Last Monday, the Supreme Court ruled that home health-care attendants in Illinois do not have the right to form a union, or at least that any such union has no right to charge representation fees (or agency fees) from non-members. While the case gave the court the opportunity to overturn a 1977 decision that allowed agency fees for public-employee unions, the opinion left most public-employee union rights intact. Given the conservative lean of the court, this was probably the best that unions could expect, and it will take some time to sort through the consequences.
The case that the court decided was not clear-cut, because the people suing the state of Illinois were not typical public employees: they were home-care attendants where the “hiring authority” was the Medicaid recipient who benefited from the services. In the end, the majority of justices decided that the home-care attendants were not really public employees for the purposes of union laws, and so they were outside the scope of Illinois’ laws on non-member “agency” fees to unions. (In many states, including Illinois, you do not have to join a union, but you still have to pay reasonable costs of representation if you are not a member. For the 18 years I lived in Florida and was a union member, there were no agency fees; my dues and the dues of other members were the entire source of revenue for my union and its state affiliate.)
Because the majority of justices could rule that the plaintiffs were not “fully” public employees, they did not have to address a 1977 decision that allowed agency fees for public-employee unions, and they chose not to do so. As the Fordham Institute blog noted Monday, this may be an invitation to further attacks on public-employee unions. The head lawyer for the American Association of University Professors thinks that faculty union rights were not affected by this decision, for any type of faculty member (including adjuncts). Both interpretations assume too much about a narrow ruling like this.
Practically, this case makes it harder for public-employee unions to expand the groups they organize. Home-care attendants had been on the frontier of recent organizing, and the first consequence of the decision is that it essentially makes all such employees like public workers in “right-to-work” states, no matter what state they live in. That doesn’t make union organizing impossible, at least not by a narrow reading of the decision, because there are public-employee unions in right-to-work states, like Florida. But it makes it much tougher, and in areas of employment where workers are more likely to be women and members of racial and ethnic minorities.
There are two key uncertainties that linger with this week’s decision. One is the boundary of the “partial public employee” category. Who might it cover in addition to Medicaid-paid home-care attendants? The decision focused on the facts of the attendants’ employment (including the hiring process), but the fuzziness of the category might be expanded by lower courts to include those who are hired by public agencies but are not clearly thought of as full-time employees. These include adjuncts and graduate-student employees, and these are the frontiers of organizing in higher education.
The second uncertainty is the consequence of being a partial public employee for union rights more generally. This case covered the question of agency fees. Does the court’s reasoning cover other issues or the right to organize at all? Again, lower courts will have to answer these questions if they’re raised in specific cases. For the past few years, the primary targets of anti-union forces have been resources and bargaining rights, with Wisconsin being the state with the biggest recent victory for anti-unionists. At the moment, the decision this week is smaller, though the potential for the court to undermine union rights exists for the future. There is plenty of money behind anti-unionists, and this court case required relatively little of those resources.
What distinguishes “dues” from “agency fees”? Aren’t these the same as membership dues? Aren’t “reasonable costs of representation” the same thing?
Glen,
In a number of northern and western states, you do not have to join a union, but if you don’t, you often pay the cost of the union representing non-members. This is commonly a figure close enough to dues (say, 70%) that those who are pro-union by temperament decide to become members. Agency fees are not dues and do not give the non-member any voting and participation privileges the way full dues-paying members have.
In Florida, public-employee unions cannot charge agency fees. That means that every cent comes from those that they persuade to become full dues-paying members. In Florida and other states without agency fees, non-members create a free-loader problem, because they benefit from bargaining that the union performs on the employees’ behalf without having to contribute. These differences are very deep in the weeds, and it can be tough to explain some of them. For example, in Florida, the Public Employee Relations Committee has made it clear that Florida public-employee unions do not represent non-members in the grievance process because they do not pay for representation.
Yes, I can see the free-rider problem here. Thanks.
One more question: do “right to work” state laws affect these different situations?