By Bill Lurye
General Counsel, American Federation of State, County and Municipal Employees

Bill Lurye

Bill Lurye

On Monday, the Supreme Court issued its opinion in Harris v. Quinn, a case that was largely ignored by court watchers and much of the media until very recently.  At bottom, the case presented a very straightforward question: could the State of Illinois enter into a collective bargaining agreement with SEIU Healthcare Illinois and Indiana that required homecare workers who were not members of SEIU HII to pay to the union their fair share of the union’s cost of representing it?  In the lower courts, the National Right to Work Legal Defense Foundation (NRTW), which brought the lawsuit, sought to block home care and other independent providers, like child care providers, from forming unions and having collective bargaining agreements that include fair share fees.

But with Justice Alito at the helm, the Supreme Court entertained new arguments from NRTW that placed before the Court the very existence of public sector unions.  NRTW aggressively challenged the constitutional right of all public service employees to form unions to be their exclusive bargaining representative in the workplace; to have their union bargain over matters of concern to them, like wages, benefits, and working conditions; and to have collective bargaining agreements that permit the payment of fair share fees by nonmembers for the services the union provided to them and other bargaining unit members, seeking to overturn Abood v. Detroit Board of Education

Very little time was spent at argument discussing the central issue in the lower courts, namely, who employed these home care workers?  In the lower courts, NRTW argued that the only employer of the home care workers was the customer who received their services.  The lower courts rejected this argument, applying an “economic reality” test to find that, because the state controls all the economic benefits paid to providers, the state is the real employer, or, at the very least, a joint employer of the providers.

But in the Supreme Court’s decision, the home care workers’ employment status ultimately became Justice Alito’s focus, after he made clear his utter disdain for Abood. Indeed, Alito made an unsparing and undeserved attack on a case that has been reaffirmed four times, as recently as 2009 in Locke v. Karass.  There, the Court unanimously called the Abood rule “a general First Amendment principle.”  However, Justice Alito’s 39-page opinion in Harris v. Quinn is notable for its implicit criticisms of the Justices who decided Abood and the cases underlying it.  Justice Alito criticized what he called the “questionable foundations of Abood” and cited those foundations as one of the reasons for refusing to “extend” the rule from Abood to the home care workers in Harris.  He called the constitutional analysis in one underlying case (Railway Employees v. Hanson) “thin” and he relied heavily on dissents from two cases in the 1950s and 1960s (Lathrop v. Donohue and Machinist v. Street) to advance his decision that Abood should be limited to only “full-fledged state employees,” and “could not be extended to those who are not.”  Home care workers, according to Justice Alito, are “partial-public” or “quasi-public” employees, to whom Abood could not apply without “causing problems.”  Specifically, he said the “problem” would be “just where to draw the line” as to who might be a public employee.  As a result, according to Justice Alito, Abood does not apply to home care workers.  The Supreme Court majority therefore concluded that under the circumstances of this case, requiring the home care workers to pay “fair share fees” for the benefit of union representation violated the First Amendment’s ban on government-compelled speech and association.

Justice Kagan had clear responses to Justice Alito in her dissent. These “quasi-public” employees, which Justice Kagan correctly noted is “a term of the [majority’s] own devising,” are easily classified as “joint employees” (a term known in employment law and not an uncommon status) of both the State and the home patient.  Justice Kagan pointed out that the State, following negotiations with the union, established the most important terms of their employment—including, wages, benefits, and basic qualifications—and plays at least some role in all aspects of the care providers’ employment.  And, while a customer can manage his own relationship with the home care worker, “Illinois has sole authority over every workforce-wide term and condition of the care providers’ employment,” even if some of those aspects are controlled primarily by the customer.  Justice Kagan also explained that while home care workers have, in the last 10 years, nearly doubled their wages, obtained state-funded health insurance, and benefitted from better training and workplace safety measures, Illinois has, in its view, received a more stable workforce providing higher quality care, thereby avoiding the higher costs associated with institutionalization.

As for Justice Alito’s concern regarding “drawing the line,” Justice Kagan pointed out that Abood itself contemplated that lines would have to be drawn.  She noted that this is the very work of the Supreme Court, stating “[i]f the kind of hand-wringing about blurry lines that the majority offers were enough to justify breaking with precedent, we might have to discard whole volumes of the U. S. Reports.”

Ultimately, Harris answered through judicial activism a question which has traditionally been left to each state to decide for itself: whether or not to be a “right to work” state in the public sector.  But the Court’s answer, at least for now, is that Abood does apply to “full-fledged” public employees.  That question will certainly continue to be pressed by anti-worker activists, who will no doubt see Alito’s decision as yet another invitation to attack Abood, even though, as Justice Kagan stated, “the [Harris] majority declined that radical request. The Court did not, as the petitioners wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought necessary and appropriate to make collective bargaining work.”

Justice Alito’s critique of Abood does not have the force of law—in many ways Alito simply repeats the arguments he first made in 2012 in Knox v. Service Employees. So Abood remains the law of the land. But the impact of this decision on the workers should not be overlooked.  The decision will make it harder for those who may not look like traditional state employees to engage in meaningful collective bargaining with their public employer.  Bargaining has meant better pay and benefits for home care workers in Illinois and elsewhere.  And while this case was ultimately about NRTW’s desire to get what it believed to be a willing Supreme Court to cripple, if not destroy, public sector unions, AFSCME and other public sector unions will continue to fight for the simple rights and dignity that every working American deserves.

Read more about Harris v. Quinn