Harris v. Quinn: An anti-Abood manifesto

Abood's analysis is "questionable." The basic holding in Harris v. Quinn (US Supreme Court 06/30/2014) is that the first amendment bars collection of union agency fees from Illinois homecare personal assistants who do not want to join or support the union. This was a 5-4 decision.

Illinois has a system under which private customers control most of their personal assistants' employment relationship (hiring, firing, training, supervising, and disciplining) but the state pays the wages. A union represents all these personal assistants, and has a collective bargaining agreement with the state which includes a "fair share" clause that requires the personal assistants to pay a fee to the union. Such fair share clauses are common throughout both public sector and private sector collective bargaining, and historically have been upheld when challenged on first amendment grounds.

In Harris v. Quinn the Court saw these employees as not being "full-fledged public employees." As such, the Court declined to apply its prior case - Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) - which upheld fair share clauses in the public sector.

Technically, the decision did not overrule Abood. Yet the majority laid out a set of reasons why it believes Abood's analysis is "questionable."

Here is the majority's anti-Abood manifesto:

  • Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson's first amendment analysis was "thin."
  • Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  • The Abood Court fundamentally misunderstood Hanson's narrow holding.
  • Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  • Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  • Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  • Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  • The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

Public sector unions ought to be trembling today.

[For a list of current employment law cases, see Supreme Court Watch.]