On Monday, the United States Supreme Court issued its anxiously anticipated decision in Harris v. Quinn, a case brought by Illinois home health aides challenging the requirement in a collective bargaining agreement that they pay their “fair share” of the cost of union representation. Although the State of Illinois and Service Employees International Union (SEIU) (the parties that negotiated the collective bargaining agreement in question) had prevailed before the District Court and the Seventh Circuit Court of Appeals, when this case made its way to the Supreme Court it became a vehicle for the potential overruling of long-standing Court precedent regarding “fair share” deductions first established in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). In Abood, the Court endorsed the proposition that a governmental entity may, consistent with the First Amendment, require public employees who exercise their option not to become members of a union to pay their “fair share” of the cost incurred by the union in representing them for purposes of collective bargaining.
The Court, in a 5 to 4 decision authored by Justice Alito, severely criticized the Abood holding for what it characterized as its “questionable foundations,” but ultimately sidestepped the question of whether it should be overruled. Instead, the Court held that Abood does not apply where the employees involved are not “full-fledged public employees.” With respect to this new category of public employees, the Court applied “generally applicable First Amendment standards” to determine that the fair share clause in the SEIU collective bargaining agreement unlawfully infringed on the First Amendment interests of the non-member employees.
The plaintiffs in Harris v. Quinn, whom the Court deemed “partial public employees,” were personal care assistants who deliver in-home care to disabled individuals as part of Illinois’ Medicaid-funded Rehabilitation Program. In 2003, the Illinois General Assembly passed legislation that narrowly amended the Illinois Public Labor Relations Act (the IPLRA) and deemed these personal care assistants public employees of the State of Illinois for the limited and sole purpose of collective bargaining. Shortly after the amendment, these personal care assistants selected SEIU as their exclusive representative and a collective bargaining agreement, including a fair share fee provision, governed most of their terms and conditions of employment.
THE COURT’S DECISION AND ITS RAMIFICATIONS
Abood Has Not Been Overruled
Although many observers predicted that this decision would result in the reversal of Abood, the majority refused to take that ultimate step, holding that Abood does not apply in the context of what it referred to as “partial public employees.” Where the Court goes from here, insofar as “fair share” cases are concerned, is less than clear. On the one hand, the majority opinion’s criticism of Abood is scathing, and leaves little doubt that five current justices believe Abood was incorrectly decided. On the other hand, given the battering Abood took in this decision, it is not obvious just what prevented the majority from taking the logical next step and overruling it. If this case did not present the appropriate context in which to do so, it is questionable exactly what circumstances would justify a reversal.
Impact on Home Health Aides and Similar Arrangements
As pointed out by Justice Kagan in the dissent, Illinois is one of several states that addressed the needs of the population requiring home health care through legislation authorizing the sharing of authority over the employees providing the services. In those case(s) where a governmental entity is a party to a collective bargaining agreement with a union, while another party shares control over the terms and conditions of employment of the employees, it is reasonable to assume that yesterday’s opinion will prohibit the public entity from agreeing to inclusion of a “fair share” provision in the collective bargaining agreement.
Impact on Determining Which Union Expenditures Are Properly Chargeable to Non-Members
Public sector unions are subject to a process requiring notification to non-members of the categories of expenditures it deems chargeable to non-members, subject to the proposition that unions may charge for expenditures for collective bargaining and contract administration but not for political or ideological purposes. Although Abood narrowly survives, yesterday’s opinion suggests that the scope of what constitutes an expenditure for “political” purposes may be significantly broader than previously understood. The Harris Court emphasized that, in the public sector, in contrast to the private sector, “core issues such as wages, pensions, and benefits are important political issues . . .” (emphasis added). Combined with its criticism of the Court’s chargeable/non-chargeable analysis, the Harris Court’s likening of collective bargaining to “political advocacy and lobbying” suggests that in the future it may prevent unions from charging non-members for bargaining for improvements in bread and butter economic issues such as wages and benefits because of their inherently “political” character. If so, the proportion of full dues that a union will be able to charge non-members will be significantly lower than current amounts, presumably making non-membership a more attractive option to employees.
Impact on Collective Bargaining Post-Harris
In view of the majority’s sweeping criticism of Abood, public employers may be tempted to refuse to bargain about fair share clauses in collective bargaining agreements. This strategy is ill-advised and poses significant hazards in Illinois. Abood remains good law as far as “full-fledged” public employees are concerned. Both Illinois public sector collective bargaining statutes (the IPLRA and its educational counterpart, the IELRA) still treat “fair share” provisions as a mandatory subject of bargaining and a public employer refuses to bargain over this subject at its peril. However, public employers should review the “fair share” provisions in their labor agreements to determine whether they should be updated to take account of the potential for increased liability (such as by insisting on strong and expansive indemnification provisions).
