Harris v. Quinn: US Supreme Court Rules on First Amendment Rights of Hybrid Public Sector and Private Sector Union Members

In Harris v. Quinn, ___ U.S. ___ (6/30/2014), the United States Supreme Court considered "whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support." The Court held that it does not, although the opinion's scope and future applicability seem to be limited by the fact that the union members at issue occupy a position somewhere between full-fledged public sector and private sector employees. 

The opinion is written by Justice Alito, with Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joining. Justice Kagan wrote a dissent, in which Justices Ginsburg, Breyer, and Sotomayor joined. 

As usual, the decision's syllabus does an excellent job of tracing the ins and outs of the majority opinion: 

Illinois' Home Services Program (Rehabilitation Program) allows Medicaid recipients who would normally need institutional care to hire a "personal assistant" (PA) to provide homecare services. Under State law, the homecare recipients (designated "customers") and the State both play some role in the employment relationship with the PAs. Customers control most aspects of the employment relationship, including the hiring, firing, training, supervising, and disciplining of PAs; they also define the PA's duties by proposing a "Service Plan." Other than compensating PAs, the State's involvement in employment matters is minimal. Its employer status was created by executive order, and later codified by the legislature, solely to permit PAs to join a labor union and engage in collective bargaining under Illinois' Public Labor Relations Act (PLRA).  

Pursuant to this scheme, respondent SEIU Healthcare Illinois & Indiana (SEIU-HII) was designated the exclusive union representative for Rehabilitation Program employees. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. A group of Rehabilitation Program PAs brought a class action against SEIU-HII and other respondents in Federal District Court, claiming that the PLRA violated the First Amendment insofar as it authorized the agency-fee provision. The District Court dismissed their claims, and the Seventh Circuit affirmed in relevant part, concluding that the PAs were state employees within the meaning of Abood v. Detroit Bd. of Ed., 431 U.S. 209 .  

Held: The First Amendment prohibits the collection of an agency fee from Rehabilitation Program PAs who do not want to join or support the union. Pp. 8-40.  

(a) In upholding the Illinois law's constitutionality, the Seventh Circuit relied on Abood, which, in turn, relied on Railway Employes v. Hanson, 351 U.S. 225 , and Machinists v. Street, 367 U.S. 740 . Unlike Abood, those cases involved private-sector collective-bargaining agreements. The Abood Court treated the First Amendment issue as largely settled by Hanson and Street and understood those cases to have upheld agency fees based on the desirability of "labor peace" and the problem of " 'free riders[hip].' " 431 U.S., 220-222 , 224 . However, "preventing nonmembers from free-riding on the union's efforts" is a rationale "generally insufficient to overcome First Amendment objections," Knox v. Service Employees, 567 U.S. ___ , ___ , and in this respect, Abood is "something of an anomaly," 567 U.S., at ___ .   

The Abood Court's analysis is questionable on several grounds. The First Amendment analysis in Hanson was thin, and Street was not a constitutional decision. And the Court fundamentally misunderstood Hanson's narrow holding, which upheld the authorization, not imposition, of an agency fee. The Abood Court also failed to appreciate the distinction between core union speech in the public sector and core union speech in the private sector, as well as the conceptual difficulty in public-sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes. Nor does the Abood Court seem to have anticipated the administrative problems that would result in attempting to classify union expenditures as either chargeable or nonchargeable, see, e.g., Lehnert v. Ferris Faculty Assn., 500 U.S. 507 , or the practical problems that would arise from the heavy burden facing objecting nonmembers wishing to challenge the union's actions. Finally, the Abood Court's critical "labor peace" analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers. Pp. 8-20.  

(b) Because of Abood's questionable foundations, and because Illinois' PAs are quite different from full-fledged public employees, this Court refuses to extend Abood to the situation here. Pp. 20-29.  

(1) PAs are much different from public employees. Unlike full-fledged public employees, PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment. Even the scope of collective bargaining on their behalf is sharply limited. Pp. 20-25.  

(2) Abood's rationale is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law. Even the best argument for Abood's anomalous approach is a poor fit here. What justifies the agency fee in the Abood context is the fact that the State compels the union to promote and protect the interests of nonmembers in "negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances." Lehnert,supra, at 556. That rationale has little application here, where Illinois law requires that all PAs receive the same rate of pay and the union has no authority with respect to a PA's grievances against a customer. Pp. 25-27.  

(3) Extending Abood's boundaries to encompass partial public employees would invite problems. State regulations and benefits affecting such employees exist along a continuum, and it is unclear at what point, short of full-fledged public employment, Abood should apply. Under respondents' view, a host of workers who currently receive payments from a government entity for some sort of service would become candidates for inclusion within Abood's reach, and it would be hard to see where to draw the line. Pp. 27-29.  

(c) Because Abood does not control here, generally applicable First Amendment standards apply. Thus, the agency-fee provision here must serve a " 'compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.' " Knox, supra, at ___ . None of the interests that respondents contend are furthered by the agency-fee provision is sufficient. Pp. 29-34.  

(1) Their claim that the agency-fee provision promotes "labor peace" misses the point. Petitioners do not contend that they have a First Amendment right to form a rival union or that SEIU-HII has no authority to serve as the exclusive bargaining representative. This, along with examples from some federal agencies and many state laws, demonstrates that a union's status as exclusive bargaining agent and the right to collect an agency fee from nonmembers are not inextricably linked. Features of the Illinois scheme-e.g., PAs do not work together in a common state facility and the union's role is very restricted-further undermine the "labor peace" argument. Pp. 31-32.  

(2) Respondents also argue that the agency-fee provision promotes the welfare of PAs, thereby contributing to the Rehabilitation Program's success. Even assuming that SEIU-HII has been an effective advocate, the agency-fee provision cannot be sustained unless the union could not adequately advocate without the receipt of nonmember agency fees. No such showing has been made. Pp. 32-34.   

(d) Respondents' additional arguments for sustaining the Illinois scheme are unconvincing. First, they urge the application of a balancing test derived from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 . This Court has never viewed Abood and its progeny as based on Pickering balancing. And even assuming that Pickering applies, that case's balancing test clearly tips in favor of the objecting employees' First Amendment interests. Second, respondents err in contending that a refusal to extend Abood here will call into question this Court's decisions in Keller v. State Bar of Cal., 496 U.S. 1 , and Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 , for those decisions fit comfortably within the framework applied here. Pp. 34-40.

The full opinion is available here. SCOTUSblog has a number of interesting articles on the decision here.