Harris v Quinn more important than Hobby Lobby?
posted at 1:21 pm on June 30, 2014 by Ed Morrissey
In terms of direct impact on overreaching government power, perhaps the decision getting the least attention today is the most intriguing. Harris v Quinn addressed a movement in several states — Illinois in this case, but also in Minnesota and others — to force people into public-employee unions even though they are not directly employed by government, but privately employed and paid in part through public aid. The decision in this case narrowly centered on that distinction, but offers a window into a path for broader rollbacks of forced participation in PEU funding:
The Supreme Court dealt a blow to public sector unions Monday, ruling that thousands of home health care workers in Illinois cannot be required to pay fees that help cover the union’s costs of collective bargaining.
In a 5-4 split along ideological lines, the justices said the practice violates the First Amendment rights of nonmembers who disagree with the positions that unions take.
The ruling is a setback for labor unions that have bolstered their ranks — and bank accounts — in Illinois and other states by signing up hundreds of thousands of in-home care workers. It could lead to an exodus of members who will have little incentive to pay dues if nonmembers don’t have to share the burden of union costs.
But the ruling was limited to this particular segment of workers and it stopped short of overturning decades of practice that has generally allowed public sector unions of teachers, firefighters and other government workers to pass through their representation costs to nonmembers.
This AP read misses one essential fact from the Harris opinion, which is that it’s not about “nonmembers” at all, but about non-employees. “PAs are much different from public employees,” the court held in the majority opinion. The appellate court had found in favor of Illinois using Abood, which upheld the demand for “agency fees” from employees in a union shop that refused to join the union and/or objected to dues going to political activities. But Abood assumes that the union’s collective bargaining benefits non-members as well as members, which is only true if they have the same employment status.
That’s not the case in Harris, which means that agency fees cannot be collected:
The Illinois Legislature has taken pains to specify that personal assistants are public employees for one purpose only: collective bargaining. For all other purposes, Illinois regards the personal assistants as private sector employees. This approach has important practical consequences.
For one thing, the State’s authority with respect to these two groups is vastly different. In the case of full-fledged public employees, the State establishes all of the duties imposed on each employee, as well as all of the qualifications needed for each position. The State vets applicants and chooses the employees to be hired. The State provides or arranges for whatever training is needed, and it supervises and evaluates the employees’ job performance and imposes corrective measures if appropriate. If a state employee’s performance is deficient, the State may discharge the employee in accordance with whatever procedures are required by law.
None of this applies to the PAs, nor does the state assume any liability for the conduct of PAs, either. The intrusion of state-imposed unionization of individual homes and employment would “invite problems,” chiefly on where to draw the lines:
Consider a continuum, ranging, on the one hand, from full-fledged state employees to, on the other hand, individuals who follow a common calling and benefit from advocacy or lobbying conducted by a group to which they do not belong and pay no dues. A State may not force every person who benefits from this group’s efforts to make payments to the group. See Lehnert, 500 U. S., at 556 (opinion of SCALIA, J.). But what if regulation of this group is increased? What if the Federal Government or a State begins to provide or increases subsidies in this area? At what point, short of the point at which the individuals in question become full-fledged state employees, should Abood apply?
If respondents’ and the dissent’s views were adopted, a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach. Medicare-funded home health employees may be one such group. See Brief for Petitioners 51; 42 U. S. C. §1395x(m); 42 CFR §424.22(a). The same goes for adult foster care providers in Oregon
(Ore. Rev. Stat. §443.733 (2013)) and Washington (Wash. Rev. Code §41.56.029 (2012)) and certain workers under the federal Child Care and Development Fund programs (45 CFR §98.2).
Clearly this anticipates a much wider claim of government authority had Harris proceeded along the path granted by the lower courts.
However, the problems for PEUs don’t end there with the Harris opinion. The fate of Abood, which allows for forced collection of agency fees, looks potentially gloomy, depending on whether it gets challenged on its own. Justice Samuel Alito strongly hints that Abood itself might get reversed if directly challenged:
The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.
The Abood Court seriously erred in treating Hanson and Street as having all but decided the constitutionality of compulsory payments to a public-sector union. As we have explained, Street was not a constitutional decision at all, and Hanson disposed of the critical question in a single, unsupported sentence that its author essentially abandoned a few years later. Surely a First Amendment issue of this importance deserved better treatment.
The Abood Court fundamentally misunderstood the holding in Hanson, which was really quite narrow. As the Court made clear in Street, “all that was held in Hanson was that [the RLA] was constitutional in its bare authorization of union-shop contracts requiring workers to give ‘financial support’ to unions legally authorized to act as their collective bargaining agents.” 367 U. S., at 749 (emphasis added). In Abood, on the other hand, the State of Michigan did more than simply authorize the imposition of an agency fee. A state instrumentality, the Detroit Board of Education, actually imposed that fee. This presented a very different question.
This case did not challenge Abood but rather its extension to private-sector employees paid in part with subsidies from the state. That’s probably why the 5-4 majority didn’t summon the will to directly address Abood, but Alito has done everything except send semaphore signals to interested parties that might want to take a whack at overturning it. That would address the issues of PEU reform at its core by essentially mandating open shops in public-sector bureaucracies.
The direct ruling on Harris is bad enough for PEUS, but it may mean something worse down the line. For politicians looking to sell out home health-care workers to curry favor with union donors, it’s the end of one part of the gravy train, and an end to a potential line of reasoning that may have trapped a much wider part of the private sector into the government’s web of control and corruption.
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