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Northwest OH Legal Blog

Tuesday, February 18, 2014

Supreme Court Hears Challenge to Public Sector Unions

On January 12, the Supreme Court heard a case which could have major ramifications for Public Sector Unions.  The Case, Harris v. Quinn, involves home-care workers in Illinois that, because they receive funds from Medicaid to provide services to their patients or family members, were declared public workers.  As public workers, Service Employees International Union (SEIU) organized these workers into a union.  A vote was taken, and the majority of workers voted to have SEIU be their exclusive representative.  Eight bargaining unit members opposed to joining SEIU or helping to pay for the cost of representation filed suit.  At both the district and appeals court, the courts found in favor of SEIU and the State.  Petition was then made to the Supreme Court who agreed to hear the case.

Much like the private sector, when a public sector union is formed the union must represent all employees in the bargaining unit in contract negotiations, grievance hearings, and any other representational matters regardless of their union membership.  To offset the cost of representing non-union bargaining unit members, unions may charge a “fair share” fee that is the portion of union dues expended on representation that does not include the amount a union charges members to cover the union’s political or ideological activity.  Although, anti-union activist have attacked fair share fees before, the Supreme Court upheld the right of public sector unions to collect fair share fees in its 1977 decision Abood v. Detroit Board of Education. Subsequently, a whole body of case law has evolved affirming the right of public sector unions to collect fair share fees relying on Abood.  Now this right is being challenged again with a more conservative court to decide its outcome.

Although Harris v. Quinn was initially brought to question whether the health-care workers were, in fact, public sector workers, the case has since evolved into a ploy to overturn Abood on first amendment grounds.  Led by the conservative National Right to Work Legal Foundation, the plaintiffs have argued that the forced payment of fair share fees infringes on their right to speak and free association.

Although the Court has, in the past, reaffirmed the decision in Abood, two years ago Justice Alito wrote an opinion joined by the other four conservative justices that questioned whether the collection of fair share fees was constitutional.  During oral arguments for Harris, Alito once again questioned whether fair share fees forced public sector members to support public policy that they find objectionable.  Alito’s concerns were further echoed by Justice Kennedy.

With Alito, Kennedy, and presumably Thomas, appearing ready to strike down Abood, the outcome of the case could hinge on Chief Justice Roberts, who focused his questioning on the question of whether or not these workers are, in fact, public sector workers, and Justice Scalia who seemed doubtful that the public employee union activity was more about shaping public policy than about the traditional role of improving the working conditions of bargaining unit members.

It the Supreme Court would rule to overrule Abood, the effect could be widespread, turning all public sector employees in the nation into so called “right to work” employees.  This would exacerbate the free rider problem allowing bargaining unit members to enjoy all the rights and benefits of representation without having to share in any of the costs.  Although the case may be decided on narrower grounds (a path that Chief Justice Roberts seemed to favor) the potential exists for the Supreme Court to throw away almost 30 years of precedent and deal a major blow to unions representing public sector unions.  A decision on the case is expected in late May or June.  Allotta | Farley will be following this closely and will update you once a decision is handed down.


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