Public Employees, Unions and the First Amendment

December 11, 2013
Guest Post

by Charlotte Garden, an Assistant Professor at Seattle University School of Law, where she is co-advisor to the student ACS chapter.

The past few Terms have been tumultuous for First Amendment doctrine, and this Term is shaping up to be another First Amendment blockbuster, with cases like Hobby Lobby Stores, Inc. v. Sebelius and McCutcheon v. FEC on deck. But for labor unions, another First Amendment case has potential to be the biggest game changer: In January, the Court will hear argument in Harris v. Quinn, a First Amendment case about union representation in the public sector. At stake are two important questions:  first, the extent to which states can allow homecare workers who are paid by the state to be represented by a union; and second, whether public employees have a constitutional right to refuse to pay for the costs of union representation. Thus, while Harris involves an Illinois statute that allows homecare workers to bargain collectively, it has the potential to affect the structure of public sector bargaining throughout the country. 

Illinois is deeply vested in improving working conditions for homecare providers – not only do better wages and working conditions mean more stability in the profession (which is good for consumers), but the state also administers many of the programs that fund homecare workers. Under these programs, while consumers or their guardians choose their own homecare workers and direct their day-to-day work, Illinois determines the number of hours they can work, defines minimal standards, creates training opportunities, and sets the workers’ wages and issues their paychecks, among other job parameters. This division of responsibility between state and consumer sets the stage for Illinois’s decision to allow homecare workers to form a union, and is a primary reason for the legal challenge in Harris.

Specifically, elected officials made the proprietary decision that homecare workers – a group that defies the traditional hallmarks of a centralized workforce – are entitled to the same right as myriad other workers: the right to choose whether to form a union. The scope of that right, however, is carefully circumscribed by statute. The majority-approved union may bargain only with the state (not with consumers), and only over the economic conditions that the state controls, such as wages, benefits, training, and certain other working conditions.  

Accordingly, a group of Illinois homecare workers (those working under the auspices of the “Rehabilitation Program”) voted in favor of representation by the SEIU; another group of homecare workers voted against union representation. After bargaining began, the union got results for the Rehabilitation Program homecare workers, winning a series of raises (from $7.00/hour in 2003 to $11.55/hour now) and other benefits. The resulting collective bargaining agreement also contains an “agency shop” provision, which requires all Rehabilitation Program workers to pay for their share of the costs of union representation during bargaining and the life of the contract.  (Represented workers are not required to pay for other costs, such as the union’s political advocacy.)

The petitioners in Harris challenge the constitutionality of the Illinois statute and resulting CBA, making two primary arguments. The more narrow argument is that homecare workers are not really employees of the state, meaning that the SEIU was not “bargaining” on behalf of state employees, but rather was “petitioning” on behalf of citizens. Consequently, petitioners continue, two aspects of the representation violate the workers’ First Amendment rights not to petition, associate, and speak:  first, the exclusive representation system, under which an elected union represents all workers in a bargaining unit, whether or not they voted for representation; and second, the agency shop. This argument was rejected by the Seventh Circuit, which rightly concluded that the state was a joint employer of the homecare workers, placing the union on the “bargaining,” and not the “petitioning” side of the line. The Seventh Circuit then proceeded to apply decades-old law about the constitutionality of bargaining in the public sector to uphold the Illinois statute and resulting collective bargaining agreement.

Petitioners’ second argument is much more radical: it challenges the constitutionality of the exclusive representation system and the agency shop in the public sector generally, arguing that both require unjustified political speech and association.  If successful, this argument would reverse a line of cases dating back to the late 1940’s that have struck a careful First Amendment balance, allowing for exclusive representation and the agency shop, while protecting workers from having to contribute to union political speech.  

The key case in this area is Abood v. Detroit Bd. of Educ. Abood recognized that public employers have a stability-related interest in dealing with a single representative of all of the workers in a bargaining unit. Therefore, Abood held that they (like their private-sector counterparts under the NLRA) can require exclusive representation as a condition of bargaining.  In other words, if 51 percent of employees want a union, the union will represent all of the workers in the unit; if 51 percent reject the union, then no workers will be represented. Thus, public employers can allow employees to choose union representation while avoiding the prospect of managing relationships with multiple unions, or with some union and some non-union employees.

The converse of exclusive representation is that unions must treat all the workers in a bargaining unit fairly, whether or not they join or support the union. And, this can be expensive, especially in the beginning stages of representation. Moreover, allowing employees to opt out of financially supporting the union would create a likelihood that employees would decide to free ride on their fellow employees – not because of any objection to union representation, but simply because it is rational not to pay for services when one has that option.  Abood recognized that this could severely undermine the “labor peace” and stability that states seek to encourage through exclusive representation.  Thus, Abood weighed the First Amendment interests at stake in public sector union representation, and struck a balance by allowing unions and public employees to agree to the agency shop, in which each employee is requires to pay his or her share of certain costs of union representation, but not other union activity, like lobbying or political campaigning. 

There are about 1.8 million paid homecare workers in the U.S., and this number will grow as Americans age. These workers provide vital services for the elderly and disabled, helping them remain in their homes instead of moving into institutions. Yet homecare workers are themselves vulnerable – they generally work alone, with little control over their work environment, often for low pay and without basic benefits like health insurance. Harris will determine whether states will continue to be free to decide to provide an opportunity for these workers – and possibly all public sector workers – to vote for a model of union representation that has worked in the public sector for decades.