On Monday, the Supreme Court took a swipe at public sector compulsory unionism. In doing so, the Court took a slice out of decades of Supreme Court jurisprudence and suggested a future re-thinking of agency fees in the public sector. In Harris v. Quinn, No. 11-681 (June 30, 2014), Illinois tried to facilitate home health care for those most in need and least able to afford it. The State created minimal guidelines for practitioners to qualify for the program, but otherwise the practitioners were hired, evaluated, and fired by their individual patients. Later, Illinois passed a law deeming the practitioners to be State employees for one purpose only: to have a single bargaining representative for matters related to the State. The practitioners sued, claiming that this compulsory unionism violated their Constitutional rights to association and free speech because it forced them to pay dues or agency fees to fund a union whose bargaining and political activities contradict their own beliefs and tenets. The Supreme Court struck down the Illinois statute, concluding that Illinois was not the practitioners’ true employer, and therefor could not force them to be members or pay agency fees to the union.
The issue is remarkably narrow and not likely to recur. However, most of the Supremes’ opinion addresses the larger issue of whether a public employer ever can require its employees to pay their “fair share” of union costs (often the equivalent of union dues) associated with collective bargaining and representation. According to the majority decision, the Supreme Court got it wrong forty years ago in Abood v. Detroit Board of Education, 431 U. S. 209 (1977) where it embraced agency fees for public sector unions. While the Court did not overturn Abood (because it did not need to do so in this case), the Court’s analysis signals the eventual demise of Abood and an end to compulsory agency fees in the public sector. This otherwise limited decision will produce a flurry of litigation as anti-union forces fashion the perfect case to finally undo Abood.