Cases in the U.S. Supreme Court and in California should terminate closed shops.
Terry Pell, The National Law Journal
March 10, 2014
A U.S. Supreme Court case challenging the forced unionization of Illinois home health care providers and a federal teacher suit challenging the constitutionality of compulsory union dues suggest that the days may be numbered for mandatory dues for public-employee unions, at least if the Supreme Court has its say.
This outcome would terminate the closed-shop laws in the 26 states and would signal a monumental reversal of several decades of Supreme Court precedent, one that would force public-employee unions to compete for dues on the same terms as any other professional organization.
That would be a good thing. People should be able to decide for themselves whether to join a union. The state cannot constitutionally compel an individual to financially support an organization with which he or she disagrees. When many unions, including teachers unions, started at the turn of the last century, they defended the rights of individual workers. Now, they’ve become what they used to fight: powerful, entrenched organizations more focused on self-preservation.
The outrageous facts of the Illinois case, Harris v. Quinn, appear to have hardened judicial sentiment for doing away with compulsory union dues. During last month’s oral arguments in the case, four of the justices seemed poised to end the several-decadeslong practice at the next opportunity and a fifth looked to be leaning that way — and for good reason. Harris concerns a challenge to a state statute signed by currently imprisoned and former Illinois Gov. Rod Blagojevich the day after his election that was supposed to provide his union supporters with a new source of membership. Faced with dwindling private-sector membership and stagnant government employment, Blagojevich told unions they could “organize” home health care providers.
Home health care providers aren’t employees, much less government employees. They are service providers, much like independent contractors, who perform specified tasks for set fees. Often they are relatives of the home-bound sick and receive fees from a federal Medicaid program administered by the states that is designed to enable often elderly individuals to remain in their homes in lieu of entering expensive nursing homes.
Since the rates of pay and services are set by federal and state regulation, there is little for a union to negotiate on behalf of these individuals. So it is unlikely that the unions could ever persuade them to pay dues to join a union, absent laws making union membership a condition of participation in the state home health care program. In exchange for forced dues, the Illinois union promised to provide nominal services such as training, orientation programs and, in some cases, health insurance. In no case did the union promise to negotiate on behalf of service providers with their employers, who in any case are the home-bound clients themselves. All that the union could promise to do was lobby the state for more generous subsidies.
At last month’s oral argument, a majority of justices were clearly skeptical of the unions’ new effort to organize independent service providers. The flagrantly coercive nature of the Illinois statute caused some of the justices to start talking openly about the coercive nature of compulsory dues of any kind. Justices John Roberts Jr., Anthony Kennedy and Samuel Alito all asked questions that strongly suggested they were thinking along these lines. The only issue seemed to be whether to end compulsory dues now or whether to wait for a case that required such a bold move. The swing vote in all this seemed to be Justice Antonin Scalia, who expressed concern about creating special First Amendment rights for public employees.
The Illinois case does not require the court to end compulsory dues across the board, and observers predict the court will wait for a case that squarely presents that question. But that could happen in as little as a year’s time, when Friedrichs v. California Teachers Association makes it to the court. In Friedrichs, 10 California teachers and an education association are challenging that state’s law that requires all public employees to join and support a union as a condition of employment.
Plaintiff Rebecca Friedrichs and her co-plaintiffs are claiming a First Amendment right to withhold financial support from a union with which they disagree. Asserting that right introduces accountability into the relationship between the duly recognized collective-bargaining agent and the individuals it is authorized by law to represent. Such accountability is notably lacking in California and elsewhere, where public-employee unions are major political players in their own right, ignoring conflicting interests of some of their members.
Although there may not be five votes to end compulsory dues in the Harris case, Friedrichs v. CTA could provide the pivotal fifth vote for fundamentally re-ordering of public-employee union law by ending compulsory dues and providing a realistic means of holding wealthy public-employee union chiefs accountable to their members.
Terry Pell is president of the Center for Individual Rights, a nonprofit public interest firm representing the plaintiffs in Friedrichs v. CTA.