by Catherine Fisk, Chancellor’s Professor of Law, University of California Irvine School of Law
As I have argued elsewhere, in striking down an Illinois law authorizing the state to require unionized home care workers to pay their fair share of the cost of union representation, the Supreme Court in Harris v. Quinn disregarded its longstanding rule that it does not decide questions of state law and failed to reconcile the result with the First Amendment rights of government workers or the Court’s other cases on when compulsory fees constitute compelled speech.
First, under Illinois law, government-paid and government-regulated home health-care workers are state employees. Justice Alito’s majority opinion in Harris disregarded state law when it invented a vague new category of non-“full-fledged” government employees who have greater First Amendment rights than other workers to refuse to pay the costs of union representation.
Second, if under Garcetti v. Ceballos, and United States Civil Service Commission v. National Association of Letter Carriers, government employees have no First Amendment rights to speak on the job on matters of public concern or to engage in political activity on their own time, why do some government employees have a First Amendment right to refuse to pay for services that their union is legally required to provide them?
Third, the Court failed to explain why fair share fees differ from compulsory payment of lawyers’ bar dues, which the Court approved in Keller v. California State Bar. To quote Keller, substituting only “home care workers” for “legal profession,” Illinois has an “interest in regulating [home health-care workers] and improving the quality of [home health-care] services.”
Yet there is a way forward. As I argue with Ben Sachs, where unions are unable to require objecting workers to pay fees – whether it’s in right-to-work states or in work situations that fall under Harris v. Quinn – we should get rid of the rule of exclusive representation. Non-fee payers wouldn’t be subject to the terms of the collective bargaining agreement, they wouldn’t have to interact with their employer through a collective agent, and they wouldn’t be required to pay anything to a union they didn’t vote for. Unions, for their part, would be required to represent only those workers who actually want representation. Another possibility is that governments wishing to bargain with a single representative on behalf of their workers could agree to pay the cost of the representational services on behalf of all workers. No worker would then be compelled to pay anything to a union and the dissenting workers’ First Amendment rights would not be violated.