Is Harris v. Quinn Decision Preview of Abood Challenge?
The U.S. Supreme Court’s decision in Harris v. Quinn puts a brake on an ongoing effort by organize labor to expand the definition of “public employee” to just about anyone who receives any form of government assistance, such as home care workers paid by Medicaid (a phenomenon I pointed out in a 2009 Cato Institute study on public sector unions; see page 9).
However, the Court did not address the issue of whether government employees may be required to pay union dues in the first place. Workers who aren’t union members but work under a collective bargaining agreement can be required to pay “agency fees,” which are essentially dues in all but name.
That would have required revisiting the Court’s 1977 decision, Abood v. Detroit Board of Education, which upheld a Michigan law, “whereby every employee represented by a union even though not a union member must pay to the union, as a condition of employment, a service fee equal in amount to union dues.” Yet, Justice Samuel Alito, writing for the Court’s majority in Harris, offers some strong criticisms of Abood that could well open the possibility of future challenges to it. Among them:
Just as importantly, Justice Alito points out that the Court in Abood approached the First Amendment issues relating to free speech as settled by earlier rulings that didn’t in fact settle the issue. One of them, Machinists v. Street, Alito argues, wasn’t a constitutional case at all, while the other, Railway Employees v. Hanson, was “a case in which the First Amendment was barely mentioned” (page 9).