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Unions circling wagons on court case


It was a “win-win-win” situation when home-care providers in Illinois unionized, says the lawyer who will represent the state and the public-employee union in Supreme Court arguments this week.

Pay and benefits increased for the employees, the state negotiated with a unified and more stable workforce, and clients found that workers were more willing to stay in the demanding jobs, Washington lawyer Paul Smith said.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

Actually, says Patrick Semmens of the National Right to Work Committee, the whole thing was simply a “political payback” to the powerful public-employee unions. Former governor Rod Blagojevich (D) declared that the workers, who are hired by the individuals who need the care, were state employees in order to deliver them to the Service Employees International Union (SEIU), which has become a major force in Democratic politics.

Politics are “intertwined” with legal issues in the battle before the high court, Semmens said.

Harris v. Quinn has grown from an innocuous-sounding lawsuit over how to classify employees into a frontal attack on an issue crucial to labor — whether public employees who opt not to be in a union still must pay “fair share” fees to support the organization’s collective-bargaining work.

Supreme Court precedent fully supports such a notion. But the current court’s conservative members practically invited a challenge in a related labor decision two terms ago.

Now, unions have circled the wagons. And the Obama administration, which advised the court not to take the Illinois case, has warned that the challengers offer no reasoning that “justifies so radically reshaping First Amendment law.”

It has long been acknowledged that compulsory union fees conflict with the First Amendment’s protection against forced association and speech.

But since the 1950s, the Supreme Court has said that laws requiring nonunion employees to pay some dues are justified to support government’s interest in “industrial peace and stabilized labor-management” relations and ensure that those who benefit from collective bargaining bear some of the cost.

The court since has said that mandatory fees cannot be used to fund unions’ political activities, such as supporting candidates. And in 1977, in a case called Abood v. Detroit Board of Education, the court used those decisions to include public-employee unions.

But in a 2012 decision written by Justice Samuel A. Alito Jr., the court’s five most consistently conservative justices questioned whether the previous rulings “have given adequate recognition to the critical First Amendment rights at stake.”

They said that “measures burdening the freedom of speech or association must serve a compelling interest and must not be significantly broader than necessary to serve that interest.”

Long before that, though, the fight was on in Illinois. The state operated two Medicaid-waiver programs — rehabilitation and disabilities — that subsidized the costs of providing in-home assistants to disabled individuals and others who might otherwise be institutionalized. Other states have similar programs.

The state sets wages and other conditions of employment, but the assistants are chosen directly by the patients.

When some of the rehabilitation-program assistants tried to unionize in the 1980s, the Illinois Labor Relations Board said that was not possible, because they were not solely employed by the state.

But Blagojevich and the legislature extended collective-bargaining rights to the workers in 2003, and the SEIU became their representative. Gov. Pat Quinn (D) extended similar rights to the disabilities-program workers in 2009, but they voted against union representation.

Workers in both programs sued because they did not want to be compelled to pay the fair-share union dues, and lost. The U.S. Court of Appeals for the 7th Circuit said that the rehabilitation workers were rightly considered state employees and thus could be charged fees under Abood. The disabilities workers’ case was dismissed because they were not paying dues.

The Supreme Court apparently struggled over whether to take the workers’ appeal, which was first filed in November 2011. But after the court finally decided to take the case in October, the National Right to Work Committee raised the stakes by asking the court to overrule Abood.

The 1977 decision was a “radical expansion of the government’s ability to compel its employees to associate with a union,” the committee’s William Messenger writes in his brief. The ruling did not take into account government’s role both as employer and sovereign, he said.

“The court should no longer permit government to compel association for the inherently expressive purpose of petitioning the government,” the committee’s brief says.

The state and union counter that the court’s precedents rely on a proper deference to government in collective-bargaining agreements.

When the state requires unions to negotiate on behalf of all covered employees, there are no constitutional problems with it requiring all employees to contribute to the cost of that collective bargaining, they say, otherwise, there would be no incentive for anyone to pay union fees.

The case is one of several this term that ask the justices to explicitly overrule precedent, a step they traditionally are reluctant to take. The government and unions clearly hope such reluctance will slow a majority clearly concerned about the union fees and have the case decided more narrowly on the circumstances particular to Illinois.

“For a quarter-century, the court has allowed states to make fundamental choices about managing employment with public employees,” Smith said. “We hope they will continue to preserve the precedent and procedure that gives states the ability to make these choices.”

For previous High Court columns, go to

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