Government Unions Under Fire in Supreme Court

Posted: Jan 21, 2014 11:30 AM

The Supreme Court will hear oral arguments today in a case that could undermine a key sector of government union growth, Medicaid-funded home health care providers.

While private sector unions have been in sharp decline since the 1950s, government unions have been growing rapidly since the 1970s, and now make up more than half of all union members. And, as our society ages and the nation's Medicaid programs become more generous, the number of Medicaid-funded home health care workers has grown rapidly. There were reportedly 1.9 million such workers nation wide in 2010.

Recognizing a lucrative new revenue stream, government unions like the Service Employees International Union have been pushing Democratic governors across the country to deem Medicaid-funded home health care workers as "government employees" that can then be organized as a union under federal labor law.

Before he was convicted in federal court on corruption charges, former-Illinois Gov. Rod Blagojevich rewarded the SEIU for their political support of his campaign by signing an executive order deeming Illinois' Medicaid-funded home health care workers as state employees. The SEIU then quickly mounted a card check campaign making them the sole collective bargaining representatives of all Medicaid-funded home health care workers, a franchise that is worth $3.6 million in dues annualy from all Medicaid-funded home health care workers, whether they choose to join the union or not.

The plaintiff in the case, Pamela Harris, cares for her severely disabled son at home, and she would rather keep more of her Medicaid-funded paycheck, then give it to the SEIU.

The SEIU claims they must be allowed to take money from directly out of every Medicaid-funded home health care worker's paycheck, otherwise they will not be able to properly represent the workers before the government. The SEIU points to a 47-year-old case, Abood v. Detroit Board of Education, holding that states can force public employers to pay union dues, so long as those who object can opt-out of paying the portion of the dues that go to political activities.

But in 2011, in Knox v SEIU, the Court signaled that their view on the separability of union representation and political activities had changed, especially for government unions. Knox held:

Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights. Our cases to date have tolerated this impingement, and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.

The primary purpose of permitting unions to collect fees from nonmembers, we have said, is to prevent nonmembers from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred. Such free-rider arguments, however, are generally insufficient to overcome First Amendment objections.

Harris is asserting exactly such a First Amendment claim. If the Court sides with Harris and her First Amendment rights, government unions would be denied a huge stream of taxpayer revenue.

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