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Supreme Court Curbs Public-Sector Union Power; Sides with Non-Joining Home Care Workers

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Public-sector unions largely owe their growth to their authority to force non-joining workers to put money in their coffers. The Supreme Court believes this authority needs some restraint. By a 5-4 margin, the Court ruled on Monday, June 30, in Harris v. Quinn that nonunion private-sector home health workers cannot be required to support a public employee union even if their wages come from state Medicaid funds. The class-action suit originated in 2010 when several home care workers sued the State of Illinois and two unions, challenging two executive orders issued, respectively, in 2003 and 2009 classifying thousands of these service providers as state employees. The order, wrote Justice Samuel Alito, violated worker freedom of speech. At the same time, the ruling did not overturn the 1977 decision that justified the public-sector union shop and applied it to non-members.

Union Corruption Update discussed this case at length last November. The previous month the Supreme Court had agreed to hear an appeal by a group of eight private home care providers in Illinois. The lead plaintiff was Pamela Harris, a Chicago-area housewife and primary caregiver for her developmentally disabled young adult son, Josh Harris. She had taken action when she realized that a sizable portion of her monthly stipend very likely could wind up with the Service Employees International Union (SEIU) under the guise of “fair share” payments. About a half-year ago, she explained: “One penny, one dollar taken out of [the stipend] is taken out of support or services for Josh. Being in a union is incompatible, intrusive, and going to interfere with the care I provide. The union is there to protect the union worker, so I don’t see how Josh benefits.”

There were a great many caregivers who had found themselves in a similar situation. These service providers had been reclassified as state employees because they were paid, in part or in full, out of an Illinois state-funded Medicaid program of the sort that many states operate. Eligible service providers include parents/guardians and independent contractors. It ought to be intuitive that being compensated by government is not the same thing as being employed by government. But organized labor, especially the Service Employees, believed the two are effectively the same. Thanks to the State of Illinois, the SEIU gained a material interest in such a classification.

Back in March 2003, Illinois Democratic Governor Rod Blagojevich issued an executive order designating the Service Employees International Union as the exclusive bargaining agent of personal home care providers under a Medicaid-funded state program. The move was a political gift. The SEIU had contributed about $800,000 to his successful run for governor the previous year. At a February 2003 victory rally, SEIU state coordinator Tom Balanoff, a close friend of Blagojevich, declared: “We couldn’t have a better ally supporting us. We elected a person who is going to be with us through thick and thin.” The Illinois legislature codified the executive order that July, designating private-sector home care providers as “public employees” explicitly for union membership purposes. Some 20,000 persons potentially stood to be covered by a union contract. The State of Illinois and Service Employees Local 880 wasted little time in signing an agreement mandating that the State’s deduct dues from provider wages and salaries into the coffers of the Chicago-based union. This scheme would take $750 per year in fees from each non-member worker. Seen another way, the union now generates an extra $10 million annually, a portion of which no doubt goes toward re-electing political supporters.

SEIU Local 880 was a natural choice for this sweetheart deal. The union has been a central player in Chicago-area Leftist activism since its beginnings in the mid-1980s as a project of the Association of Community Organizations for Reform Now (ACORN). Through aggressive organizing and political networking, the union now represents about 93,000 workers. But 37,000 of them – more than a third – are “agency fee payers.” That is, though covered by union contract, they are not actual members. To the union, these workers are “free riders” unless they pay agency fees. Starting several years ago, Local 880 began operating under the name of SEIU Healthcare Illinois Indiana. The name may be different, but the mission and the style remain the same.

Gov. Blagojevich’s penchant for overplaying his political hand, of course, would come back to bite him. As Union Corruption Update has described in detail, he was arrested in December 2008 on a number of corruption charges following a lengthy federal probe. Most important among them were those relating to his attempt to sell the U.S. Senate seat vacated by President-Elect Barack Obama to the highest bidder in return for re-election campaign cash. The Illinois legislature voted to remove him from office in January 2009. Federal prosecutors eventually would file two dozen criminal charges. “Blago” chose to take the case to trial. The first trial resulted in a hung jury on virtually all charges. The prosecution, determined to get their man, secured a second trial. This time got the desired result. In June 2011 a jury convicted ex-Gov. Blagojevich on 17 of 20 charges, including all 11 related to his solicitation of bribes for the vacant Senate seat. He is now doing a 14-year stretch in Denver federal prison.

Blagojevich’s successor, Patrick Quinn, a Democrat who had served as lieutenant government under Blagojevich, was cut from the same cloth. Indeed, by this past spring he had received nearly $5 million in SEIU contributions during his political career. Back in June 2009, only in office for several months, Gov. Quinn issued Executive Order 15, reclassifying about 4,500 home care providers as “state employees” because they received income from a Medicaid program. This program was separate from the one for which Blagojevich had issued his order, but the rationale was the same. SEIU Local 713 petitioned the National Labor Relations Board to hold an election to represent the workers. AFSCME District Council 31 intervened as a rival for representation. But the balloting, conducted in October 2009, didn’t go as planned for either union. By a wide margin, the affected workers voted to reject representation by either entity.

The issue did not rest. More to the point, it was set up not to rest. Under Quinn’s executive order, the unions retained the authority to request elections or conduct card checks to win representation. Caregivers could face nonstop union drives until they capitulated. Understanding the threat to their liberty, Mrs. Harris and seven other home care providers on April 22, 2010 filed suit in U.S. District Court for the Northern District of Illinois against the State of Illinois, the SEIU and AFSCME. The intent was to invalidate the Blagojevich and Quinn executive orders. Aided by the Springfield, Va.-based National Right to Work Legal Defense Foundation, the workers alleged that routing a portion of their paychecks to a union would violate their freedom of speech. The union position represented coercion taken to a new level. Even Abood v. Detroit Board of Education, the Supreme Court decision of 1977 that established the constitutionality of the public-sector union shop and its application to non-members for core representation functions, did not attempt to justify conversion of private employees to public-employee status.

The executive order proved resistant to challenge. Following an attempt by the defendants to dismiss, the court reassigned the case to U.S. District Judge Sharon Johnson Coleman, an Obama appointee. In November 2010, Judge Coleman dismissed the case on its merits. She reasoned that the rationale for public-sector monopoly bargaining contained in Abood extended to nonmember workers paid out of state funds. The plaintiffs filed an appeal the following month. They met with further frustration. In September 2011, a three-judge panel with the U.S. Court of Appeals for the Seventh Circuit upheld the lower court. The decision read: “The plaintiffs feel burdened fighting to prevent what they view as an unconstitutional collective bargaining agreement. But many individuals and organizations spend considerable resources fighting to prevent Congress or the state legislatures from adopting legislation that violate the Constitution. The courts cannot judge a hypothetical future violation in this case any more than they can judge the validity of a not-yet-enacted law, no matter how likely its passage.”

Harris and the other dissenters weren’t about to give up. In November 2011 they filed an appeal with the U.S. Supreme Court. Getting an audience, however, was a tough act. The defendants didn’t want to risk losing what they had won. The State of Illinois initially waived its right to respond, but on February 29, 2012 the Supreme Court ordered the State to file a response. The State complied in April. The Obama administration wasn’t eager for this case to happen either. The Court in June 2012 invited the Solicitor General of the Justice Department to file a brief. After a long wait, the Solicitor General filed a brief in May 2013, arguing against review. The case was listed for conference at least four more times during the 2012-13 term, each time to no avail. The Supreme Court adjourned without issuing an order.

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