Forced Unionization of Home Care Workers Before the Supreme Court

The Supreme Court will be
hearing today a potentially very important freedom of association
case that hasn’t gotten a huge amount of publicity as yet, partly
because the court decided to
take it on while we were in the midst of that scary government
shutdown (that wasn’t actually all that scary).

Harris v. Quinn plunges deep into the methods that
labor unions have been using to survive even as fewer and fewer
people seem interested in joining. Namely, government force. In
Illinois in 2003 and 2009, the state decided to treat all home-care
health workers who received Medicaid subsidies as though they were
government employees (though they are still privately employed) and
required them to accept Service Employees International Union as
their bargaining representative, whether they wanted to or not.
They are required to pay dues to the union for this service,
regardless of whether they want it or want to be in the union.

A pack of home-care workers are suing, arguing that being forced
to pay SEIU for representation violates their First Amendment
rights to free speech and association. The Cato Institute (who has
a primer on the case here)
has submitted a
brief (pdf), along with the National Federation of Independent
Business and the Michigan-Based, free-market think-tank Mackinac
Center, in support of the plaintiffs.

Of note in Cato’s argument is that they tackle two of the major
arguments that the courts have accepted to allow for compulsory
membership in unions at places of government – to preserve “labor
peace” (conflicts resulting from multiple bargaining
representatives for different employees doing the same work) and to
avoid “free riders,” those who reap the rewards of collective
agreements without contributing to the costs of representation.

It should be fairly obvious that in the case of often
self-employed home health workers, these two arguments don’t apply.
The workers are hired by and work for individuals, and that’s not
changing. There are no threats to labor peace, nor would there be
any free riders. These home care workers all work in the same field
but they are in no sense in the same business together. In Cato’s
brief, they note that this forced unionization is only about
lobbying for more pay and benefits, using the union to give
“feedback” to the state about rates set by laws. It is offering
nothing else. Thus, Cato notes, the state has no actual compelling
interest in forcing home care workers into accepting union
representation:

Even if compelling “feedback” were a legitimate state interest,
the means selected by Illinois are far too blunt. “If the State has
open to it a less drastic way of satisfying its legitimate
interests, it may not choose a legislative scheme that broadly
stifles the exercise of fundamental personal liberties.” … In
particular, a state may override the freedom of expressive
association only where its interests “cannot be achieved through
means significantly less restrictive of associational freedoms.” …
If the State’s genuine purpose is to seek feedback from personal
assistants, it might survey or interview them or undertake any of a
number of far “less drastic” alternatives. It therefore may not
command them to assemble for the very purpose of expressive
association.

Too long, didn’t read version: The state can’t force home care
workers into unions and make them pay the union money entirely for
the purpose of the union lobbying the state to pay the workers more
money (some of which will then go back to the union). Instead they
could just survey home care workers.

A Washington Examiner piece
suggests that this case could be a “sleeper” that could have
major consequences. The SEIU president in Illinois, in the subtle,
understated language union leaders are known for,
told AlJazeera the plaintiffs want to “destroy things for
working people in the U.S.”

While it’s an important case, the complexities of the situation
are enough that a pro-free association decision could be written
narrowly enough so that it only applies to these privately hired
individual workers. It would be a big win for private self-employed
people being dragooned into a union for no rational reason but to
bolster union ranks, but it may not be the kind of test case some
are clearly hoping for.