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California unions fear 'free-riders' in Supreme Court health ruling

A ruling authored by Supreme Court Samuel Alito Jr. relieves some Illinois health care workers from having to pay union fees.
A ruling authored by Supreme Court Samuel Alito Jr. relieves some Illinois health care workers from having to pay union fees.

Monday's Supreme Court decision allowing Illinois home health care workers to avoid paying union fees does not immediately affect California's union workers. However, some public employee unions see it foreshadowing a coming challenge of their access to workers' membership dollars, the lifeblood of any labor organization.

The unions fear something called "free riding" — where public employees get the benefits of collective bargaining and union representation without paying for it.

"The problem of free-riding is a real problem and it's important that as unions we believe in everyone paying their fair share," said Christopher Calhoun, communications director for SEIU California, which represents two-thirds of California in-home health care workers. He said his and other unions that represent more than 300,000 home health care workers were still analyzing the ruling to determine its effect.

In Harris v. Quinn, a group of Illinois home health care aides sued the state to stop paying fees to the union that represents them. They said the requirement to pay money to a union they disagree with violated their free speech rights. The aides had already opted out of union membership and were suing the state over the requirement that they pay fees covering the cost of the union's negotiating work on their behalf.

The Supreme Court's 5-4 ruling lifted the fees requirement on those home health workers.

The court focused its decision narrowly on those Illinois workers because their working conditions were very different from the larger public employee workforce. The home health workers are hired directly by their clients, who may be family members, and they are paid by the state.

Opting out of union membership and dues

Public employees who don't want to join a union or fund its political activities can opt out of membership under prior high court decisions. But the workers are still required to pay what are called "agency fees." Those fees compensate the union for the cost of negotiating contracts and representing workers in grievances. They cost less than full membership dues. Those fees, also known as fair share payments, cannot be used to fund union political activities.

If enough members of a union opt out of paying membership dues, the union has less money to influence public policy, and less to give to political candidates and to spend on other promotional activities. If workers can opt out of paying agency fees, the union would be providing representation for those employees for free.

"We'll definitely see more cases involving union objectors," said Charlotte Garden, who teaches labor law at Seattle University School of Law and who co-authored an amicus brief in the Harris case.

This ruling affects only the Illinois health care workers but it sets the stage for a future case attacking the rights of unions to collect agency fees paid by public employees  who opt out of union membership and paying full dues, Garden said.

"Free-riding is the idea that there is a collective benefit that not everybody has to pay for," Garden said.

The ruling, "will make it harder for unions to do the important work they do as workplace representatives," said Steve Early, a onetime union activist from Richmond who has written  several books on unions. "It will require them to do a lot more internal organizing and to maintain the support of the membership that they need."

California union membership rate higher than U.S.

California union membership has declined slightly since 2008 , and is at about 2.5 million, about its 2004 level. Still, the rate of union membership is higher in California than in the nation as a whole. Just under 18 percent of California workers belong to unions. Less than 12 percent of U.S. workers are in unions. More than one-third of public sector workers belong to unions.

"This is part of a broader open shop trend," Early said. He pointed to legislation in Wisconsin, Indiana and the union stronghold state of Michigan where unions have lost the power to collect dues from all the members they represent.

"When union membership is voluntary and a union still has a legal obligation to provide services to everyone they represent, that's not fair," Early said.

He said the decision could lay the groundwork for members of other public employee unions to attempt to stop paying fees.

"If they want to change the rules of the game so that only union members get the benefits of union bargaining and representation, that would be a different kind of labor relations setup," he said.

About 300,000 people work as union-represented home health workers in California. Two-thirds of them are in units of the Service Employees International Union, the rest are represented by AFSCME or by CUHW, which is jointly run by SEIU and AFSCME. They earn about $9.65 per hour and may work part-time or full-time schedules.

Some California union workers already free ride

Representatives of several large public employee unions in California denounced the ruling as eroding worker rights, but they also noted that it was a narrow ruling that doesn't immediately harm Californians because it didn't revoke collective bargaining rights or eliminate existing contracts.

"That would have been a fundamental gutting of the American Dream," said Lee Saunders, president of the large AFSCME public employees union. "But make no mistake -- Justice Alito's opinion made clear that the relentless assault on workers' rights will not abate."

California Teachers Association spokesman Frank Wells said the decision doesn't directly affect the state's largest public employee union, which has has 320,000 members.

However a group of ten teachers sued the CTA and other local teachers unions to get out of paying union fees that they contend violate their free speech rights. The teachers contend the fees were being used for political purposes.

Gregg Adam, counsel for several police, corrections officers and firefighter public employee unions in California said, "The long term effect (of the Harris ruling) is that it invites the next challenge" of membership dues and agency fees.

Some public employee unions in California already have free-riding members, he said. The San Francisco Police Officers Association, for example, has 2,100 members of which more than 30 decline to pay membership dues. The association could charge them agency fees, but so far has chosen not to, Adam said.