USSC Address Agency Fees in Harris v. Quinn

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The Supreme Court, dividing five to four, ruled June 30 that public employees cannot routinely be required to join labor unions or to support them by paying dues. The justices ruled in Harris v. Quinn (Case No. 11-681) that home health care workers in Illinois cannot be compelled to financially support a union they don’t wish to join.  These fees, are more typically known as union bargaining fees or ‘agency fees.’ Because they’re not truly state employees, the justices decided these workers did not have to pay union dues.

The ruling in Harris v. Quinn, at a minimum, raises serious new doubt about continued majority support within the Court for a 1977 decision, Abood v. Detroit Board of Education – a precedent that is vital to the very concept of public employee unionism.   But, the court did not go as far as overruling the 1977 Abood precedent, which would have dealt a blow to collective-bargaining rights, among other things. 

"Because of Abood's questionable foundations … we refuse to extend Abood to the new situation now before us," Alito wrote. "If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line, and we therefore confineAbood's reach to full-fledged state employees."

Alito was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.


Illinois is one of 26 states that require public-sector workers — such as firefighters, police officers and teachers — to pay partial dues, often known as “agency fees,” to unions that negotiate their contracts and represent them in grievances, even if the employees find the union’s advocacy work distasteful.  Agency fees address the problem of "free riders" and serve to encourage some workers to join the union at the full dues price.

The case involved eight Illinois home health-care workers who declined to join a union and objected to paying agency, or "fair-share," fees for being represented by one.  The health-care workers serve under a Medicaid program designed to encourage the states to de-institutionalize some people with disabilities. The workers were getting paid about $7 per hour, with high rates of turnover and low morale, when Illinois decided to make them state employees for collective-bargaining purposes and to certify a unit of the Service Employees International Union as their bargaining representative.

In rejecting the challenge to the service fees by the home health-care workers who object to union membership, the U.S. Court of Appeals for the 7th Circuit, in Chicago, held in 2011 that the state largely controlled the employment of the program's home-health workers and thus a key Supreme Court precedent on public-employee collective bargaining applied to their arrangements.

The National Right to Work Legal Defense Foundation of Springfield, Va., which represents the objecting workers, broadened the scope of their case by asking the Supreme Court to overrule Abood v. Detroit Board of Education, a key 1977 decision that authorizes teachers' unions and other public-employee labor organizations to collect service fees from non-members for costs related to collective bargaining.

In Abood, the Supreme Court upheld a Michigan law that designated a single union as the exclusive bargaining agent for Detroit teachers. Adopting some of its precedents on union shop agreements from the private sector, the court said teachers in public school districts could be required to pay compulsory union fees for collective bargaining, whether they joined the union or not, because the system promoted "labor peace."

However, the union could not use the funds of objecting non-union members for political purposes that are not directly related to collective bargaining.

The Abood precedent was supported by the teacher's unions. In the Harris case, The National Education Association and its affiliate, the California Teachers' Association (which is a party in the case over the California law) filed a friend-of-the-court brief in the Supreme Court saying Abood was rightly decided and remains viable.

Since Abood, there has been a series of Supreme Court cases addressing what may and may not be charged in service fees to non-union members, and how to account for such amounts.  Two years ago, in Knox v. Service Employees International Union, the Supreme Court ruled 5-4 that public-employee unions had to get non-members to opt in to be assessed special one-time fees. The decision was a relatively minor defeat for the unions, but was the latest in a series in which the high court's conservatives had ruled against them on the rights of dissenting nonmembers.  Writing for the majority in Knox, Justice Alito invited further challenges to the status quo in public-employee unionism when he wrote, "By allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers."