Did Harris doom Dayton's attempt to unionize day-care workers?

Yesterday’s Supreme Court decision in Harris v Quinn put the kibosh on Illinois’ attempts to force personal-care assistants subsidized by state aid payments to cough up union dues. Did it do the same in Minnesota? Perhaps, although the issue is slightly different in the state’s attempt to force similarly subsidized day-care workers into AFSCME, one of the nation’s main public-employee unions. Minnesota’s case is at the Eighth Circuit pending the outcome in Harris, but that may not be entirely dispositive:

On Monday, child-care owners said they are optimistic the high court’s opinion will apply to their situation.

“The two cases are nearly identical, which gives us hope,” said Rochester child-care provider Jennifer Parrish, who leads the Coalition of Union Free Providers. “Child-care providers didn’t want this. The taxpayers of Minnesota didn’t want this.”

Parrish has sued the state to block unionization of child-care workers. Parrish v. Dayton is before the Eighth Circuit Court of Appeals, which put the case on hold pending the Supreme Court ruling. …

A St. Paul legal expert said the impact of the Supreme Court’s ruling on the state’s child-care lawsuit is far from clear. “They’re different issues,” David Larson, a professor of labor and employment law at Hamline University School of Law. “You certainly can’t say that this case decided [Monday] controls what happens in Minnesota.”

Larson said that Minnesota’s challenge is based on whether the workers in Minnesota can vote to form a union, while the Illinois home care providers had a union. The central issue in the Illinois case was mandatory union dues.

“That is a very different question,” Larson said.

Well, the cases were similar enough for the appellate court to wait for the Harris decision before ruling on Parrish v Dayton. The court must have recognized enough parallels to at least wait to see not just what the Supreme Court decided, but how it reached that decision. The question may be different, but the principles seem close enough to relate.

No one — not even the Supreme Court in Harris v Quinn — said that people can’t vote to form a union, but they have to be in the employ of a single employer. Harris held that indirectly receiving state aid does not qualify workers as state employees; their employment relationship is with their direct employer. If they want to form a union, they would have to organize each workplace individually. And even if they did form a union, the state could not compel them to pay union dues or even agency fees because they still would not be state employees, which eliminates the incentives to unionize in the first place.

On top of that, the Eighth Circuit cannot help but take notice of the aspersions the majority cast on Abood in the opinion. That decision cemented the authority of government to compel public employees to pay union dues or agency fees, although some states — notably Michigan — have passed “right to work” statutes that renounce that authority. The decision in Harris makes it clear that the court didn’t just kill the novel proposition that any state aid turns a person into a state employee, but that the forced collection of dues and agency fees even for actual employees is on its last legs.

If the Eighth Circuit was waiting for signals from the Supreme Court on Harris, it got more than enough bandwidth to send Mark Dayton’s pet project for his union supporters back to the drawing board. We’ll see soon enough how good their antennae are.

Update: Bloomberg’s editors also see the writing on the wall for Abood, and aren’t terribly sad about it:

The majority called Abood an “anomaly” resting on “questionable foundations,” charging that the 1977 court had “seriously erred” in its reading of precedents, which it “fundamentally misunderstood.”

The very first sentence of the Harris decision is its most important: This case, it states, “presents the question whether the First Amendment permits a state to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.” Swap out “personal care providers” for “public employees,” and it is difficult to see why the same First Amendment protections should be any different. …

President Franklin Roosevelt recognized that difference and viewed the formation of public-sector unions as a threat to democracy. Yet one need not oppose them to see forced payments to them as an unacceptable infringement on First Amendment rights. If the Supreme Court eventually reverses Abood, public-sector union leaders will have to work harder to attract members and generate revenue. Yet their ultimate future will not be determined by the court. It will be determined by whether workers view membership as something worth paying for.

Gary Gross has a few other thoughts about Dayton’s reaction to the decision.