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Supreme Court labor ruling could pose issues here

A Supreme Court ruling on Monday raised questions about whether thousands of Washington home care and child care providers should have to pay union fees.

In a 5-4 ruling, the court said that home-care aides in Illinois cannot be required to pay union fees that help cover collective bargaining costs. The fees, the court said, violate the First Amendment right to free speech for workers who are represented by the union but are not members. Service Employees International Union 775NW represents caregivers who provide in-home services to elderly and disabled people in Washington. About 35,000 workers are covered by a collective bargaining agreement between the union and the state. 

While SEIU 775NW is skeptical that the court decision will affect Washington, local backers of the ruling said Monday they would push to see that it is applied. State officials meanwhile, were hesitant to weigh in until they have had more time to look over the court's opinion.

"Home care workers in Washington state are very, very different than Illinois personal assistants," said SEIU spokesperson Jackson Holtz. Personal assistants are the workers who provide disabled adults with in-home care in Illinois; they are also represented by SEIU.

Holtz added: "It's a complex decision and we're still analyzing it."

Gov. Jay Inslee and the State Attorney General's Office did not take an immediate position on the court's decision in the case, Harris v. Quinn. "Every state’s home care workers program is different," Jaime Smith, a spokesperson for Inslee's office said. "We’re still reviewing the ruling to understand its implications here in Washington."

Freedom Foundation, a conservative think tank in Olympia, took a different view. "We'll do what is necessary to get this decision implemented in Washington," said Maxford Nelsen, a labor policy analyst for the group. Nelsen said that, depending on how the state proceeds, litigation might be an option for getting the ruling to apply locally.

"If the state chooses to do the right thing," he said, "it shouldn't be an issue."

In addition to the in-home health care workers, which SEIU 775NW represents, it is also uncertain if the decision could have any implications for SEIU 925 workers, who provide child care in their own homes. There are about 7,800 child care workers represented by SEIU 925, according to Holtz. SEIU 925 is also reviewing the court ruling, he said.

Home care providers who are paid with Medicaid funds in Washington must either become SEIU members and pay full union dues, or opt out of joining the union and pay a lower "fair-share" fee. The full union dues for an average SEIU 775NW worker are about 30 cents per hour, Holtz said. He did not specify the amount of the fair share fee, also called an "agency fee."

SEIU reported 41,517 members and agency fee payers in 2013, according to a U.S. Department of Labor disclosure report. Of those, only 75 were fee payers who opted out of full union membership. The union represents workers in Washington and Montana.

Charlotte Garden, who teaches Constitutional and labor law at Seattle University, said it was too early to tell how the decision would play out in places other than Illinois. "It really remains to be seen how the decision will be applied to other states," she said. "Certainly one possibility is that someone who is covered by the contract here would file a lawsuit." 

That lawsuit would take place in federal court and would most likely hinge on the First Amendment rights addressed in today's Supreme Court ruling.

Justice Samuel A. Alito Jr. wrote the majority opinion for the court. It refers to the in-home care workers as "partial-public employees." The opinion also notes that Illinois law calls the person receiving the in-home care a "customer," and emphasizes their status as the caregiver's employer.

The Illinois workers who filed the lawsuit in the case wanted to see the court overturn a 1977 ruling in Abood v. Detroit Board of Education. In that case, the court said that that public employees who choose not to become union members can still be charged representation fees. Those fees cannot be used to fund political activities.

Backed by the National Right to Work Legal Defense Foundation, the workers contended that they should not have to pay fees to an organization that takes stances that they oppose. 

Alito endorsed this logic. During collective bargaining, unions would likely favor increased wages and benefits, which could result in increased Medicaid expenditures, he wrote in the opinion. "It is impossible to argue that the level of Medicaid funding is not a matter of great public concern."

Requiring partial-public employees, quasi-public employees, or private employees to pay representation fees based on the Abood decision, he wrote, "would invite problems."

According to Washington's Office of Financial Management, home-care providers in the state fall within a class of employees who are considered public workers only for the purposes of collective bargaining.

Those in support of public sector unions had worried that the court might overturn Abood completely. This would have opened the door for for so-called free-riding, meaning that nonmembers represented by unions could simply choose to not pay their fees while still gaining representation, jeopardizing labor organizations' coffers.

In her dissent, Justice Elena Kagan backed the precedent set by Abood and pointed out that Illinois set workforce-wide terms of employment like wages, benefits and health insurance. "Today’s opinion takes the tack of throwing everything against the wall in the hope that something might stick," she wrote. "A vain hope, as it turns out. Even once disentangled, the various strands of the majority’s reasoning do not distinguish this case from Abood."

Home care workers in Washington were allowed to organize after voters passed ballot Initiative 775 in 2001. Washington state and SEIU 775NW are currently negotiating a bargaining agreement for 2015-2017. According to U.S. Department of Labor records, SEIU 775NW collected just under $19.6 million in dues and fees last year.

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