If you have not been following the cases before the Supreme Court in this session, or if you have been but have simply lost track of this important labor case in the midst of the other cases that have attracted much more intense media coverage, the following is the lead to an article disseminated by The Nation over this past weekend [http://www.thenation.com/article/179033/why-harris-v-quinn-has-labor-very-very-nervous] :
“Sometime soon, certainly by the late-June conclusion of its present term, the Supreme Court will tell us its decision in Harris v. Quinn , arguably the most important labor law case the Court has considered in decades. Harris has already generated a great deal of attention and worry in labor circles, and nearly as much enthusiasm and celebration in pro-business ones—reflected in the extraordinary number of friend-of-the-court briefs filed by advocates on both sides. The case threatens the existence of the ‘agency shop,’ a bedrock institution in American labor relations—one relied on in the most successful recent union organizing, and that is decisive to the health of public sector unions. Here’s what Harris is about.
“In American labor law, a union wins the right to be the exclusive collective bargaining representative for workers in a particular unit by demonstrating its support by a majority of the workers in the unit. But the law also imposes a duty with this right. The union must represent all workers, union members and nonunion employees alike, when it negotiates and administers collective bargaining agreements. Thus it is theoretically possible for nonunion employees to capture the benefits of collective bargaining won by their union colleagues (often at considerable expense) but pay nothing for it. Unions typically seek to limit this free-rider problem by negotiating clauses requiring all unit employees to pay their ‘fair share’ of the union’s costs —for union members, this is done through dues; for nonunion employees, by some calculated ‘agency fee.’ Along with capturing needed resources, these clauses send a cultural message: if not of solidarity then at least distaste for free-riders.
“The Supreme Court has long recognized the legitimacy of such fair-share/agency-shop agreements, in the private as well as the public sector, within limits. The limits are that unions may compel nonunion employee contributions only for the costs of negotiating and administering collective bargaining agreements. The costs of all other union activity—new organizing, lobbying, public education, elections, etc.—are deemed ‘nonchargeable,’ meaning that they are paid by nonunion employees at their discretion.
“Which brings us to the plaintiffs in Harris v. Quinn— a group of nonunion Illinois homecare workers employed by the state and represented by the National Right to Work Committee (NRTWC) Legal Defense Foundation, which argues that all public sector agency shops should be declared unconstitutional on the grounds that they violate the First Amendment’s prohibition against state compulsion of political speech. All public sector bargaining is intrinsically political, the NRTWC lawyers claim, since it affects state budgets. And if public sector bargaining is a kind of political speech, no state can order anyone to pay for it. . . .”
It is important to read the analysis of the Harris v. Quinn decision that has been provided by Aaron Nisenson, AAUP’s senior counsel, and that is provided below, because already there is misinformation about the decision that will certainly be exploited and exacerbated by “right to work” advocates. For instance, the following two paragraphs from the Associated Press story on the decision [http://news.yahoo.com/court-public-union-cant-nonmembers-pay-fees-140845713–finance.html] are technically accurate but certainly misleading if a reader were to stop at the end of the first of the two paragraphs, which might seem to suggest that the decision represents a broader setback for public-sector unions, not just those representing this type of in-home health care workers:
“The ruling is a setback for labor unions that have bolstered their ranks—and bank accounts—in Illinois and other states by signing up hundreds of thousands of in-home care workers. It could lead to an exodus of members who will have little incentive to pay dues if nonmembers don’t have to share the burden of union costs.
“But the ruling was limited to this particular segment of workers—not private sector unions—and it stopped short of overturning decades of practice that has generally allowed public sector unions to pass through their representation costs to nonmembers.”
AAUP Legal Update—Harris v. Quinn, Case No. 11-681 (U.S. June 30, 2014)
The Supreme Court declines requests to radically alter agency fee law, but refuses to allow the charging of agency fees to certain “partial-public” employees.
AAUP Senior Counsel
The Supreme Court today issued its much awaited decision in the Harris case in which the plaintiffs requested that the Court rule unconstitutional the charging of agency fees in the public sector. Fortunately, the Court rejected these attempts to alter the agency fee jurisprudence as it has existed in the public sector for over 35 years since the Court issued its seminal decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Here, in a 5 to 4 opinion issued by Justice Alito, the Court questioned the foundation of Abood, but specifically stated that it was unnecessary for the Court to reach the argument that Abood should be overruled. Instead, the Court ruled that agency fees could not be imposed on certain “partial-public” employees, a category that likely has little applicability to faculty members at public institutions. Accordingly, the general agency fee jurisprudence as it applies to most AAUP Chapters and members should continue undisturbed.
In its decision the Court focused on the unique employment status of the individuals in question, who were personal assistants providing homecare services to Medicaid recipients. While the state compensated the individuals, the majority noted that the employer was normally considered the person receiving the care and that the government had little role in the individuals’ employment. It also noted that the state classified the individuals as state employees “solely for the purpose” of being covered by the state labor law but did not consider them state employees “for any other purpose.” Accordingly, the Court held that these individuals were not “full-fledged public employees” but were instead “partial-public or quasi-public employees.” The majority then held that the authorization to charge agency fees under Abood did not extend to such employees and the imposition of agency fees could not be justified under other First Amendment principles. However, as the dissent explained, “[s]ave for an unfortunate hiving off of ostensibly ‘partial-public’ employees, Abood remains the law.” Because the ruling applied only to “partial-public employees,” it is unlikely to have a significant impact on agency fee jurisprudence applicable to faculty members at public institutions.
However, there are some disturbing undercurrents in the decision. First, the five justice majority clearly questions the rationale supportingAbood, and it did not reaffirm Abood and Justice Alito has all but invited further challenges to Abood in general. Second, the Court created a new category of “partial-public employees.” This category, while not well defined, would seem to have limited application to current faculty members, whether on full-time, part-time or on contingent appointments. However, there could be attempts to create such “partial-public” employees as a result of this decision. Third, the Court raised the issue of the scope of bargaining as supporting agency fee under Abood. This could lead to some confusion regarding Abood in situations where bargaining rights are limited. Fourth, the case illustrates the danger in creating special classes of “employees,” whether the classes are created in the interests of unions or by employers seeking to avoid the application of certain laws. Finally, and perhaps most importantly, when combined with recent legislative changes in Michigan and other states, this case illustrates the fragility of agency fee provisions and the need for AAUP Chapters to continue to seek to expand the percentage of active and engaged chapter members.