http://www.nytimes.com/2014/07/01/business/supreme-court-ruling-on-public-workers-and-union-fees.html

JUNE 30, 2014

Supreme Court Ruling on Union Fees Is a Limited Blow to Labor

By STEVEN GREENHOUSE

The Supreme Court dealt a limited blow to organized labor on Monday by ruling that some government employees did not have to pay any fees to the unions representing them. But the court declined to strike down a decades-old precedent that required many public sector workers to pay union fees. Writing for the 5-to-4 majority, [1] Justice Samuel A. Alito Jr. concluded that there was a category of government employees -- a partial public employee -- who can opt out of joining a union and not be required to contribute union fees.

Justice Alito wrote that home-care aides who typically work for an ill or disabled person, with Medicaid paying their wages, should be classified as partial public employees and should not be treated the same way as public schoolteachers or police officers who work directly for the government.

The court's decision, on behalf of the five most conservative justices, was a partial, but not total win, for labor's critics. And while labor sustained a defeat in this ruling, it did not amount to a crippling loss that unions had feared. If the court had overturned the precedent requiring many government workers to pay union fees, it could have greatly reduced the membership and treasuries of public-employee unions. Several legal experts said Justice Alito evidently had tried unsuccessfully to obtain the needed votes for a broader decision to overturn that precedent. Justice Alito wrote that unions played such a limited role for "partial public employees" like home-care aides that these aides should not be required to pay union fees. Indeed, he wrote that such a requirement would violate their First Amendment rights. He noted that states often set wages for these workers and that unions often did not bargain for them.

The case, Harris v. Quinn, was brought by eight Illinois workers who provided home care to Medicaid recipients. Several plaintiffs were mothers who, helped by Medicaid, were personal assistants to their disabled children and opposed joining the union and paying union fees.

The plaintiffs asked the court to overrule a 1977 decision that declared that government employees could be required to pay fees to unions for representing them and administering their contracts even if they disagreed with the unions' positions. The majority declined to overrule that foundational decision, Abood v. Detroit Board of Education, [2] although Justice Alito voiced strong discomfort with it.

Objecting to the so-called agency fees that the Abood ruling said teachers must pay, Justice Alito wrote Monday, "Agency-fee provisions unquestionably impose a heavy burden on the First Amendment interests of objecting employees."

Illinois and more than 20 other states require government employees, whether or not they opt to join the union at their workplace, to pay "fair share" fees to finance the union's activities, like collective bargaining, to prevent freeloading and ensure "labor peace." But the court in Abood held that workers could not be required to help pay for activities that were purely political, like campaigning for particular candidates.

The National Right to Work Legal Defense Foundation represented the plaintiffs and argued that Illinois was violating the First Amendment by requiring that home-care aides pay compulsory fees to unions even when they disagreed with the unions' positions. The foundation argued that most of what public-sector unions did was inherently political, partly because they rely on the government to pay their members' wages and benefits -- and they often lobby the government to increase compensation.

But the Service Employees International Union, which represents the Illinois home-care aides, and the Obama administration urged the court to uphold the legality of "fair-share fees."

In Monday's decision, Harris v. Quinn, No. 11-681, Justice Alito noted that the S.E.I.U. received about $3.6 million in fees per year from home-care assistants in Illinois. The ruling reversed a decision by the United States Court of Appeals for the Seventh Circuit.

Justice Alito rebuffed the argument by the State of Illinois that the Abood decision should be controlling in this case, saying it should apply only in cases involving full-fledged public employees like teachers or firefighters.

The majority opinion showed uneasiness with decades of laws and judicial rulings that required government workers who choose not to join unions to nonetheless pay union fees on the ground that unions' efforts on collective bargaining and grievances benefit members and nonmembers alike.

"If we accepted Illinois' argument," Justice Alito wrote, "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."

During oral arguments in January, [3] Justice Elena Kagan warned that a broad ruling that overturned Abood "would radically restructure the way workplaces across this country are run." But the scope of Monday's ruling is limited because it applies only to "partial public employees" like home-care aides and perhaps government-financed child-care workers who provide care at their homes.

In the dissenting opinion, Justice Kagan attacked the majority's concept of partial public employees, saying that Illinois has sole authority over much of the home-care aides' terms and conditions of employment.

"Today's opinion takes the tack of throwing everything against the wall in the hope that something might stick," she wrote. "A vain hope, as it turns out."

Anticipating a future attack on Abood, Justice Kagan devoted much of her dissent to defending Abood and its upholding government efforts to prevent free-riding. Saying that the majority underestimated that problem, she wrote "union supporters (no less than union detractors) have an economic incentive to free ride."

Justice Alito noted that the union had argued that the home-care aides should pay union fees under Supreme Court precedents holding that it was not a First Amendment violation to require lawyers to pay bar association fees and public university students to pay student activities fees. Justice Alito wrote that Monday's decision was "entirely consistent" with those rulings.

Senator Lamar Alexander, the ranking Republican on the Senate Health, Education, Labor and Pensions Committee, said, "Today's decision is good news for our nation's families, who are now protected from a disturbing union scheme to turn private homes into unionized workplaces."

Christine Owens, executive director of the National Employment Law Project, said the court showed indifference to how labor-management relations works. "The court elevated the interests of the minority objecting to paying their fair share over those of the majority who had democratically elected a union," she said.

[1] http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf

[2] http://www.law.cornell.edu/supremecourt/text/431/209

[3] http://www.nytimes.com/2014/01/22/us/justices-appear-divided-on-challenge-to-public-unions.html