Supreme Court Rejects Request To Hold ‘Fair Share’ Unconstitutional

In what some have termed the most significant labor case in years, the United States Supreme Court has rejected a request to hold “fair share” assessments unconstitutional.

“Fair share” assessments occur under the laws of 20 states which not only grant public employees the right to bargain, but also impose upon unions the duty to fairly represent all members of their bargaining units. Under “fair share” provisions, non-union members who benefit from the union’s performance of its duty (through contract negotiations and grievance handling, for example) must pay their “fair share” of the costs of negotiating and administering the contract, but cannot be assessed any fees for the union’s political activity.

The case the Supreme Court was considering was Harris v. Quinn, and like many challenges in recent years to union dues, was being litigated by the National Right to Work Legal Defense Foundation, an organization which has received significant funding and assistance from groups founded by Charles and David Koch. The employees in Harris worked in Illinois’ Home Services Program, which allows Medicaid recipients who would normally need institutional care to hire a “personal assistant” to provide homecare services.

Under State law, the homecare recipients (designated “customers”) and the State both play some role in the employment relationship with the personal assistants. Customers control most aspects of the employment relationship, including the hiring, firing, training, supervising, and disciplining of assistant, and define job duties by proposing a “Service Plan.” Other than compensating the personal assistants, the State’s involvement in employment matters is minimal. Its employer status was created by executive order, and later codified by the legislature, solely to permit assistants to join a labor union and engage in collective bargaining under Illinois’ Public Labor Relations Act.

When the case was accepted by the Supreme Court, the Right To Work Foundation asked the Court to use Harris to overturn Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), the almost 40-year old Supreme Court decision finding that “fair share” rules did not violate the free speech guarantees of the First Amendment. When the case was orally argued before the Court in January 2014, there were some questions whether all five members of the reliably conservative wing of the Court were ready to overturn Abood and, in effect, turn the country into a “right to work” environment for public employees.

That reluctance is clearly what produced a narrow decision in Harris. The Court did hold that applying “fair share” rules to personal assistants was unconstitutional. The assistants, the Court found, simply didn’t have a strong enough employment relationship with the State to allow fair share to be applied. As the Court put it, “Abood involved full-fledged public employees, but in this case, the status of the personal assistants is much different. 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.”

The Court pointed to the fact that the customer, not the State, set the job duties for personal assistants, and that customers had complete discretion to hire and fire the assistants. Customers, not the State, supervised the assistants, and assistants were not eligible for State benefits such as health insurance and pensions. Even wages were non-negotiable.

This meant, the Court found, that “Abood’s rationale, whatever its strengths and weaknesses, is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law. Under the Illinois scheme now before us, however, the union’s powers and duties are sharply circumscribed, and as a result, even the best argument for the “extraordinary power” that Abood allows a union to wield, is a poor fit.”

The Court’s opinion stopped there, and expressly did not overturn Abood, leaving fair share in place throughout the country. This did not stop the five-justice majority from raising a series of questions about Abood’s continuing viability, nor did it stop the four dissenting judges from fiercely defending the principles of fair share” and asking pointed questions about why the personal assistants were really all that different.

In the end, though, “fair share” rules remain generally intact, even if an unusual group of employees in Illinois are exempt from them.

Harris v. Quinn, 573 US ____ (June 30, 2014).

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