PI Original Ellyn Fortino Tuesday June 3rd, 2014, 5:49pm

Pending SCOTUS Case Could Significantly Affect Public Employee Unions

The U.S. Supreme Court is expected to issue a ruling sometime this month on a case that could potentially deal a hard blow to public employee unions nationwide. Progress Illinois takes a look at the possible implications of the Harris v. Quinn case.

The U.S. Supreme Court is expected to issue a ruling sometime this month on a case that could potentially deal a hard blow to public employee unions nationwide.

Although the Harris v. Quinn case centers around home-based health care aides in Illinois, its outcome could have big ramifications for public worker unions beyond both the state and the home-care service industry.

The Harris v. Quinn case was brought by the National Right to Work Legal Defense Foundation against the state of Illinois, SEIU* Healthcare Illinois and Indiana, SEIU Local 73 and AFSCME Council 31 on behalf of a small group of home health care aides who are paid with state funds to provide assistance to disabled individuals.

The plaintiffs in the case did not want to join a union and sued the state of Illinois, arguing that requiring them to pay union "fair share" fees as a stipulation of their employment violates their First Amendment rights.

Pamela Harris, a home health care worker in Illinois who provides in-home assistance to her 25 year-old son with disabilities, is the lead plaintiff in the case.

"I don't want our home to be a union workplace," Harris said in an interview with Fox News' Greta Van Susteren last month. "I don't want a union contract between my son and I."

SEIU Healthcare Illinois and Indiana union member Lanette Newman, a home health care worker in south suburban Riverdale of 13 years, also provides in-home care for her son with disabilities. But unlike Harris, Newman, 51, supports being in a union because, "They fight for better wages, better jobs and the quality of care that we give our consumers."

"It's the consumers that receive this [high-quality care], and need this. We provide that quality service to them," Newman said.

Lead plaintiff Harris is represented by the National Right to Work Legal Defense Foundation, whose "mission is to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs."

The group gets its funding in part from the Donors Trust and its associated organization Donors Capital Fund, which have ties to Charles and David Koch and have been called "the dark-money ATM of the conservative movement."

Michael Zimmer, professor of law at Loyola University Chicago's School of Law, said Harris is "one of a continuing effort by the far right, the Koch brothers, to undermine unions — what they've done successfully in the private sector — but now they've turned their attention to the public sector."

"They're trying to weaken unions to destroy their political power because the union movement is a big supporter of Democrats," Zimmer added. "There's been a long-time effort on the far right to attack unions wherever they exist, and this is just another example of that."

Emily Twarog, assistant professor at the University of Illinois at Urbana-Champaign’s School of Labor and Employment Relations, noted it would be very unlikely for the Democrat-controlled Illinois General Assembly to enact state "right to work" laws. Such measures generally look to ban unions and companies from agreeing to contracts that require employees to join unions when they take a job covered by a collective bargaining agreement.

Harris, Twarog saidis essentially an attempt by right to work supporters to get around legislative roadblocks so these controversial measures can get "moving in Illinois."

"If the Supreme Court rules on the side of right to work, it challenges every public sector union in the country, which would be essentially a national battle against right to work among public sector workers," Twarog said, adding that such a fight "would be a huge battle."

The issues raised in the Harris v. Quinn case can be traced back to 2003. That's when former Illinois Gov. Rod Blagojevich issued an executive order that designated some 20,000 home health care workers in the state as public employees. The workers classified as public employees are with the state's Medicaid-funded Home Services Program, which provides in-home assistance to individuals with severe disabilities. Later that year, a majority of the program's home health care aides voted to designate SEIU Healthcare Illinois and Indiana as their exclusive collective bargaining representative.

Home health care workers are not required to join the union. However, those who do not join have to pay "fair share" fees towards the union costs of collective bargaining and working out the contract terms. The Supreme Court has upheld "fair share" fees in the past.

"It seems to me that what the Harris case is addressing is this issue of free speech, but fair share ... addresses that issue," argued Twarog. "The only amount you're paying [for fair share union fees] is the calculated amount that goes towards the administration of the contract, therefore you are not paying anything that goes towards political action."

In 2009, Illinois Gov. Pat Quinn issued an executive order similar to Blagojevich's that covered some 4,500 additional personal assistants with the state's Home Based Support Services Program, which provides in-home care for disabled adults. Quinn's order authorized the state to bargain with an exclusive union representative elected by the Home Based Support Services Program providers. The workers, however, ultimately voted against union representation.

The Harris v. Quinn class action lawsuit was filed in 2010 following Quinn's 2009 executive order. The case was dismissed by both the district court as well as the U.S. Court of Appeals for the 7th Circuit. The Supreme Court agreed to hear the case in October 2013, and oral arguments took place this January.

Mark Mix, president of the National Right to Work Legal Defense Foundation, issued this statement on January 21, when the court began oral arguments:

This scheme, which forces small business owners and even parents and grandparents taking care of children into union political association is a slap in the face of fundamental American principles we hold dear. The government does not have the power to force citizens to accept its handpicked political representation to lobby itself.

Forcing homecare providers into union ranks just for the sake of lobbying is not only unconstitutional, but immoral. We hope the Court will agree and protect the rights of Pam Harris and tens of thousands of other care providers by striking down this constitutionally-dubious scheme.

In response to Mix's comments, SEIU Healthcare Illinois spokesman James Muhammad noted that "thousands of workers who are in the union feel that what the union does for them and their families is beneficial."

"There is a definite attack on working people, and it has also led to the diminishment of the middle-class in this country," Muhammad added. "We feel that unions work for the benefit of working families to raise the standards of their lives, and we think that is a worthy cause. The middle-class and working families are the backbone of this country. If we can keep working families strong, we can keep our entire country strong, and we will continue to fight on behalf of working families, that their standard of living is a good standard of living." 

In-home health care provider Newman noted that some 30 years ago, home health care aides in the state did not qualify for minimum wage and earned only about $1 an hour for some services. Union representation has meant bumps in the hourly wages of those workers, which have gone up from $7 in 2003 (when the state entered into its first contract with SEIU) to the current level of $11.65. By the end of this year, wages for in-home health care workers will reach $13, Newman said. (Currently, the hourly minimum wage in the state is $8.25).

"That may not seem like much to a lot of people, but to people like me, it helped me save my home," Newman said of her pay increase. "It helped me maintain my family as far as providing the things that we really need, and that's what this union, and being unionized, means to me. I stand with over 28,000 other co-workers that feel that same way."

In addition to wage increases, Newman said union representation has led to additional benefits such as health insurance coverage and annual training for in-home health care workers, to name a few.

The Harris v. Quinn case raises two key questions the court has to address, including whether the home-based health care providers were correctly designated as state employees. The second is whether in-home health care workers who have not joined the union have to pay "fair share" union fees.

Zimmer said the case boils down to a critical point — whether the Supreme Court will overrule its decision in the Abood v. Detroit Board of Education case from 1977, which allowed unions to require those they represent, but who are non-union members, to pay "fair share" costs.

If the Supreme Court overturns its previous decision, that would essentially mean, "If you were represented by a union, but you didn't want to be a union member, you wouldn't have to pay anything to the union for whatever they did for you," Zimmer said.

And if that is allowed, "The union's income would go down substantially, depending on what percentage of workers failed to support a union," he said.

The potential implications of such a decision would be very broad, Zimmer said, and could also carry over to employment situations in the private sector.

When asked how he thinks the Harris v. Quinn case will shake out, Zimmer noted that "the present majority of the Supreme Court thinks that money is speech, and therefore it's possible they'll vote that, just as you can't stop individuals and corporations and unions from spending money on elections, you can't require workers to pay for the representation that unions provide them."

U.S. Supreme Court Justice Anthony Kennedy could possibly be a swing vote in determining this case, Zimmer predicts. 

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. are conservative leaning. And Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor are more liberal. Zimmer said Kennedy "mostly aligns with the far right, but not always." As such, Kennedy could "come up with some middle ground, which he has done in a number of different areas, but it's always very hard to predict how he would do that."

Newman, the home health care worker, said she is concerned about the outcome of the case. But whatever the decision is, it "won't dampen what we set out to do."

"If the decision goes against us, we will keep fighting to organize workers the best way we can so that home care workers can still ensure quality care for seniors and people with disabilities," Newman said. "If the decision goes in our favor, we know that this is a victory for all the low-wage home care workers, but (we will) still continue to fight" for the home care workforce.

*The SEIU Illinois Council sponsors this website.

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