Private: Harris v. Quinn: Creating a First Amendment Right to Freeload

by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School

Why would you pay for something if you can get it for free?  The obvious answer is that you wouldn’t.  And after this week’s decision in Harris v. Quinn (No. 11-681), if you work as a homecare provider in Illinois, you can get all the pay raises and benefits increases that the union negotiates without having to pay a penny to support those efforts.  According to the 5-4 opinion written by Justice Samuel Alito, the First Amendment guarantees that outcome.  Here’s how he got there, and where he went off the proper constitutional track.

In about half the states, employees who work for state agencies (including teachers) have the right to join unions, and those unions have the right to bargain with the state or its agencies over terms and conditions of work. Depending on both the state and the job, the union may be able to negotiate over pay and benefits, as well as working conditions. Many such contracts have grievances procedures in which the union represents workers in an effort to resolve disputes with the employer.  Negotiating and implementing contracts cost money, and to pay for those services, states authorize unions, where a majority of the workforce agrees to establish one, to charge all employees for those services directly related to collective bargaining.  In exchange, the union is under a legal obligation to fairly represent all individuals covered by the collective bargaining agreement. The right to organize for public employees is governed by state law, and there is another system for private sector employees that generally operates in the same way, albeit with some significant differences that were not relevant in Harris.

The workers in Harris were paid by the state, but worked for Medicaid recipients who needed a variety of home care services. Under Illinois law, the recipients choose the person who would provide those services (many of whom are family members) and direct and control his or her assignments. There were many other distinctions between those workers and the typical state employee, but Illinois decided that it would be willing to allow those workers to form a union to bargain with the state over wages and benefits, if a majority of those who performed such services voted for a union, which would mean the mandatory payment of monthly dues to support its work.

In 1977, in Abood v. Detroit Bd of Education, 431 U.S. 209, the Supreme Court ruled that it was constitutional for a union to charge even those employees who did not wish to join for their fair share of the costs of collective bargaining related activities. However, it also held that the First Amendment prevented the state from imposing a duty to pay for other activities, such as electioneering for state and local candidates, or lobbying on issues not directly related to the well-being of the union’s members. The rationale for that line is that no person should be compelled to fund speech of which he or she disapproves because that would violate the First Amendment.  Although the challengers in Harris asked the Court to overrule Abood, and bar all state employee unions from collecting any dues from dissenting members, the Court declined to do that.  Instead, it ruled that the home care workers were so different from typical state employees that allowing the union to collect any dues would be a “significant expansion of Abood” (Slip op. 9), and it declined to permit that.  Thus, according to the majority, those who object to a union can reap the benefits of the union’s efforts – which have resulted in a doubling of workers’ pay in less than a decade, as well as providing for state funded health insurance, better training, and increased workplace safety (Kagan dissent at 7) – without having to pay for those efforts, at least in the future.  The Court recognized the problem, which it referred to by the technical term “free-rider effect,” but for which the term “freeloader” seems more appropriate. It said, in effect, “the First Amendment made me do it.” That conclusion is wrong for at least two reasons.

Most of the majority opinion is spent discussing how home care workers are different from typical state employees and why traditional collective bargaining is much less necessary for them, and much less important for the state than is true for most state workers. Assuming that Justice Alito is correct in that assessment, those differences have nothing to do with the First Amendment, which was the basis of the plaintiffs’ claims. If they are relevant at all, it is with respect to the decision by the state as to whether to expand the state statute to include these workers, a question on which the First Amendment has no relevance. The First Amendment comes into play once a union has been formed by the agreement of a majority of the bargaining unit, and the issue is what costs may dissenters refuse to pay because they are being used to support ideological positions that the dissenters oppose?

It is at this next stage that the court committed its most serious error.  Justice Alito’s first sentence, using the Abood formula, posed the question as “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.” From that, one might suppose that the dissenters are being asked to pay, for example, for their union to lobby for affirmative action in higher education, or for a higher minimum wage for fast-food workers, or against the state paying for a new football stadium. But the record is crystal clear that the Harris plaintiffs have accused the union of doing no such thing.  Instead, the money is only being spent to improve the wages and benefits of those in its bargaining unit, which is the precise set of activities that the Court has upheld as properly chargeable to everyone – union supporter or not – in every case starting with Abood.

How did Justice Alito transform conduct that is at the heart of every union’s efforts into “matters of public concern?” Here is what he said on page 17: “In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.” He then talked about how the wages and benefits of state employees “have mushroomed” from which he concluded that the issue of state employee wages and benefits is a matter of public concern and hence comes within the prohibitions of Abood. Think about that for a minute: does Justice Alito suggest that the plaintiffs are opposed to wage increases for themselves and that they would prefer not to have health insurance paid for by the state and have less training and be subject to greater safety hazards on the job? If not, then what is the “matter of public concern” on which they dissent from what their union is saying and doing? To be sure, the issue of the proper level of state employee compensation is a matter of public concern, and perhaps if the union here lobbied for across the board wage increases for all state employees, that would cross the Abood line.  But it distorts Abood beyond all recognition to hold that lobbying on matters that go to the heart of why the union exists is somehow outside its proper realm because those matters also raise public policy concerns for the larger community.

More importantly, the ruling is a serious blow to unions and threatens to be extended to all public employee unions, even those that do nothing more than negotiate and implement collective bargaining agreements.  It means that this union and others like it can no longer collect dues from anyone who wants to refuse to pay. The fact that many workers once agreed to form a union, and pay dues is no longer significant because they did so with the expectation that everyone would have to pay their fair share, which is no longer true. Perhaps all the irrelevant discussion of the differences between the union in Harris and those unions that represent full time regular state employees will be enough to stem the tide. But if it is not, then the Court will have created a new, expanded “First Amendment right to freeload” that will impose another significant burden on organized labor inflicted on it by the Court.

Constitutional Interpretation, First Amendment, Labor and Employment Law, Supreme Court