Not a “Killshot” to Public-Employee Unions, but Not a Complete Reaffirmation of the Status Quo Either

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 [] :

“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 [–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 UpdateHarris 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.

Aaron Nisenson

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.



7 thoughts on “Not a “Killshot” to Public-Employee Unions, but Not a Complete Reaffirmation of the Status Quo Either

  1. While agency fee was theoretically designed to justly compensate unions for the costs of fair representation, its existence as a mandatory payment has indeed caused many, if not most, public unions to engage in “bossism” and to spend less time on communicating with and responding to the bargaining unit members to ensure fair representation.

    Why does it take a crisis of Supreme Court proportions for unions to spend more time on membership recruitment? Public unions have been complacent in having significant percentages of their bargaining units not enroll formally as members, alienated and discontent — and that says it all in a nutshell.

    As for the definition of “full-fledged public employees,” one can only wonder what that can mean in states where the support from state funds is dramatically less than 51 percent of the universities’ budget. Further, in light of this ruling and the self-directed nature of much of faculty labor, how does one categorize the growing majority of science and social science faculty whose salaries are subsidized in large part by “soft monies,” often from corporate sources with “strings attached”?

    Indeed public unions would do well to actively dialogue with the members of their bargaining units to ensure their formal enrollment and — heaven help us — respond honestly to “the duty of fair representation.”

    • I cannot, of course, speak for all AAUP chapters, but I think–or perhaps I hope–that many, if not most, are like most, if not all, of the chapters in my state, Ohio.

      For instance, the bargaining unit for tenured and tenure-track faculty at my own university has consistently had between 80% and 85% membership, with only a half-dozen or so faculty out of 420-450 in that bargaining unit choosing each year to file for “objector” status.

      Although I do think that we can do a better job keeping our members engaged–and we have been very focused on efforts to do just that–I do think that most of our members feel that we are making an honest effort to give them fair and effective representation, regardless of whether they are members, fee-payers, or objectors. In fact, this spring, we gave an objector in our non-tenure-eligible bargaining unit such vigorous support that she wrote to thank us at some length for all of our efforts on her behalf.

      Given that we are all volunteers and that our members are paying just .7% of their salaries in dues, I think that they recognize that they are getting more than their money’s worth from being unionized. So, at least for the last half-dozen years, our challenges in Ohio have very clearly come more from the outside than from the inside. Indeed, very few of our small number of objectors, even, have been vocal advocates of “right to work.”

  2. Of course, the elephant in the room is the official organizing partnership between AAUP and AFT. AFT unions generally charge more than 0.7% of salary for membership/agency fees. They usually have field staff from K-12 or SEIU backgrounds and therefore with little experience with higher education academic freedom. AAUP sells its reputation for AFT organizing dollars and day-to-day union maintenance — and the result is not always recognizable from a Dewey-Lovejoy perspective.

    BTW Twenty percent of faculty choosing not to become members is a significant indictment of any public union with mandatory agency fee. In fact, such a figure is far more indicative of alienation than a smaller number of vocal objectors. While objectors are often angry and disappointed, the rank-and-file non-member often has no faith whatsoever that the process merits ratification.

    • We are probably not disagreeing over a great deal because I agree completely with you that union members need to have a visceral sense of the value of their unions and a commitment to their preservation. And we can clearly do a better job at creating that sense of personal engagement and personal investment among our members.

      That said, I would like to respond to several of your points.

      In the 1950s or 1960s when organized labor was in its heyday, or perhaps in a state that is currently much more progressive and pro-labor, it may be that 80%-85% membership in a union chapter with agency fee might not be anything to write home about.

      But we are in a “purple” state. Worse, for the last decade, there has been intense and sustained “right to work” rhetoric both here and in neighboring states, with both Indiana and Michigan very contentiously becoming “right to work” states. Furthermore, here as elsewhere, there has also been a lot of effort by administrations to wear away even tenured faculty’s sense that they have a right to shared governance and academic freedom. In particular, the great increase in contingent employment has had an impact on even tenured faculty’s sense of empowerment. So, in such a context, I think that 80%-85% membership is a fairly strong endorsement of our efforts and our successes.

      Three years ago, our chapters’ monetary and on-the-ground contributions to the effort to defeat Senate Bill 5 led to our conference’s being given a seat not only on the executive committee of We Are Ohio but also on the state Labor Table. That bill was repealed by a 63%-37% referendum vote, which was considered a landslide. Even if 15%-20% of our members voted not to repeal Senate Bill 5, I can tell you from much firsthand experience that the effort to repeal it energized large numbers of our members–including some lifetime Republicans, who decided that their collective-bargaining rights were more important to them than party ideology.

      Lastly, although the joint organizing efforts with AFT have led to CB units differently configured than CB chapters solely organized by AAUP, those organizing efforts were clearly beyond our capacity to undertake ourselves. Moreover, they have largely been successful–that is, by significant majorities, the faculty at those institutions have seen unionization under the joint auspices of AAUP and AFT as preferable to having no union representation. And those organizing efforts have actually provided some of the experience and are generating some of the resources for AAUP to start to expand to some extent the organizing efforts that we are undertaking independently–and with a greater chance of being successful.

      So, would 90%-100% membership in our bargaining units be ideal? Certainly yes. Would sole organizing efforts by AAUP be ideal? Again, yes.

      But this is far from an ideal world–especially for academic labor. So we are trying to make well-considered decisions that best serve our members, even though there often are not a lot of easy choices available.

      • Indeed, likely the only reason that the joint AAUP-AFT organizing effort has enjoyed some success is because of the proffered promise of the AAUP’s commitment to academic freedom. Time will tell whether AFT manages to submerge those priorities in its joint unions as thoroughly as it has in the “pure” AFT (and joint NEA) unions. By handing over so much control in exchange for thirty pieces of silver, AAUP leaders have entered into an unholy alliance.

        What you have described about the willingness of AAUP to strike this devil’s bargain in exchange for affiliate monies — given what AAUP knows about the poor track record of AFT (e.g. SUNY’s sad state of academic freedom and UUP’s unwillingness to defend it) — is put into perspective by the contemporaneous decline of the AAUP advocacy chapter membership. They above all others know that AAUP has been a toothless tiger for some decades now.

        The situation at your campus may indicate that an eighty percent enrollment is excellent — but the pressing context of the wolf at the door in surrounding states played a role. As did, admittedly, Ohio’s historically strong AAUP state conference. However, such percentages are common in large public unions in blue states as well where they enjoy legislatively-mandated agency fee garnishing of paychecks at the public’s expense.

        In the end, it all comes down to the need for public unions to truly walk the walk and not just talk the talk. With respect to AAUP a faculty member in most states is only assured of AAUP assistance if s/he has a friend among the AAUP leadership or if the campus administration of a member of the leadership transgresses the principles (e.g. University of Virginia, University of Illinois, etc.). Prof. Grabowski of SUNY had no such confluence of luck — and AAUP leaders wanted those affiliate dollars more than they cared about academic freedom even in a very public debate on this very issue (cf. Thus, AAUP, in its pursuit of AFT dollars, helped to embolden both union bossism and the erosion of academic freedom in SUNY.

        The AAUP of the approaching centennial is a shadow of its earlier self — Dewey and Lovejoy are turning in their graves. Mandatory agency fee has enabled the rise of bossism in public unions and in AAUP and has enabled the growing neglect of the democratic dialectic of reason and persuasion which should be determining union policies on our campuses in the nation.

        The sad state of unionism in this country is in no small part a direct result of the abandonment of democracy by union leaders who thus and thereby alienated large segments of the workforce. As in most public movements of enduring value, simple fund-raising is never the single deciding factor. Therefore the AAUP leadership’s pandering for dollars from other union bosses at the expense of AAUP principles has not solved any of the organization’s long-range problems and has led instead to an ever more deepening cynicism among the nation’s professoriate.

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