Article: Harris v. Quinn: Public Sector Unions Survive the “Right to Work” Movement…For Now

Harris v. Quinn: Public Sector Unions Survive The “Right to Work” Movement … For Now

The constitutionality of fair share fees assessed by public sector unions was recently addressed by the U.S. Supreme Court. Harris v. Quinn[1] asks whether quasi-state employees have a First Amendment right to refuse to pay fair share fees. The eight petitioners who brought the case (with assistance from the National Right to Work Legal Defense Foundation) are home health care workers who are paid by the State of Illinois, but all other aspects of their employment are controlled by the homecare recipients. The petitioners argued that the fair share fees they are required to pay their union violate their First Amendment rights to free speech. In doing so, the petitioners urged the Court to declare that public employees cannot be compelled to pay union dues and that all states must adopt the “right-to-work” system that makes union membership, dues, and fair share fees purely voluntary.

The U.S. District Court dismissed the petitioners’ lawsuit, relying heavily on Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court precedent that established the constitutionality of fair share fees for public employees based on the desirability of “labor peace” and the problem of “free riders.” The District Court found that the fair share provision was authorized by Abood, and that, consequently, there was no violation of the First Amendment. The Seventh Circuit upheld that dismissal, also relying on Abood. 656 F3d 692 (7th Cir. 2011).

In a 5-to-4 decision written by Justice Alito, in which Justices Scalia, Roberts, Kennedy and Thomas joined, the conservative majority of the Supreme Court reversed the lower courts and ruled that the petitioners are not public employees, but more appropriately characterized as “quasi-public employees” because their terms and conditions of employment are controlled by the homecare recipients. The court concluded that quasi-public employees may opt out of union representation and thereby avoid paying fair share fees. Noting that the legal reasoning in Abood was “questionable” and its First Amendment underpinnings insufficient, the Court ruled that for quasi-public employees, such as the petitioners, the legal framework established by Abood does not apply. As a result, the Supreme Court held that the fair share fees paid by the home health care workers in Harris amounted to “compelled speech” under the First Amendment. “[C]ompelled funding of the speech of other private speakers or groups presents the same dangers as compelled speech. As a result, . . . an agency-fee provision imposes a significant impingement on First Amendment rights, and this cannot be tolerated unless it passes exacting First Amendment scrutiny.” Slip Op. at 29. In declaring the fair share fees unconstitutional, the Court did not find a compelling state interest in “maintaining labor peace” or in preventing the problems that arise with “free ridership.” Slip Op. 31-33.

Justice Kagan authored the dissenting opinion, in which she was joined by Justices Ginsberg, Sotomayer, and Breyer. Justice Kagan writes that the ultimate preservation of Abood is “cause for satisfaction, though hardly applause.” The dissent takes aim at the majority’s distinction between quasi-public employees and “real” public employees, suggesting that the majority’s decision is a veiled attempt to dismantle Abood. “Today’s opinion takes the tack of throwing everything against the wall in the hope that something might stick. A vain hope, as it turns out. Even once disentangled, the various strands of the majority’s reasoning do not distinguish this case from Abood.

The National Right to Work Legal Defense Foundation had hoped Harris would signal the end of public sector unionism as we know it. Thankfully, that’s not the case. Under Harris, quasi-public employees, such as homecare workers paid from public funds, can refuse to pay union dues – even their “fair share” of union dues – under a First Amendment free speech objection. But for the vast majority of public sector unions in Oregon and Washington, Harris should not result in significant changes unless they represent large numbers of the “quasi-public employees” at issue in the case.

Like many other states, Oregon and Washington’s public employee collective bargaining acts allow employees to become non-members of a union and to pay “fair share” fees for the union’s collective bargaining activities. The Supreme Court’s ruling in Harris is very narrow. It applies only to individuals who work in quasi-public positions, like the homecare providers in Harris. While there are some unionized employees who will be affected by this ruling, the vast majority of public sector union employees must continue paying fair share fees.

Although Harris does not overrule Abood or alter the legal framework that established the constitutionality of fair share fees for full-fledged public employees, the conservative majority in the Harris opinion signaled that it is prepared to reconsider Abood. For the last 37 years, public sector labor unions have relied on Abood to establish fair share fees and union security clauses in labor contracts. Harris suggests that, under the right circumstances, the Court will consider a much broader challenge to union dues that could have sweeping ramifications on public sector fair share fees and union security clauses. Public sector unions may have dodged a bullet in Harris, but it is simply a matter of time before the next challenge to union dues is presented to the Court. And when it does, expect to see the Harris decision used to advocate to the Court that all states must adopt the “right to work” regime.