Harris v. Quinn symposium: A preview of things to come

Terence J. Pell is President of the Center for Individual Rights, a public interest law firm. Together with Jones Day, it is representing ten California teachers in Friedrichs v. California Teachers Association, a case now before the Ninth Circuit that challenges compulsory union dues on First Amendment grounds.

The Supreme Court dealt a blow to public employee unions yesterday in Harris v. Quinn, holding that Illinois could not treat Medicaid-paid home health personal assistants as government employees for purposes of subjecting them to that states compulsory union dues requirements. The decision derails the efforts of unions to replace dwindling private union membership with a new class of quasi-government employees that can be unionized by means of state compulsory union laws.

However, it was not the fatal blow to unions some had been expecting. The Court did not overrule Abood v. Detroit Board of Education, the main case in which the Court ruled that states may require public employees to pay union dues as a condition of employment. So for the time being, millions of public teachers, firefighters, and police continue to be subject to compulsory dues in the twenty-six states that have such laws notwithstanding that they may disagree with the positions that their unions take.

Justice Alito, writing for a five-member majority, distinguished the personal assistants covered by the Illinois law from true government employees and held that Abood did not apply. Under the Illinois statute, the personal assistants answer to their customers — mostly disabled or elderly individuals and often a close relative — who have the final say in their hiring and firing, the hours they work, and the duties they perform. In essence, Illinois pays individuals to work under the direction of third parties, who set the terms of employment rather than the state.

As a result, there is little the unions can do to represent home health-care workers. There is thus little to support the rationale for compulsory dues, namely to compensate unions for the statutory obligation to represent the interests of all employees, not just their own members. Because the union doesnt really represent the employment interests of any home health-care workers, it obviously cant favor the interests of its own members.

Though he held that Abood doesnt cover quasi-government employees, Justice Alito took pains to explain that Abood itself hangs by a thread. He went on to develop the line of argument he first set forth in a 2012 case, Knox v. SEIU, in which he suggested that Abood was an anomaly that no longer survives First Amendment scrutiny. According to Justice Alito, the free speech and association rights of individual employees trump the states interest in preventing non-dues paying members from free riding on their unions efforts.

The familiar five-to-four split reappeared in this case. Joining in an opinion authored by Justice Kagan, the liberals took the position that Abood clearly applies to the quasi-government employees at issue in Harris; Justice Kagan accused the majority of throwing everything against the wall in the hopes something might stick in a vain effort to find some real distinction between Abood and the facts of the Illinois case.

According to Justice Kagan, the fact that the union doesnt bargain over all the conditions of employment doesnt undermine the states interest in designating a single collective bargaining agent to represent them over a few interests. And with respect to those, the state could decide to negotiate with a single agent supported with a system of compulsory dues. As to the present vitality of Abood, Justice Kagan dismissed as dicta Justice Alitos threatening words about its continuing relevance.

Justice Kagans opinion seemed to go out of its way to rely on considerations that have proven appealing to Justice Scalia in other contexts. For example, her opinion emphasized the fact that Abood is a deeply entrenched forty-year old precedent that supports settled expectations built into not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Not only that, she described the states interest as the reasonable need to maintain an efficient system of labor negotiation even if that requires trimming some First Amendment rights that its employees might otherwise enjoy as citizens. Justice Scalia has used similar rationales to favor the governments prerogatives in managing its employees in other cases and he might have been expected to do so again in the case of compulsory union dues.

The fact that Justice Scalia did not vote with the liberal block suggests some important distinctions between public employee unions nearly forty years ago, when Abood was decided, and public employee unions of today. It no longer can be taken for granted that unions like the SEIU, the NEA, or the California Teachers Association represent the interests of all employees. It isnt just that the unions have become more political as entities; it is now inescapable that ordinary labor issues like salary and tenure are themselves political issues, especially when the money to fund those benefits ends up thwarting other public spending and the policies themselves (like tenure) are part of hotly contested policy debates. As a result, it is no longer the case that unions can represent the interests of all employees as Abood imagines. Inevitably, the unions end up favoring the point of view of a core of highly political union members at the expense of everyone else (who may also be quite political, just along different lines).

While Justice Scalia sided with the majority in Harris, it remains open to speculate how he might vote if the case involved not just the peculiarities of quasi-government employees but public employees generally. Such a case may be on its way to the Court. In Friedrichs v. CTA, Michael Carvin of Jones Day and the Center for Individual Rights (my employer) are representing a group of California teachers who are challenging compulsory union dues on straight First Amendment grounds. That is, they concede that Abood applies and they will ask the Court to overrule it. Now before the Ninth Circuit, Friedrichs could be before the Court next Term or possibly the Term after.

While Friedrichs may be ambitious in asking the Court to overrule Abood, Justice Alitos majority opinion in Harris offers a way to preserve the states interest in an efficient system of collective bargaining using a single, designated bargaining agent while at the same time protecting the free association rights of individual employees to decide whether to pay dues to such a union. Justice Alito suggests that Abood rests on an unsupported empirical assumption, namely that the principle of exclusive representation requires compulsory dues. But that may not be the case. If a minority of employees decides not to pay dues, it doesnt follow that an otherwise wealthy union wouldnt still be able to function effectively as a designated collective bargaining agent.

Though Justice Kagan suggests that as much as half to two-thirds of the public workforce could decide not to pay dues were Abood to be struck down, its not clear that this is so. We already know that, when given the choice not to pay the political portion of dues, only a small number of union members opt out. So it might just be the case that a majority of public employees strongly supports their union and would continue to support it if dues became completely optional. If so, union membership might drop, but not significantly so, and certainly not enough to call into question the unions ability to function as a collective bargaining agent.

More fundamentally, though, if union membership did drop precipitously, it would suggest that the First Amendment difficulty with compulsory dues is not a marginal problem affecting a few dissident members, but a fundamental problem reflecting the political mission of present-day public employee unions. In that case, it would much less easy to dismiss the right of free association and speech of public employees in favor of the states interest in a smoothly running system of collective bargaining. Either way, then, the Court would have a basis for ending compulsory union dues under the rationale articulated by Justice Alito in yesterdays decision.