Much Abood about nothing

As pay back to the unions who supported him during his election, Illinois Governor Rod Blagojevich unionized personal assistants in 2003.

He accomplished this by issuing an executive order, allowing the state to recognize “personal assistants” as state employees for collective bargaining purposes. The caregivers receive payment through Illinois’ “Rehabilitation Program,” a Medicaid initiative that pays for caretakers of disabled and elderly persons.

Due to a 1985 Labor Board ruling, Blagojevich stated in his order that while personal assistants were not government employees, they were for collective bargaining purposes. The 1985 Labor Board ruling was issued during the Service Employees International Union’s earlier attempt to unionize personal assistants in Chicago and Cook County, Illinois.

Blagojevich’s order read in part:

WHEREAS, the personal assistants work in the homes of recipients throughout Illinois and therefore cannot effectively voice their concerns about the organization of the Home Services program, their role in the program, or the terms and conditions of their employment under the Program without representation;

Shortly thereafter, an SEIU local quickly became the union claiming to represent personal assistants. Even those who did not join the union were forced to pay an agency fee. An agency fee is a payment that a non-member has to make, purportedly to pay for the cost of collective bargaining (It is not supposed to pay for any political activities.).

Later in 2009, after Blagojevich was sentenced to fourteen years in jail and removed from office for attempting to sell a Senate seat, his successor Pat Quinn tried to followed Blagojevich’s play book to unionize personal assistants under a similar but different initiative, the “Disabilities Program.”

However, Quinn was stopped by Pamela Harris.

Pamela Harris has a son with disabilities, and at the time, she received subsidies from the Disabilities Program, allowing her to take care of her son at home. She learned of Quinn’s order from a union representative who was promoting union membership. She refused to join and sent letters to other personal assistants, explaining that the union dues were going to reduce the funds for their loved ones’ care; membership in the union was also going to reduce the independence of the personal assistants.

As a result of her efforts, the majority of personal assistants voted against joining the union, but Quinn refused to rescind his order.

On behalf of Harris and other personal assistants in the Rehabilitation and Disabilities Programs, the National Right to Work Legal Defense Foundation sued the governor in the U.S. District Court for the Northern District of Illinois, challenging the agency fees as a violation of their First Amendment rights.

Unfortunately, the District Court dismissed the lawsuit on a technicality, and the U.S. Court of Appeals for the Seventh Circuit affirmed on September 1, 2011:

Given our conclusion that the State employs the personal assistants, with extensive control over the terms and conditions of employment, and has chosen (wisely or not) to establish some of those terms and conditions through negotiation rather than regulation, the interests identified by the [prior case regarding teachers and agency fees] Court in Abood [v. Detroit Board of Education] are identical to those advanced by the State in this case.

In other words, the legal issues of the plaintiffs under the Rehabilitation Program are similar enough to the legal issues of the plaintiffs in Abood that the Seventh Circuit will not decide this case. In Abood, the Supreme Court ruled unanimously in 1977 that nonunion members in the public sector cannot be forced to fund political activities, but they can be forced to pay for collective bargaining costs.

But the Supreme Court disagreed with the lower courts in this case.

On June 30, 2014, the Supreme Court reversed the Seventh Circuit in a 5-4 decision, deciding that Abood did not apply to this case because the Rehabilitation Program personal assistants are not government employees since they do not received the same rights and benefits. Because the Court found that Abood did not apply, the Court did not dismiss the case on this technicality and answered the legal question.

In its opinion, the Supreme Court rejected the argument that the agency fee promotes peace. Writing for the majority, Justice Alito wrote:

Focusing on the benefits of the union’s status as the exclusive bargaining agent for all employees in the unit, respondents argue that the agency-fee provision promotes “labor peace,” but their argument largely misses the point. Petitioners do not contend that they have a First Amend­ment right to form a rival union. Nor do they 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 other argument made by Quinn was that the union helped personal assistants by improving wages and benefits, organizing training programs, etc. However, the Supreme Court also found this argument wanting:

The agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join. No such showing has been made.

The Court found that other organizations that depend on voluntary donations have been able to advocate effectively for other groups. So, the fact that the union had been able to do that was not enough for them to win this case.

With the Harris ruling, the Supreme Court is now very clear that only traditional government employees who receive rights and benefits can be forced to pay agency fees, not people who work at home and receive Medicaid subsidies.