, the Supreme Court upheld a Michigan law that designated a single union as the exclusive bargaining agent for Detroit teachers. Adopting some of its precedents on union shop agreements from the private sector, the court said teachers in public school districts could be required to pay compulsory union fees for collective bargaining, whether they joined the union or not, because the system promoted “labor peace.”

However, the union could not use the funds of objecting nonunion members for political purposes that are not directly related to collective bargaining.

The Abood precedent is supported by the teacher’s unions. In the Harris case, The National Education Association and its affiliate, the California Teachers’ Association (which is a party in the case over the California law) filed a friend-of-the-court brief in the Supreme Court saying Abood was rightly decided and remains viable.

Since Abood, there has been a series of Supreme Court cases addressing what may and may not be charged in service fees to nonunion members, and how to account for such amounts.

The home health-care workers’ case comes amid a backdrop of growing challenges for public-employee unions, from declining membership numbers to efforts in several states to roll back collective-bargaining rights. In early June, a California state trial court judge struck down state laws on teacher tenure and dismissal, a ruling that was welcomed in some Democratic circles, adding even more pressure on the unions.

Agency fees collected from non-members are a relatively small fraction of public-employee unions’ budgets. But they address the problem of “free riders” and serve to encourage some workers to join the union at the full dues price.

Two years ago, in Knox v. Service Employees International Union, the Supreme Court ruled 5-4 that public-employee unions had to get nonmembers to opt in to be assessed special one-time fees. The decision was a relatively minor defeat for the unions, but was the latest in a series in which the high court’s conservatives had ruled against them on the rights of dissenting nonmembers.

Writing for the majority in Knox, Justice Alito invited further challenges to the status quo in public-employee unionism when he wrote, “By allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers.”

The national “right to work” movement picked up on the clues and is advancing several cases designed to test the viability of precedents such as Abood.

Besides the Illinois home health-care workers’ case, a group of nonunion teachers in California is challenging that state’s law allowing school districts to enter into agency-shop bargaining arrangements. The plaintiffs involved in that suit, Friedrichs v. California Teachers Association, filed a friend-of-the-court brief in Harris on behalf of the Illinois home-health workers.

Some Drama on the Bench

Delivering a summary of his opinion from the bench on Monday morning, Alito led those in the courtroom on a twisting path between the facts of the Illinois case through his and other conservative justices’ concerns with Abood.

Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends,” Alito said in his opinion. “In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.”

Abood did not anticipate the magnitude of the practical administrative problems that would result from attempting to classify public-sector union expenditures as either chargeable to non-members, such as from collective bargaining, or non-chargeable, such as spending on political causes, Alito said.

“The court has struggled repeatedly with this issue,” he said, noting the various decisions that have attempted to address the intricacies of such issues.

“While we do not overrule or affirm Abood,” Alito said in court, finally tipping his hand about 10 minutes into his summary, “we refuse to extend it to the Illinois” home-health workers.

Justice Kagan did not read her dissent from the bench, but her written words were passionate.

“For some 40 years, Abood has struck a stable balance—consistent with this court’s general framework for assessing public employees’ First Amendment claims—between this employees’ rights and government entities’ interests in managing their workforces,” she wrote. “The majority today misapplies Abood, which properly should control this case. Nothing separates, for purposes of that decision, Illinois’s personal assistants from any other public employees. The balance Abood struck thus should have defeated the petitioners’ demand to invalidate Illinois’s fair-share agreement.”

Assistant Editor Liana Heitin contributed to this blog item.

A version of this news article first appeared in The School Law Blog.