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Argument preview: Is Abood in trouble?

A 1o a.m. Tuesday, the Supreme Court will return to the often-disputed issue of requiring non-union workers to financially support unions that represent them.  In the case of Harris v. Quinn, arguing for a group of home-care providers resisting unionization will be William L. Messenger of Springfield, Virginia, a lawyer with the National Right to Work Legal Defense Foundation, with thirty minutes of time.  Dividing time on the other side will be Paul M. Smith of the Washington, D.C., office of Jenner & Block, representing the labor unions involved, with twenty minutes of time, and U.S. Solicitor General Donald B. Verrilli, Jr., representing the U.S. government as an amicus supporting the state and the unions, with ten minutes.  The state will not have counsel taking part in the argument.

For more than a half-century, the Supreme Court has upheld requirements that non-union workers pay a part of usual union dues assessed by a labor organization (which has a legal duty to represent them, too).  That began with private-sector workers, and was then extended to public employees, when union organizing is allowed in that sector.   But the extension of that approach to public workers is being challenged directly in a new case the Supreme Court has agreed to decide.

For public employee unions, the most important and enduring precedent in favor of shared financial responsibility for a union’s collective bargaining activity is the Court’s 1977 decision in Abood v. Detroit Board of Education.  A group of home-care providers in Illinois, who do not want to belong to a union or to pay dues, and do not want a union to speak for them, have asked the Court to overrule the Abood decision if it means they must yield in their opposition.

When a union is named as the bargaining agent for a group of workers, it is under a legal duty to represent all the workers, including those who refuse to join.  Under what is called the “agency shop” theory, all workers are not required to join the union, but they are required to pay through their dues a “fair share” of the union’s costs in representing them in bargaining over benefits and working conditions.

The Supreme Court has made clear, though, that the non-union members cannot be required to pay any part of a dues assessment that would cover the union’s political or ideological activity, to which those workers may (and often do) object.  Forcing them to do so, the Court has said, would violate their First Amendment rights.

This system, authorized initially for public employees in the Abood decision, usually has two aspects: a single union acts as the bargaining agent for all the workers in the unit, and the union’s “agency” costs are paid for by union dues on all workers, non-union as well as union members.

The Supreme Court, even while upholding this system repeatedly, has conceded that it involves close questions under the First Amendment, and it has thus carefully monitored the details of each new case that tests the approach.

The new case before the Supreme Court does not arise in the context of a big company with lots of workers where the system supposedly helps maintain labor peace, but in a situation involving a handful of individuals who do all of their work at home — their own home or that of the individuals to whom they provide home care.

The eight individuals in the case provide care for disabled individuals who are eligible for benefits under the federal Medicaid program.  Seven of the eight provide care for a disabled family member.  They are hired by the patients they serve, but are paid by the state under Medicaid.

About ten years ago, the governor of Illinois decided that these “personal assistants” should be allowed to unionize, to have an exclusive representative of their own to speak for them in dealing with state agencies that supervise Medicaid services.  The governor said they should be treated as state employees, for representation purposes.

The home-care workers willing to have a union chose an Illinois-Indiana healthcare affiliate of the Service Employees International Union to be the exclusive representative for those providing rehabilitation services.  Under that arrangement, some 20,000 personal assistants pay about $3.6 million in dues each year to the union.

Later, a new governor approved a representative for the workers providing disabilities services, under a separate branch of the Medicaid program.  Those workers, however, voted against being represented either by the Service Employees’ Local 73 or Council 31 of the American Federation of State County and Municipal Employees.

In 2010, the eight providers now before the Supreme Court filed a class-action lawsuit, contending that it violates their First Amendment rights to be required to support a government-designated spokesman for them in dealings with state officials about the Medicaid program.   That violated their rights of association — here, a right to choose not to be in a union — and their right to speak for themselves in petitioning the government about their working conditions.

They lost in a federal district court and in the U.S. Court of Appeals for the Seventh Circuit, with the appeals court holding that they were employees of both the state and the patients who hired them.  As such, the appeals court said, they are clearly covered by Abood and other Supreme Court precedents approving “agency shop” arrangements, including exclusive representation and a dues-paying obligation for public employees.

The appeals court said it was ruling only on the issue of workers involved in rehabilitation services in Illinois, because only that group had a union representing them.  It would be premature, it said, to rule on the workers involved in disabilities services, since they had vetoed union representation.

Raising both the freedom of association and the freedom to petition the government issues, the eight home-care providers took the case to the Supreme Court.  They also asked the Court to rule that the disabilities program workers should have been allowed to press their challenge in court.

The unions replied, urging the Court not to hear the case, but state officials waived their right to respond.  The Court then asked for the state’s views, and officials argued that the Court should not hear the case.

The Court then turned to the federal government for its views, and, government lawyers, too, urged the Justices to bypass the case. The Solicitor General told the Court that the court of appeals was right in finding these workers to be state employees, at least in part, and that prior Supreme Court precedents allowed both the exclusive representative arrangement and the dues-sharing requirement.

The Court, even so, granted review last October 1.

The case has mushroomed, since the Court granted it, into a major test of the continuing validity of the Abood precedent.  The home-care workers, while repeating in their merits brief most of the same basic points they raised in their initial petition, have turned their merits brief into a fervent plea for overruling that decision outright.

While they suggested that the Court could find that the Abood decision does not control this case, they left little doubt that their primary goal was to scuttle that ruling.   That decision, the merits brief said, turned what had been a narrow ruling for the private sector “into a government interest so compelling that it could trump public employees’ First Amendment right to free association.”  The Court, the filing added, has “never acknowledged that transformation,” so it has not said why it is justified.

If the Abood decision is not cast aside, the home-care assistants suggested, it should at least be understood to mean that compelled union representation in the public sector should be allowed only when it is “the least restrictive means of achieving” the goal of labor peace that the Court had cited.

“This Court,” it summed up, “has not hesitated to overrule decisions offensive to the First Amendment.”

The home-care workers have drawn the support of a collection of conservative legal advocacy groups, libertarian and free-market organizations, groups representing associations of family care providers, and advocates for small business.

The federal government, fully in the case at the merits stage, mounted a full-fledged defense of the Abood decision, contending not only that the ruling was correct, but adding that overruling it “would require the Court not only to discard sixty years of precedent on the specific issue of agency fees, but also to distort and destabilize the established framework for evaluating claims that a condition of public employment violates the First Amendment.”

In short, the government contended, the home-care providers have offered nothing to justify “so radically reshaping First Amendment law.”

Illinois officials, in their merits brief, similarly came fully to the defense of that 1977 ruling, and went on to accuse the home-care providers and their attorneys of seeking “to remove collective bargaining from the options available to the government employer — not only in the present circumstances but in all others — by asking this Court to overrule one of its cases and implicitly suggesting that it overrule others.”

The briefs on the merits of the labor unions involved in the case similarly urge the Court to keep the Abood precedent intact, arguing that it is properly controlling of the outcome in this case.

The amici on that side of the case include fourteen states and Washington, D.C., professors of labor law, other labor unions and the umbrella AFL-CIO, disabilities rights groups and health care organizations, and even a group of “home-care historians.”


The Court has a number of quite obvious ways to decide this case without confronting the ultimate question of whether the time had come to overrule the Abood decision.  The most obvious alternative approach is a finding that these home-care providers work in an intimate, one-on-one environment, so there is no risk of social disruption over labor relations.

That could allow the Court simply to second-guess the state’s rationale for insisting that these workers need a representative to state government, to negotiate over the scope of Medicaid payments.  This approach could be taken on a theory that it was a way to avoid having to address the constitutional questions about freedom of association and freedom to petition the government.

The Court might be comfortable drawing some distinctions between situations where bargaining over benefits is likely to produce civic tension, and those that do not.  Here again, the isolated work of the home-care providers might provide a rationale for a finding that they are not proper subjects for collective bargaining relationships in any event.

A truly narrow decision could be to hold that these workers are really not employees of the state, but of the patients who hire them, so the state would have no authority to try to draw them into unions.

The Court could decide that the imposition of representation on these workers was, indeed, an interference with their rights under the First Amendment, and that would not necessarily require it to question the continuing validity of the Abood precedent for other kinds of public employees.

In the end, the key to the fate of the Abood precedent is whether there is a majority on the Court that has come to believe that the status of public employees is a poor fit for the doctrine of an “agency shop.”  To declare that would be a bold step, indeed, and would upset a great deal of labor law precedent even beyond Abood.  That is a fairly daunting prospect.  The stakes of such a ruling have been energetically debated in the briefs.

And yet, this is a Court that has a very well-established record of great sensitivity to First Amendment claims, and is willing to be bold in defending the rights of free expression.

Recommended Citation: Lyle Denniston, Argument preview: Is Abood in trouble?, SCOTUSblog (Jan. 18, 2014, 12:06 AM),