Court ruling on union support will have impact here

It wasn’t the right-to-work ruling some were expecting, but the U.S. Supreme Court’s ruling last week in Harris v. Quinn will still have big implications for the First Amendment rights of some workers in Washington.

The suit was brought by Illinois home health care workers who chose not to join the Service Employees International Union (SEIU) but were still required to pay “agency fees” (also known as “fair share” fees) to the union for collective bargaining costs. This is not a new issue; the Supreme Court has handled many cases regarding people’s right to not join a union, agency fees paid by non-members to prevent “free riding” on the union’s work, and how unions may spend the agency fees of non-members.

The court ruled that home health care workers and other “partial-public employees” cannot be forced to pay agency fees to the union. The workers are considered partial-public employees because, while they are paid through the State of Illinois, they are actually employees of their patients, not the state.

Some expected the court to strike down the Abood case from 1977, which upheld agency fees as constitutional, on the grounds that workers have First Amendment rights to not only not join a union but also a right not to be forced to support its work through agency fees. Instead the court ruled more narrowly, keeping their opinion to the issue of partial-public employees but using language that many saw as an invitation for full-fledged public employees to sue to overturn Abood.

This ruling will likely directly affect Washington’s home health care workers. A representative of SEIU in this state asserted to the Seattle Times that there are “’innumerable’ differences between the legal status of Illinois home-health-care workers and those in Washington,” but it’s difficult to see the distinction. Home health care workers are considered state employees under state law “solely for the purpose of collective bargaining” – seeming to fit the definition of “partial-public employees” that the court ruled “cannot be compelled to either join a union or pay representation fees to one.”

The ruling upholds these workers’ right to not monetarily support a union whose goals or advocacy they disagree with. We’ve had our own battles on similar topics in Washington. I argued a case, Davenport v. Washington Education Association, before the U.S. Supreme Court to uphold a voter-approved law that requires unions to receive permission from non-members before spending their agency fees on political activity. The court ruled 9-0 that the law was constitutional, and it was even cited a few times in the Harris v. Quinn decision.

Now the question is, what will the Harris ruling mean for home health care workers in Washington? Clearly, these workers will have the same right to opt out of the union and agency fees as the Illinois workers were given – but it may take a lawsuit to make that happen. SEIU members in Washington currently pay about 30 cents an hour to the union, which collected just under $20 million last year in dues.

And what will happen to SEIU? Nothing in the ruling prevents home health care workers from organizing in a union or remaining in one. Conceivably if workers can opt out entirely, the union will have to prove its value to hang on to members. Michigan, which passed a right-to-work law in 2012, saw the majority of its home health care workers quit SEIU when given the chance.

But the union has an ace up its sleeve in our state. Initiative 1163 requires the state to pay for 75 hours of training for new home health care workers and 12 hours annually of continuing education. The state pays those who provide the training (most of which is provided – ta-da – by SEIU itself. The initiative was written by them, after all) but also pays workers an hourly wage for their training hours – provided they are members of SEIU.

That’s a pretty big carrot for workers to join and stay in the union. Some might even call it coercive.
-Rob McKenna

The following two tabs change content below.
Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.