Are Public Employee Unions on the Death Bed?

According to U.S. Supreme Court observers, the case of Harris v. Quinn (USCA, 7th Cir., No. 10-3835, decided September 1, 2011) argued before the Court on January 21, 2014 (No. 11-681) is raising serious issues about the viability of public employee representation. The case is a small seed from which a large plant may grow.  It raises the issue of whether public employees can be required to pay union dues or if those employees have a “right to work” free from union representation and the payment of those dues.  As such, Harris is perceived as an assault on a 1977 decision in Abood v. Detroit Board of Education (431 U.S. 209) which held that public employees had a right to unionize and that all public employees represented by a bargaining unit must pay dues to support the union, irrespective of whether the employees were actually union members.

The argument being advanced before the Court is that public employee unions deal more with public policy issues than working conditions.  As such, it is argued, forcing workers to participate in public employee representation by payment of dues, whether or not the workers are members of a public employee union violates their First Amendment rights.  Why?  Because not all union members would agree with the union statements and that might infringe on the non-dues paying workers’ positions on various issues, which might differ from that of the union.  In essence, by paying dues that might go toward public policy positions by the union, in whole or in part, those individuals were being “compelled” to adopt position of the bargaining unit toward the government, against their will.

Harris, and others who petitioned for Certiorari, are providers who serve participants in one of two programs in Illinois.  The providers generally provide personal care to the programs’ participants.  The federal Medicaid Home and Community Based Service Program partially funds state programs that assist persons with disabilities with living in their homes to prevent their institutionalization.

The State of Illinois requires that individuals who provide in-home care to Medicaid recipients accept and support an exclusive representative to petition the State over its reimbursement rates for that care.  Harris argues that compelling the providers to associate (by the payment of dues) for purposes of petitioning the government about a public-aid program infringes on their right to free expressive association guaranteed by the First Amendment.  That argument did not prevail in the United States Court of Appeals for the Seventh Circuit, and Harris appealed to the Supreme Court.

In the end, it may well be that the Supreme Court refuses to revisit its opinion in Abood, and upholds that decision in its entirety, rejecting the argument of the providers in Harris.  However, with the current attacks on public unions being at the forefront of much public policy debate, this case will be closely watched.

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