Critical Loss for Unions|in Supreme Court

WASHINGTON (CN) - Illinois cannot force providers of Medicaid-subsidized rehabilitation services to pay costs for a union they opted not to join, the Supreme Court ruled Monday.

Supreme Court precedent already allows unions to collect fees from nonmembers, but personal assistants who work for Illinois agencies argued in the present case that they are actually employees of their patients, not the state.

A majority of the approximately 20,000 personal assistants who work for the Division of Rehabilitation Services had voted to designate SEIU Healthcare Illinois & Indiana as their representative in 2003. Six years later, a majority of the 4,500 personal assistants working for the Division of Developmental Disabilities rejected such representation.

Even though disabilities assistants do not currently pay for any representation, members of both groups filed suit. The lead plaintiff in the class action is Pamela Harris.

They claimed that requiring all assistants to pay "fair share" fees violates the First Amendment by compelling their association with, and speech through, the union.

A three-judge panel of the 7th Circuit disagreed in 2011, affirming dismissal of the case by citing the 1977 Supreme Court decision Abood v. Detroit Board of Education.

In reversing 5-4 Monday, however, the Supreme Court declined to extend Abood in this manner.

The decision notes various ways in which Illinois denies personal assistants rights and benefits that are otherwise available to "full-fledged state employees."

In addition to excluding personal assistants from statutory retirement and health insurance benefits, Illinois also excludes personal assistants from group life insurance and "a host of benefits under a variety of other state laws, including the State Employee Vacation Time Act; the State Employee Health Savings Account Law; the State Employee Job Sharing Act; the State Employee Indemnification Act; and the Sick Leave Bank Act."

"Personal assistants are apparently not entitled to the protection that the Illinois Whistleblower Act provides for full-fledged state employees," Justice Samuel Alito wrote for the court.

"A deferred compensation program, full worker's compensation privileges, behavioral health programs" and other benefits likewise fall "within the provision of the Rehabilitation Program declaring that personal assistants are not state employees for 'any purposes' other than collective bargaining," Alito added.

The 39-page opinion slams the U.S. solicitor general for contending in an amicus brief for Illinois "that union speech that is germane to collective bargaining does not address matters of public concern and, as a result, is not protected."

"This argument flies in the face of reality," Alito wrote. "In this case, for example, the category of union speech that is germane to collective bargaining unquestionably includes speech in favor of increased wages and benefits for personal assistants. Increased wages and benefits for personal assistants would almost certainly mean increased expenditures under the Medicaid program, and it is impossible to argue that the level of Medicaid funding (or, for that matter, state spending for employee benefits in general) is not a matter of great public concern."

If the court were to affirm, it "would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support. The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union."

Though it reversed as to that issue, the Supreme Court affirmed the 7th Circuit's finding "that the First Amendment claims of the petitioners who work [in] ... the 'Disabilities Program, are not ripe."

Justice Elena Kagan wrote the dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, which says Abood does apply.

"Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment,' Kagan wrote. "That is exactly what Illinois did in entering into collective bargaining agree­ments with the Service Employees International UnionHealthcare (SEIU) which included fair-share provisions. Contrary to the court's decision, those agreements fall squarely within Abood's holding. Here, Illinois employs, jointly with individuals suffering from disabilities, the in­home care providers whom the SEIU represents. Illinois establishes, following negotiations with the union, the most important terms of their employment, including wages, benefits, and basic qualifications. And Illinois's interests in imposing fair-share fees apply no less to those caregivers than to other state workers. The petitioners' challenge should therefore fail."

Kagan also bristled at the Alito's remark that Abood is "something of anomaly."

"Rather, the lines it draws and the balance it strikes reflect the way courts generally evaluate claims that a condition of public employment violates the First Amendment," she wrote. "Our decisions have long afforded government entities broad latitude to manage their workforces, even when that affects speech they could not regulate in other contexts. Abood is of a piece with all those decisions: While protect­ing an employee's most significant expression, that deci­sion also enables the government to advance its interests in operating effectively-by bargaining, if it so chooses, with a single employee representative and preventing free riding on that union's efforts."

Kagan did note relief in the failure by the petitioners to overrule Abood.

"The Abood rule is deeply entrenched, and is the foun­dation for not tens or hundreds, but thousands of contracts between unions and governments across the nation," she wrote. "Our precedent about precedent, fairly understood and applied, makes it impossible for this court to reverse that decision."

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