U.S. Supreme Court ruling against forced unionization of home care workers may strike down Washington state law

June 30, 2014

Although the U.S. Supreme Court (SCOTUS) did not rule in its Harris v. Quinn case today, as some had expected, on whether government workers must join a union, the decision does call into question the forced unionization of some Washington residents. The decision at a minimum likely applies to home healthcare workers, family child care providers and language access providers (it may also impact others). 

The reason why these three groups may be impacted by today's SCOTUS ruling is because state law calls them public employees "solely for the purposes of collective bargaining." This distinction most likely triggers the Court's test of them being "quasi-public employees" and thus they are not subject to the 1977 Abood decision, which allows public sector unions to collect mandatory agency fees from workers as a condition of employment.  If the Court says home care workers in Illinois can’t be forced to give money to a union, then home care workers in Washington can’t either.

I am waiting to hear back from the state Attorney General's Office for its take on today's ruling and who it affects in Washington.

As for the broader issue of Abood and if this is the last word on the requirement for mandatory agency fee collections for "full-fledged state employees," reading today's opinion I think SCOTUS really, really, really wanted to overturn Abood, but the facts would not let them get there, since the plaintiffs (home care workers in Illinois) are not "full-fledged state employees."

Here’s what the justices said about the problems in Abood, from today’s Harris v. Quinn opinion:

The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.

The Abood Court seriously erred in treating Hanson and Street as having all but decided the constitutionality of compulsory payments to a public-sector union. As we have explained, Street was not a constitutional decision at all, and Hanson disposed of the critical question in a single, unsupported sentence that its author essentially abandoned a few years later. Surely a First Amendment issue of this importance deserved better treatment . . .

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. In the years since Abood, as state and local expenditures on employee wages and benefits have mushroomed, the importance of the difference between bargaining in the public and private sectors has been driven home.

Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government . . .

Because of Abood’s questionable foundations, and because the personal assistants are quite different from full-fledged public employees, we refuse to extend Abood to the new situation now before us. Abood itself has clear boundaries; it applies to public employees. Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems . . .

If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line, and we therefore confine Abood’s reach to full-fledged state employees.

When the Court says an earlier decision has “questionable foundations” the course has been laid for the next case to address this important issue; a case that is sure to bring Abood right back to the chambers of the U.S. Supreme Court in the near future. In the meantime, I'll update this post with any information I learn from the Attorney General on the Court ruling's impact on Washington.

Updated (2:40 p.m.)

No comment yet from the Attorney General's Office but this Olympian article says state lawyers are huddling to see what the impact of the ruling is for Washington.

Updated (7/1 - 8:10 a.m.)

The Attorney General's Office sent me this statement last night: 

We are aware of the Harris v. Quinn decision and are reviewing it. We need time to review it fully and consult with our client agencies to determine what, if any, implications there are for Washington state.

Tom McCabe, CEO of the Freedom Foundation, also released this statement last night:

The Freedom Foundation's legal team, which now includes former state Supreme Court Justice Jim Johnson, is analyzing how to force SEIU and the Governor in our state to comply with today's ruling. It will likely take litigation.

Stay tuned for more updates.

Updated (7/1 - 1:05 p.m.)

According to the Office of Financial Management:

There are several statutes granting collective bargaining rights to different groups:

State Employees

  • General government and higher education employees, as provided by RCW 41.80
  • Washington state ferries employees, as provided by RCW 47.64
  • Commissioned officers of the Washington state patrol, as provided by RCW 41.56

Non-State Employees

  • Adult family home providers, as provided by RCW 41.56
  • Child care providers, as provided by RCW 41.56
  • Home care individual providers, as provided by RCW 74.39A.270
  • Language access providers, as provided by RCW 41.56

What issues do unions and management negotiate?

During labor negotiations with unions representing state employees, the focus is on issues that matter to all employees—wages, health benefit costs, methods for resolving disputes, and on creating a better environment in which to manage the state’s human resources.

Adult family home providers, child care providers, home care individual providers and language access providers are not state employees. They are only considered state employees for the purposes of collective bargaining. Individuals covered under the non-state employee agreements are business owners, independent contractors, or employees of the consumer of services. The scope of labor negotiations is defined in RCW 41.56 and RCW 74.39A.270.

Updated 7/22

According to The Olympian:

Several dozen home-care workers in Washington have been told by their union that they can avoid paying any union-related fees or dues in the wake of last month’s U.S. Supreme Court decision in the Harris v. Quinn case.

The high court ruling left open the greater possibility that home care workers, who are not state employees but are paid out of the state-run Medicaid program, could opt out of paying fees as well as dues.

The notice to workers appears to have gone from Service Employees International Union 775 to select home care workers who have already objected to being in the union. News of the notice came from a top critic of SEIU 775 – The Freedom Foundation, a right-of-center think tank in Olympia – which posted the letter from a top union officer on its web site.

TFF, which has hinted it might sue to enforce its interpretation of the court ruling on SEIU, also claimed in a news release that the union capitulated – while also indicating the union should go further.