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Wednesday, July 02, 2014

The First Amendment prohibits a State’s collecting an agency shop fee from an individual on behalf of an employee organization that the individual does not wish to join or support


The First Amendment prohibits a State’s collecting an agency shop fee from an individual on behalf of an employee organization that the individual does not wish to join or support
Harris v Quinn, USSC #11-681, decided June 30, 2014

The U.S. Supreme Court held that the First Amendment prohibits the collection of an agency shop fee that is used subsidize speech on matters of public concern by an employee organization that the employee does not wish to join or support.

Illinois' Home Services Program allows Medicaid recipients who would normally need institutional care to hire a "personal assistant" (PA)* to provide home-care services. Although the recipient or his or her representative [Customer] exercise predominant control over the employment relationship with the PA, Illinois, subsidized by the federal Medicaid program, pays the PA’s salary.

The Supreme Court’s decision sets out the following events leading to this litigation:

[1] The Illinois State Labor Relations Board, in 1985, stated that “[t]here is no typical employment arrangement here, public or otherwise; rather, there simply exists an arrangement whereby the State of Illinois pays [RAs] . . . to work under the direction and control of private third parties."

[2] The Board, responding to a petition submitted by Service Employees International Union (SEIU) seeking to represent PAs, held that “it is clear . . . that [Illinois] does not exercise the type of control over the petitioned-for employees necessary to be considered in the collective bargaining context envisioned by  [Section 6 of the Illinois Public Labor Relations Act], their 'employer' or, at least, their sole employer."

[3] In 2003 then Governor Rod Blagojevich “circumvented” the Board’s rulings when he issued an Executive Order, which Order was later codified by the Legislature,** solely, in the words of the court, to permit PAs to join a labor union and engage in collective bargaining under Illinois' Public Labor Relations Act (PLRA).

Also, noted the Supreme Court, employee organizations had entered into collective-bargaining agreements with the State that contain an agency-fee provision. This provision requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process.

The Supreme Court distinguished PAs from “State employees” as follows:

In the case of full-fledged public employees, the State establishes all of the duties imposed on each employee, as well as all of the qualifications needed for each position, vets applicants and chooses the employees to be hired, provides or arranges for whatever training is needed, and it supervises and evaluates the employees' job performance and imposes corrective measures if appropriate. 

In contrast, said the court, insofar as the PAs involved in this case are concerned, their job duties as personal assistants are specified in their individualized Service Plans, which plans must be approved by the Customer and the Customer's physician and “Customers have complete discretion to hire any personal assistant who meets the meager basic qualifications that the State prescribes” and the Customer "is responsible for controlling all aspects of the employment relationship between the Customer and PA without limitation. Further, noted the Supreme Court,  PAs  “also appear to be ineligible for a host of benefits under a variety of other state laws” that are available to employees of the State as the employer.

As to the relationship of the PA’s to the employee organization is concerned, the court said that where the employee organization is recognized or certified as the exclusive representative for Rehabilitation Program employees for the purposes of collective bargaining, the First Amendment prohibits the collection of an agency fee from Rehabilitation Program PAs who do not wish to [1] join or [2] support the employee organization because the First Amendment does not permit a State to compel personal care providers to subsidize speech on matters of public concern by an employee organization that they do not wish to join or support. In particular, the court said “[The PAs bring this action do not “challenge the authority of the SEIU-HII to serve as the exclusive representative of all the personal assistants in bargaining with the State. All they seek is the right not to be forced to contribute to the union, with which they broadly disagree.”

The bottom line: The Supreme Court said “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. 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.”

Insofar as “speech” is concerned, this decision would not appear to impact on the State as the employer or political subdivisions of the State as the employer of individuals in the Classified Service or the Unclassified Service in contrast to the type of "employer-employee relationship" between Illinois’ PAs and the State of Illinois.

New York State's Civil Service Law  §208.3(a), with respect to the State as the employer, and §208.3(b), with respect to political subdivisions of the State as the employer, provide that an employee organization that is the exclusive representative of employees for the purposes of the Article 14 of the Civil Service Law, the Taylor Law, shall be entitled to have   deducted from the wage or salary of the employees in such negotiating   units who are not  members  of  said  employee  organization  the  amount   equivalent  to  the  dues  levied by such employee organization, and the   state comptroller shall make such deductions and  transmit  the  sum  so   deducted  to  such  employee  organization proved that the employee organization has established and maintained  a   procedure  providing for the refund to any employee demanding the return   any part of an agency shop fee deduction which represents the employee's   pro rata share of expenditures by the organization in aid of  activities   or causes of a political or ideological nature only incidentally related   to terms and conditions of employment. As to the “joining an employee organization” aspect of the Supreme Court’s ruling addressing “freedom of association,” the Taylor Law provides that an employee is not required to become a member of the employee organization and those electing not to become a member of the employee organization pays an agency shop fee in lieu of dues, typically a lesser amount.

*Illinois law establishes an employer-employee relationship between the person receiving the care and the person providing it, providing that that the person receiving home care--the "customer"--"shall be the employer of the [personal assistant]." 89 Ill. Admin. Code §676.30(b). The decision notes that “Many of these personal assistants are relatives of the person receiving care, and some of them provide care in their own homes.”

** Ill. Comp. Stat., Chapter 20, §2405/3(f ), declaring personal assistants to be "public employees" of the State of Illinois--but "[s]olely for the purposes of coverage under the Illinois Public Labor Relations Act."
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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