Even When Big Labor Can’t Collect Forced Fees, It Guards Its Monopoly-Bargaining Privileges Zealously

Last summer, the U.S. Supreme Court alarmed government union bosses across the country when it found, in Harris v. Quinn, that Big Labor Illinois politicians had violated the First Amendment by seeking to compel and actually compelling home personal care providers who are neither public nor private employees to join or pay fees to a private organization as a condition of their patients’ participation in state Medicaid waiver programs.

The Harris case was argued and won by National Right to Work Legal Defense Foundation attorneys on behalf of a number of independent-minded home health care providers in the Prairie State who were willing to wage a long legal battle to avoid being corralled into a union simply to make it possible for their disabled patients (typically relatives or personal friends) to receive Medicaid funds for care in the home instead of being institutionalized.

It set a precedent that is now protecting hundreds of thousands of home care providers across the country from being forced to pay union dues or fees. Among them are Massachusetts residents who furnish, in their homes, “family child care services on behalf of low-income and other at-risk children and receive payment from the Commonwealth for such services . . . .”  Under a state law signed in 2012 by then-Gov. Deval Patrick, such providers are defined as “state employees” for the limited purpose of enabling union officials to corral them into unions.

Thanks to Harris, forced fees for home child-care providers are off the table.  However, under the 2012 statute, known as Act 189, the officers of a single union may still acquire the power to force home child-care providers to accept them as their mandatory “exclusive” (monopoly) representative for petitioning the Massachusetts Department of Early Education and Care (EEC) over certain matters of public policy.

Currently under Act 189, only officers of Local 509 of the Service Employees International Union (SEIU) may deal with the EEC over “education and training opportunities for family child care providers, improvement of recruitment and retention of qualified providers and reimbursement and payment procedures,” for example.

Big Labor bosses routinely claim that care providers who don’t want a union, and haven’t joined, as well as those who are union members, “benefit” from having a single union as their monopoly-bargaining agent.  But common sense indicates that being forced to accept representation you never asked for is not a “benefit.”  And nine Massachusetts citizens who operate child-care businesses in their homes believe so strongly that they are, in reality, harmed by union monopoly bargaining that they have gone to federal court in order to vindicate their First Amendment right to choose with whom they associate to petition their state government on policy matters that concern them.

Rather than fight this lawsuit, in which the independent-minded care providers are being represented by Foundation attorneys, one might expect that, based on the rhetoric the union hierarchy indulged in during the Harris case, SEIU Local 509 officials would let it go unchallenged.  While Harris was under way, union bosses and their lawyers insisted that it is “burdensome” and potentially financially ruinous for a union to exercise monopoly-bargaining privileges when care providers aren’t forced to join or pay dues.

But the fact is, SEIU bosses are fighting furiously to retain their monopoly power to deal with the EEC over matters concerning Massachusetts child-care providers.  They know full well, as AFL-CIO Associate General Counsel Thomas E. Harris admitted back in the early 1960’s, that even in the absence of forced-dues privileges monopoly bargaining itself puts a citizen “under powerful compulsion to join the union, since that is the only way he can have a voice in determining the provisions of the collective agreement.”  That means monopoly bargaining, with or without forced union dues, increases Big Labor wealth and power.

The Right to Work Foundation-represented plaintiffs in the ongoing Massachusetts case, D’Agostino v. Patrick, have made a strong case that government-promoted union monopoly bargaining over home care providers is unconstitutional. Unfortunately, last month a federal district judge in the Bay State found that forcing providers who don’t want anything to do with the SEIU union to band with Local 509 in their dealings with the government does not violate their First Amendment rights.  The plaintiffs and their Foundation attorneys are now seeking to get the U.S. Court of Appeals for the First Circuit to take up the case. (See the news story linked below for more information.)

But regardless of how D’Agostino v. Patrick is ultimately resolved by the judiciary, it has already added to the ever-growing mountain of evidence that monopoly bargaining is no “burden” for Big Labor.  Rather, it is a privilege union bosses covet and will fight aggressively to defend whenever and wherever it is challenged.

Subsidized Child–care Providers Test Limits of Association