Justice Samuel Alito Jr.
Justice Samuel Alito Jr. (NLJ/Diego M. Radzinschi)

WASHINGTON – In a case that may threaten the future of public-employee unions, the U.S. Supreme Court on Monday ruled so-called agency fees charged to certain nonunion members violate those members’ First Amendment rights.

The high court stopped short of barring all public-employee unions from charging agency fees to nonmembers. The employees in the case before the court—Illinois home care workers—were not “full-fledged” public employees, the court said.

Justice Samuel Alito Jr., writing for the majority, said there were key differences between the personal care workers at issue and “full-fledged” public employees, including the government’s authority with respect to those employees.

Extending the case law “to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems,” Alito wrote, joined by Chief Justice John Roberts Jr. and justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

“If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support,” Alito wrote.

Justice Elena Kagan, joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, dissented.

The high court’s decision in Harris v. Quinn, 11-681, came in a challenge by a group of Illinois home care workers who argued the agency fee charged by the Service Employees International Union violated their rights by forcing them to associate with a particular union.

Illinois home care workers are paid by the state through Medicaid to assist disabled individuals under programs aimed at allowing the disabled and elderly to stay in their homes and out of institutions. The Service Employees International Union is their collective-bargaining unit under state law, and the union began charging nonmembers an agency fee that is smaller than ordinary union dues. In that way, nonmembers help pay for collective bargaining that benefits them, but would not pay for other union activities and policies with which they disagree.

The National Right to Work Legal Defense Foundation, which has waged a long war against agency fees, took up the objecting home care workers’ cause. During arguments in January, the foundation’s lawyer, William Messenger, urged the justices to overturn the 1977 precedent that underlies the constitutionality of agency fee requirements in the public sector: Abood v. Detroit Board of Education, 431 U.S. 209. In that decision, the justices held that requiring nonunion public school teachers to pay unions for collective-bargaining services that benefit all teachers did not violate the First Amendment.

Unions feared that a decision favoring the objectors would encourage more employees to become “free-riders,” not joining the union but benefiting from its work, ultimately depleting the funds that unions need to carry on their work.

Jenner & Block partner Paul Smith argued on behalf of the union and the state of Illinois. He said the court has held for decades that agency fee arrangements were acceptable “because of the duty of fair representation” to bargain for all workers in a workplace and “the benefits of allowing collective bargaining to proceed.” Smith told the justices “the law requires the union to look after that [nonmember] teacher and make sure that they get treated equally.”

Solicitor General Donald Verrilli Jr., supporting the state and the union, defended Abood, saying it “has the force of stare decisis behind it [and] is completely consistent with this court’s First Amendment jurisprudence.”

Alyson Mathews, a partner at Lamb & Barnosky and co-chair of the membership committee of the New York State Bar’s Labor and Employment section, who represents school districts and other employers, said she did not think the ruling would have a broad effect in New York.

“I don’t think it means much yet,” she said. “They issued a very, very narrow decision based on specific facts with what happened in Illinois.”

Nathaniel Lambright, a partner at Blitman & King who represents unions, similarly said the effect of the ruling would be limited in New York.

“I don’t think it’s going to have a large impact in New York State,” he said. “I think the great majority of workers in New York won’t be considered partial public employees, so I don’t see it impacting most public sector unions.”

Like Mathews, however, he said that it could set the stage for a broader ruling in the future.

Additional reporting by Brendan Pierson of the New York Law Journal.