Constitutionality of Forced Dues ‘Questionable’

But Millions of Public Servants Must Continue to Bankroll Unions

(From the August 2014 National Right to Work Committee Newsletter)

From 1977 until this year, the U.S. Supreme Court repeatedly invoked a strained and constricted reading of the First Amendment in order to uphold the imposition of compulsory financial support for government unions’ bargaining activities.

But on June 30, Justice Samuel Alito’s 5-4 majority opinion in Harris v. Quinn marked a clear break from the pro-forced unionism-in-government stance the High Court had adopted 37 years earlier in Abood v. Detroit Board of Education.

At a minimum, Mr. Alito’s opinion made it plain that putative “labor peace” is not an all-purpose excuse for sanctioning the extraction of forced dues and fees from Americans for government union-boss representation they don’t want, and never asked for. 

Hundreds of Thousands of Home Caregivers Stand to Regain Their Right to Work

The eight plaintiffs in Harris, a landmark case that left Abood standing, but manifestly shaken, are a group of independent-minded home care providers who were redefined by Illinois elected officials as public employees solely for purposes of unionization.

As a consequence of this redefinition, some of the Medicaid subsidies intended for the patients of several plaintiffs have for years been diverted, against their will, into union coffers. And other plaintiffs and their patients have faced an imminent threat of forced union dues payments.

Since the Harris case began back in 2010, all the plaintiffs have been represented by National Right to Work Legal Defense Foundation attorneys.

In briefs presented to district and appellate courts and, finally, the Supreme Court, Foundation attorneys contended that, because the state of Illinois was not the plaintiffs’ common-law employer or their sole employer, the Abood excuse for compelling employee financial support for unions did not apply to them.

Since the plaintiffs were not employed in any government workplace, their exercise of their right not to bankroll an unwanted union could not even theoretically pose a threat to “labor peace” in the workplace, as the Abood opinion had envisioned.

Fortunately, Mr. Alito and four other justices on the High Court publicly agreed that disgraced ex-Gov. Rod Blagojevich and other Illinois politicians had gone further than is constitutionally permitted by corralling home health caregivers into a union.

And thanks to the Foundation-won Harris decision, hundreds of thousands of other home caregivers in Illinois and 13 other states whose politicians have rubber-stamped Big Labor handouts similar to the Blagojevich scheme also stand to regain their Right to Work.

Union Lawyers Found It Difficult to Demonize Harris Plaintiffs

Once the home caregiver forced-unionism schemes concocted by Mr. Blagojevich and his successor, incumbent Illinois Gov. Pat Quinn, came under legal fire, the Service Employees International Union (SEIU) bosses who were the

principal beneficiaries found the schemes to be unexpectedly difficult to defend in court.

Certainly, SEIU lawyer Paul Smith, who served as Mr. Quinn’s counsel of record in the case, found it difficult to demonize the Harris plaintiffs as “union busters.”

In regard to this persistent problem for Big Labor, Mark Mix, president of the National Right to Work Foundation and the National Right to Work Committee, observed:

“Overwhelmingly, the Foundation’s clients in Harris are people who tend to their own disabled family members. Mr. Smith could have tried to impugn their motives, as union lawyers typically do when any citizen challenges union officials in court, but it’s unlikely that would have gotten him anywhere.

“Mr. Smith and company also had a hard time getting around the fact that the higher ‘pay rates’ for home caregivers for which union bosses purport to fight may, if achieved, leave patients with less money to cover the other expenses they incur while being treated at home.”

Even For ‘Full-Fledged’ Public Workers, Forced Dues Are Constitutionally Dubious

Mr. Mix added:

“The fact is, there is no plausible justification for laws and executive orders compelling even ‘full-fledged’ public employees, as Sam Alito called them in his majority opinion, to fork over union dues.

“Under the American system of limited government, bankrolling a union you may or may not want simply isn’t something you should have to do in order to teach at an elementary school, help library patrons locate the books they want, or check a home fire-alarm system.

“Paul Smith himself effectively admitted before the nine justices at the Harris oral arguments that his SEIU clients and other union officials claim the constitutional prerogative to force, with the government’s help, employees to pay union dues for detrimental union ‘representation.’”

Public-Sector ‘Bargaining,’ ‘Political Advocacy’ Both ‘Directed at the Government’

“There is no way to reconcile this judicially uncontested fact with the pro-forced dues reasoning and conclusion of the Abood opinion,” Mr. Mix continued.

“This unfortunate precedent tacitly and incorrectly assumed that all government employees, including union nonmembers as well as members, who are subject to union monopoly bargaining benefit thereby.”

Agreeing on key points with the Harris plaintiffs’ counsel of record, William Messenger, and other Right to Work attorneys, Mr. Alito and the four justices who joined with him identified several other profound flaws in Abood’s reasoning.

For example, Justice Potter Stewart’s Abood opinion supposed it would be relatively easy to distinguish government union bosses’ political activities, which nonmembers could not be constitutionally forced to bankroll, from their bargaining activities, for which forced nonmember fees could be exacted.

But unlike in the private sector, Mr. Alito noted, where bargaining is directed at the employer and political advocacy is directed at the government, “in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government.”

In Many States, Public Servants Will Continue Being Forced to Pay Dues, or Lose Their Jobs

Unfortunately, even though the Harris oral argument and long passages of the opinion itself left Abood’s “labor peace” rationale for circumscribing government employees’ free speech in tatters, Mr. Alito and the rest of the Harris majority declined to take the opportunity to overturn Abood.

Having found in favor of the plaintiffs without reaching Abood, other than to explain in some detail why it was and remains a “questionable” decision, the High Court called it a day.

“Harris is an important incremental victory for Right to Work supporters,” said Mr. Mix.

“Thanks to this ruling, home health caregivers, and also daycare providers, group home leaders and other Americans who perform services for individuals, but receive indirect funding from the government, in more than a dozen states should promptly be liberated from forced union dues and fees.

“But because of the limited nature of the decision, the vast majority of the roughly 5.8 million unionized public employees living in non-Right to Work states will continue to face the threat of termination for refusal to bankroll an unwanted union.

“The decision did cast into grave doubt whether state laws and other policies authorizing the forced extraction of union dues from public servants are permissible under the First Amendment.

“However, at least for the near future, the task of actually eliminating these constitutionally dubious statutes and policies has been left to state legislative and executive officials.”