Impact of Supreme Court's ruling on unions could be felt nationwide

by Brian Roewe

NCR environment correspondent

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Advocates for women's rights weren't the only ones dealt a blow Monday by the U.S. Supreme Court; so, too, was an Illinois health care union seeking dues from the nonmembers they represent.

Lost in the Hobby Lobby hyperbole: The nation's highest court in a 5-4 ruling reversed a decision upheld by a federal appeals court that allowed the union to require "fair share" fees from public in-home care workers who had not joined its ranks but whom it represented in collective bargaining.

The eight petitioners who brought the Harris v. Quinn case -- personal assistants from Illinois who provided home care services to Medicaid recipients -- argued their First Amendment rights were violated by a state law requiring union fees from those uninterested in joining.

In the majority opinion, Justice Samuel Alito stated the workers were not "full-fledged public employees" because the state shared employer status with the patients. As a result, he said the First Amendment "prohibits the collection of an agency fee" unless it serves a compelling state interest "that cannot be achieved through means significantly less restrictive of associational freedoms."

"A union's status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked," he wrote.

Though Harris only affects the Illinois home care workers, its impact could reach thousands of workers if extended to other states. According to the Bureau of Labor Statistics, in 2012, more than 875,000 people held the profession, a number expected to grow 48 percent in the next decade as baby boomers age.

"They're important sectors in the society, they're growing sectors. And they're sectors that are largely filled by low-wage women and people of color," Kim Bobo, executive director of Interfaith Worker Justice, told NCR. Though she said she didn't believe the court overtly sought to discriminate against those groups, Bobo viewed its decision as continuing previous labor law practices that exempted minority groups from the fullest protections.

There are more than 20,000 home care workers in Illinois, one of 26 states that require workers under a union contract to either join and pay dues or pay an "agency fee" if they decline to join. In the 24 states that have passed "right-to-work" laws, employees have a choice to become union members.

In 2003, Illinois passed legislation declaring home care workers public employees for purposes of union-represented collective bargaining. The arrangement made the state joint employers of the workers along with their patients, with the state primarily controlling compensation and the patients making decisions about hiring, firing and discipline.

The Supreme Court ruled that the arrangement made the workers partial rather than full public employees and that the state's narrow role limited the scope of issues addressed in collective bargaining. It said arguments of maintaining labor peace, avoiding "free riders" or promoting the workers' welfare were insufficient to overrule First Amendment rights.

"If we accepted Illinois' argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support," Alito wrote.

The National Right to Work Foundation, which brought the case to trial, touted the decision as "a landmark ruling" rendering unconstitutional similar arrangements in other states.

"This scheme, which forced parents and other relatives taking care of persons with disabilities into union political association was a slap in the face of fundamental American principles we hold dear," said its president, Mark Mix.

Though Harris' limited scope omits an impact on unions in the private sector, Fr. Clete Kiley, director of immigration policy with UNITE HERE international union and founder of the Priest-Labor Initiative, said "it is still one more attempt to break the ability of unions to function."

"It sets a precedent that can and no doubt will be exploited later," said Kiley, who suggested it puts the Supreme Court on a right-to-work trajectory.

Home care workers represented by SEIU Healthcare Illinois, the union involved in the case, said in a statement the union's efforts have "improved dramatically" their quality of care and brought better wages, benefits and cost-effectiveness to the home services program.

In the dissenting opinion (begins on p. 44), Justice Elena Kagan made similar observations, attributing to collective bargaining wage increases from $7 to $13 in less than a decade, state-funded health care and better training and safety measures.

"It is not altogether easy to understand why the majority thinks what it thinks: Today's opinion takes the tack of throwing everything against the wall in the hope that something might stick," she wrote.

Kagan criticized the ruling for penalizing the state for giving patients some control of their care and said the majority missed the mark in focusing on the extent of the state's employer status.

"The true issue is whether Illinois has a sufficient stake in, and control over, the petitioners' terms and conditions of employment to implicate Abood's rationales and trigger its application," she wrote.

The court's 1977 Abood v. Detroit Board of Education decision established that public-sector unions could require "fair share" fees from nonmembers but couldn't force them to fund political activity they didn't support. Kagan described that case as "the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation" and said a positive note from Monday's ruling was the court made no effort to reverse that decision.

However, numerous observers read Alito's opinion as encouraging a case brought to the court to challenge Abood, which at different points he referred to as "something of an anomaly" and "questionable on several grounds." A blow to Abood would likely place the decision to pay union dues in each worker's hands, said David Gregory, the Dorothy Day professor of law at St. John's University in New York and executive director of its Center for Labor and Employment Law.

"Without that automatic deduction of union dues, the lifeblood of the union of the day-to-day operating matters would be essentially drained in a matter of months," he told NCR.

While the Harris decision presented a limited blow to labor unions, Gregory said, it adds to a recent string of losses seen in recent months, the court's earlier striking down last week of President Barack Obama's 2012 recess appointments to the National Labor Relations Board and the United Auto Workers' February failure to unionize Tennessee auto workers.

"When you put those three petals next to one another, it's almost like the three witches in 'Macbeth,' " he said.

Going forward, Gregory said unions will have to seriously reflect on the possibility of functioning with limited resources. For Illinois' home care workers, Bobo predicted they won't have the same strong advocacy as other public sectors, such as police and firefighters, but ironically need it most.

"Workers in low-wage sectors are the ones that benefit the absolute most from unions, and thus I think we want to have strong unions that represent those workers," she said.

[Brian Roewe is an NCR staff writer. His email address is Follow him on Twitter: @BrianRoewe.]

A version of this story appeared in the July 18-31, 2014 print issue under the headline: Court deals blow to Illinois union.

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