SPRINGFIELD — In his bid to eliminate union fees for some state workers, Gov. Bruce Rauner cited U.S. Supreme Court precedent that’s less than a year old.
In 2014’s Harris v. Quinn, the high court held that a narrow class of employees — Illinois home health-care workers — could not be forced to contribute to unions because they were only “semi-public” employees.
Rauner touted the case last week as his justification for filing a lawsuit seeking for non-member union fees to be declared unconstitutional.
But to understand the holding in Harris, which originated in Chicago, one must backtrack 37 years to a case from Michigan — 1978’s Abood v. Detroit Board of Education.
That dispute began when public school teachers challenged a Michigan law requiring public employees to pay charges equal to union dues every month, whether they were in a union or not.
The teachers sought to overturn the statute because they opposed collective bargaining and the union’s ideological activities.
A unanimous Supreme Court decision authored by Justice Potter Stewart cited two private-sector cases, Railway Employees' Department v. Hanson and Machinists v. Street, in holding that non-member union dues are valid only to support representational purposes — such as contract negotiations and grievance processing — but not political work, such as lobbying or campaign advertising.
Historically, public unions have aimed to avoid “free-ridership” by making non-members pay a portion of union dues in exchange for representation they receive — say, legal expenses incurred during collective bargaining.
Stewart wrote that public employees’ union contributions do not hold a greater First Amendment interest than private ones because they share the same fundamental skills, needs and desire for advantages as private employees.
The court acknowledged that unions’ activities, as well as the views of members who disagree with them, could properly be considered political, but it ruled such a characterization does not place public employees’ beliefs on a different plain than those of private employees.
The court conceded that requiring public employees to help finance unions to collectively bargain could be thought to interfere with their freedom to associate. But it cited Hanson and Street to affirm the overlap is justified because the legislature has control over labor laws.
Last year, however, the Supreme Court’s opinion in Harris stated Abood followed the two private-sector labor cases too closely.
Service Employees International Union Healthcare Illinois & Indiana, which represented workers in the state’s Home Services Program, collectively bargained contract terms that included requiring non-members to pay agency fees — money to support the union’s representational actions.
A group of the program’s personal assistants filed a class-action suit claiming the Public Labor Relations Act violated the First Amendment because it required them to pay the fee.
In a 5-4 opinion by Justice Samuel A. Alito Jr., the high court ruled Abood could not apply in Harris because the assistants fell under a category of semi-public state employees.
While their work is largely private because their “customers” — the people they care for — dictate employment and duties, the court ruled the personal assistants are only considered public employees for collective bargaining purposes.
Alito wrote that Abood not only misinterpreted Hanson, it also failed to acknowledge the conceptual difficulty of distinguishing between representational and political expenses.
“In the private sector, the line is easier to see,” he wrote. “Collective bargaining concerns the union's dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.”
The court ruled personal assistants also cannot be considered full public employees because they’re ineligible for benefits outlined in a host of state laws and programs, including the Illinois Whistleblower Act.
The majority also noted the state doesn’t claim responsibility over personal assistants’ actions while on the job.
“So if a personal assistant steals from a customer, neglects a customer or abuses a customer, the [s]tate washes its hands,” Alito wrote.
Last week, meanwhile, Rauner issued an executive order declaring non-member union fees to be null and void, then filed suit in federal district court in Chicago asking a judge to both declare the fees to be unconstitutional and to endorse the constitutionality of his action.
In a statement issued after he signed the order, Rauner acknowledged Harris applied to a subset of state employees but said it should be applied to all state workers because that ruling cast several doubts on Abood, which set the initial precedent for non-member union fees.
Rauner needs a court to declare his move to be constitutional, his filing states, because of a conflict between his decision and the duties of a state agency.
The Department of Central Management Services handles fee deductions from union members’ paychecks, but it also reports directly to the governor. The duty for CMS to obey the executive order “creates a controversy” with the unions that will no longer receive fair-share payments, the suit says.
Paul G. Prendergast, a staff attorney for construction workers union Laborers Local 773 in Marion, said he believes many union members will choose to become “free-riders” if court rulings support the governor.
“If you take those ‘fair-share’ fees away, then everyone says, ‘Well you know what, I can just get the benefits of everything and not have to pay,’” he said. “Then unions won’t be able to represent anyone, which is what (Republicans) want because unions are the only voice on the left that have any kind of financing behind it that is consistent.”
Prendergast said he believes the governor is overstating the holding in Harris.
“While they spoke about ‘fair-share’ fees, (the court) did not go as far as to say that they were illegal, unconstitutional or violated of any other laws of the state of Illinois or United Sates,” he said.
Carlos S. Arevalo, a partner at Zukowski, Rogers, Flood & McArdle in Crystal Lake who represents municipalities in labor disputes, said he sees the case making its way to the Supreme Court.
The decision could come down to discovery, Arevalo said, as he believes the issue revolves around how unions are using their money. He said he doesn’t know whether unions are truly splitting money between bargaining and political expenses — and no one else does, either.
“I’ve never gotten into that issue,” he said. “Nobody has over the last 20-plus years or more.”
When unions and employers work well together, Arevalo said, non-members don’t see much benefit from their payments — and in those cases, someone could question whether such is being used appropriately.
Nevertheless, Arevalo said eliminating fair-share fees would impact unions nationwide by diminishing their funds and, in turn, their ability to influence.
As a result, neither side is taking the issue lightly, he said.
“It’s an issue the unions have to fight for,” he said. “There’s no choice for them.”