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1/22/2014 | Construction Blog, Kaplin Stewart Blog

The Supreme Court recently held oral argument in Noel Canning, a case in which the recess appointments of President Obama to the National Labor Relations Board were challenged. While that case will have no short term implications since the same appointees have since been ushered through a more legitimate process, it is anticipated by most legal scholars that the administration will lose this battle. Following on that case, the Supreme Court heard argument yesterday on whether forced payments into a public sector employee union violates the constitutional rights of free speech and free association of workers.

The case of Harris v. Quinn (which is being appealed from the 7th Circuit) was brought by a number of people who provide in-home care to residents in Illinois. Many of the people who engage in this work are taking care of disabled or sick family members. The Governor signed an executive order declaring that people providing this service were effectively public sector workers because the money being used to pay them was at least in part coming from state Medicaid funds. The SEIU, as a result, maintains that the in home care givers are part of their collective bargaining unit and can be forced to pay union dues to the SEIU.

The plaintiffs in the case object to the requirement that they pay dues on grounds that it is being used to fund political speech with which they disagree and requires that they associate with the union against their will. As framed, the case pits two long standing Supreme Court precedents against each other. On one side is the long standing principal that the right to free speech and free association includes the right not speak or associate. In juxtaposition to this are the Court’s prior holdings that suggest workers can be forced to pay union dues so as to avoid the free ride that would come from the union’s bargaining work on their behalf.

Many political commentators are opining that this case could have large implications for labor unions. This assumes that the Court finds in favor of the Plaintiffs on free speech or free association grounds. However, a more likely outcome seems to be a decision that turns on an analysis other than those discussed above. Another Supreme Court precedent – the Court’s preference to avoid deciding cases on constitutional grounds if possible – will likely push the justices to decide the case on some basis other than the conflict between free speech and forced union dues. This is only reinforced by the fact that such an approach will avoid large political implications, limit the reach of the opinion, and avoid substantial changes in the work environments of many states.

This is certainly a case worth following.