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Duncan Quoted in Employment Law Daily Article on Supreme Court Case

7/1/2014

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Adams and Reese Partner and labor and employment attorney Brooke Duncan was quoted in an Employment Law Daily article, “U.S.: ‘Quasi’ Public Employees Can’t Be Forced to Pay Agency Fees to Union, Supreme Court Holds.” The Employment Law Daily is published online by Wolters Kluwer, and the article ran in the June 30 edition.

The Supreme Court ruled that Medicaid-funded home care providers cannot be required, under the First Amendment, to pay agency fees to a union pursuant to a collective bargaining agreement negotiated with the State of Illinois. However, the decision applies only to a category of ostensibly public workers who aren’t “full-fledged” state employees, and to which the High Court’s 1977 holding in Abood v. Detroit Bd. of Ed. therefore does not apply.

The “questionable foundations” of that precedent, which held that state employees may be compelled to pay agency fees to public-sector unions, were critiqued at length in a majority opinion authored by Justice Samuel Alito. Nonetheless, the Abood ruling survives another day, allowing public-sector unions to breathe a sigh of relief, having averted what could have been a knock-out punch (Harris v Quinn, June 30, 2014, Alito, S).

However, the Supreme Court affirmed the Seventh Circuit’s holding that the First Amendment claims of home care providers in a different, but related program were not ripe, as those employees had not yet unionized. The Court rejected the petitioners’ contention that, given the governor’s executive order allowing for collective bargaining, unionization — along with the attendant compulsory fee payments — was imminent.

“It seems the Supreme Court ruled as it did because it simply could not stomach the idea that, in view of the First Amendment, either the state or the SEIU was providing much value for the fees the employees at issue were being forced to pay,” said Duncan, an ELD Editorial Advisory Board member. Duncan was particularly struck by the majority’s statement, “The agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join. No such showing has been made.”

Another sentence that stood out, in Duncan’s view, was Alito’s conclusion: “If we accepted Illinois’ argument, we 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.”

“It may be that in actuality the decision will have limited impact, given the narrow factual circumstances of the case,” Duncan suggested. “Nonetheless, the sentiment emanating from the majority opinion could not be more clear — you can’t force people to pay to support an organization that not only did they not choose to join but which doesn’t do much for them either, at least not in the public sector. From that perspective, all public-sector unions should be worried that their utility may be limited unless they have real power to advocate and bargain on behalf of the employees they claim to represent.