Widely Enforced Union Shop Provision Found Unconstitutional

by Emmanuel Bello

[EDITOR’S NOTE: Last March, Volume 31 Junior Staff member Kristin Kraemer discussed Harris v. Quinn, when the Supreme Court had just heard oral arguments. To read her blog post, as a primer, click here.]

It has been well settled that the “agency shop” provision of a public employee collective bargaining agreement, requiring non-union government employees who benefit from union representation to pay dues, does not violate the First Amendment rights of non-union employees.[1] One of the issues in the leading case supporting union shop provisions, Abood v. Detroit Bd. of Ed.,[2] was whether by compelling non-union government employees to financially contribute to a union—which in turn promoted political, religious, and social ideologies not consistent with those held by the non-union government employees—the union violated their right to freedom of speech and thought.[3] The Court held that it did not.[4] However, a recent Supreme Court decision has threatened this long-held belief.

In Harris v. Quinn,[5] the Supreme Court found the agency shop agreements to be a violation of non-union state employees’ First Amendment rights.[6] The Illinois legislature codified an executive order designating personal assistants as state employees for the sole purposes of providing them with union representation and engaging in collective bargaining with the state under the Illinois Public Labor Relations Act.[7] SEIU Health Care Illinois and Indiana was chosen to represent rehabilitation program PA’s on all collective bargaining agreements.[8] All the collective bargaining agreements entered into by the union had agency fee provisions, which mandated non-union PAs, as members of the “bargaining unit,” to pay dues to the union for operation costs.[9] After affirming the District Court’s ruling, the Seventh Circuit defined the PA’s as “state employees” as defined by Abood.[10]

While overturning the Seventh Circuit ruling, the Supreme Court criticized the rationale in Abood, questioning to what degree of certainty labor unions can guarantee that dues collected from its non-members are applied only to collective bargaining expenses, and not to politically-driven expenditures.[11] The Court stopped short of overruling Abood and distinguished the case at bar from Abood by categorizing the PA’s as partial public employees.[12]

But you cannot un-ring the bell. Maybe the Court’s rationale should apply to all labor unions that represent government employees. What choice does a new government employee have in selecting union representation? The facts in Abood do not indicate that there was any. Similarly in Harris, the SEIU Health Care was pre-designated as the sole union representative for all rehabilitation program PA’s. The court in Abood justified the First Amendment violations by arguing that they were outweighed by social values, like peaceful labor relations that were obtained when non-union employees were compelled to contribute to the union’s expenses.[13] The Supreme Court in Harris found the opposite to be true, finding no “compelling state interest” to imposing agency fees on non-union employees. [14]

It is foreseeable that government employees will argue that the differences between themselves and partial public employees are slight, and even if they are not, they should bear no weight in deciding whether to violate their First Amendment rights through forced representation and reluctant contribution to a political party that may not promote their interest. The question will certainly, be why are partial public employees afforded broader protections under the First Amendment than government employees, and what steps are labor unions willing to take to ensure that non-member dues are not allocated to politically-driven expenditures?

[1] Abood v. Detroit Bd. of Ed., 431 U.S. 209, 259 (1977); Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1287 (11th Cir. 2010).

[2] Abood, 431 U.S. 209 (1977).

[3] Id. at 210.

[4] Id. at 259.

[5] 573 U.S. __, 134 S. Ct. 2618 (2014).

[6] Id. at 2621.

[7] Id. at 2620.

[8] Id.

[9] Id.

[10] Id. at 2620-21.

[11] Id. at 2621.

[12] Id. at 2622.

[13] Abood, 431 U.S. at 219.

[14] Harris, 134 S. Ct. at 2622.

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