Right of free speech and association trump “fair share” obligation to pay union dues

Update –  2016

The  United States Supreme Court in  Friedrichs v.  California Teachers Association, affirmed the lower court’s decision to not overrule  Abood v.  Board of Education, which held that the First Amendment did not prevent “agency shop” agreements where public employees who do not join the union are required to pay their “fair share” of union dues.  Since the March 2016 decision was a 4 to 4 split it had the effect  of  affirming  the Court of Appeals opinion  upholding  the right to require employees to pay their “fair share” of union dues. It would appear that resolution of this issue,  with some sort of finality,  will depend upon an appointment of a ninth member to the Court by the next president of the United States.

 Original Post – 2014

One of the most contentious issue between employers and unions is the payment of the “fair share” of union dues by persons who do not belong to the union for representation by the union as the exclusive bargaining agent for a bargaining unit (seemingly this issue lies at the heart of the battle over the right to work law). The “fair share”of union dues is for negotiating and administering the collective bargaining agreement between the employer and the union.

A recent United States Supreme Court decision in Harris v. Quinn (Quinn) held that persons who are not employees of the state were not required to pay their fair share of union dues because forced payment infringed upon their right of free speech and association. This 5 to 4 decision – by a sharply divided Supreme Court – could have far-reaching implications if it leads to overruling Abood  or could just be a blip on the radar screen depending on what happens next. Before discussing the implications of this decision a little background is helpful.

Bill of Rights

Bill of Rights

The State of Illinois established a home service program as part of its Medicare services that provides home services to help citizens remain in their home (Program) at a lower cost thereby preventing the unnecessary institutionalization of persons in nursing homes by the payment for a “personnel assistant” (PA).  The PA enters into a contract with the home-care patient (Customer) to provide the services that have been approved by the Customers physician.  The Customer controls the contents of the contract between the Customer and the PA.

The Court found in Quinn that the Customer is the employer because other than providing compensation the role of the State of Illinois is comparatively small like setting some basic threshold requirements for employment such as a social security number, basic communication skills, and an employment agreement with the customer.  The State suggests that PA’s can assume certain duties like performing household tasks, shopping, providing personal service care, performing incidental health care tasks and monitoring the health and safety of the customer.  The State also establishes the pay for the type of service.

In 2003, the Governor of Illinois issued an executive order calling for state recognition of a PA union as the exclusive representative for the purpose of collective bargaining with the state and the PA’s.  After a vote the SEIU (Union) was designated as the exclusive bargaining representative for purposes of collective bargaining with PA’s.  The Union and the State entered into a collective bargaining agreement that required all PA’s who were not union members to pay a fair share of the union dues, which were deducted directly from the Medicaid payments.

The majority opinion in Quinn could be viewed narrowly as simply a decision that concludes PA’s were not employees. On the other hand, the majority opinion sharply criticizes the Abood decision, which is the leading case establishing the foundation that nonmembers of the bargaining unit can be required to pay their fair share of union dues. If the Quinn decision  is a precursor to overruling Abood,  it will have far-reaching implications.

Another important aspect of the majority opinion in Quinn was the conclusion that right of association and free speech in the context of requirement of payment of union dues was subject to strict scrutiny under the First Amendment of the United States Constitution. As a general rule, it is almost impossible to overcome the burden of strict scrutiny under the First Amendment meaning that if the court determines that strict scrutiny applies you will almost always lose if you have to carry this burden.

Currently there is a case pending in Greene County Circuit Court challenging whether or not nonmembers of a public sector teachers union have a right to vote on the collective bargaining agreement reached between the Union and the R–12 School District. The outcome of this case could have far-reaching implications on  recognized collective bargaining rights in Missouri. In addition, the issue is further complicated because Missouri is one of the few states in the country that gives individuals a constitutional right to engage in collective bargaining. The framers of the 1945 Missouri Constitution included as part of the bill of rights a provision in article I, section 29 that provides “… employees shall have the right to organize and bargain collectively through representatives of their own choosing.”

It is generally recognized that interpretation of the right to collective bargaining in Missouri for public employees will likely look to federal case law for guidance. Still with five members of a United States Supreme Court questioning whether or not union security agreements requiring individuals to pay their “fair share” of union dues and the uniqueness of the Missouri Constitution, which gives individuals a right to engage in collective bargaining one has to wonder if this reasoning will hold.

For additional discussion concerning development of Missouri  public sector labor law  see my earlier Post on the Trilogy of Cases.

Howard Wright @ 2014

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