The US supreme court has chipped away at the collective bargaining power of public sector unions by issuing a limited ruling that prohibits unions from demanding fees from all state employees in specific areas of public services.



In a 5-4 split, with the conservative justices in the majority and their liberal colleagues all dissenting, the supreme court ruled that unions could only extract fees to cover the costs of collective bargaining from fully fledged state employees. The ruling split off a whole class of workers – in this case homecare aides who are paid by the state but, in the court’s view, still essentially employed by the individuals they care for – and ordered that in these cases, compulsory union dues were a violation of free speech rights.

The ruling, Harris vs Quinn, stopped short of the nuclear option: a full rejection of a legal principle upheld in successive supreme court judgments for the past 40 years – and on which the enduring strength of public sector unions in America depends – that allows for “fair-share agreements” in which public sector unions extract fees from all workers covered by the contracts they negotiated, even those that refuse to belong to them, on grounds that everyone should pay a fair share of the costs incurred in collective bargaining.

In his 39-page opinion, Justice Samuel Alito, writing for the majority, did not destroy that principle entirely. But he did hack into it, in an attack that is certain to embolden conservative political and corporate interests who want to see the crippling of the powerful public sector unions, which are important Democratic allies.

In one memorable sentence that will cause particular alarm in trade union circles, Alito wrote: “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.”

The case arose out of a class action brought by a group of Illinois homecare workers, known as personal assistants, who provide services to disabled Medicaid recipients who might otherwise be in institutions. The lead petitioner, Pamela Harris, who is paid by the state to look after her developmentally disabled son at home, objected that although she had opted not to join the SEIU Healthcare Illinois & Indiana union she was still obliged to pay a fee to cover collective bargaining on her behalf.

With the backing of the anti-union National Right To Work Coalition, Harris and her co-petitioners claimed that the obligatory union dues were a violation of her first amendment rights. They argued that it was a tenet of free speech that individual workers should not be forced through financial fees to support an organization whose political activities they might oppose.

The challenge was seen as a threat to unions’ rights across the public sector, as a broad ruling in favour of Harris would have undermined collective bargaining procedures that had been legally recognized since the landmark 1977 decision Abood v Detroit Board of Education, in which the supreme court embraced the concept that public employees could be compelled to pay a fair share of the cost of collective bargaining.

The five justices in the majority decided to leave Abood standing, albeit in a weakened form. In his opinion, Alito was scathing about the precedent that Abood set, calling it “questionable on several grounds”.

“The Abood court failed to appreciate … the conceptual difficulty in public-sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes,” he wrote.

Legal experts said that Alito’s heavy criticism of the precedent of fair-share agreements would open the door to a rush of new legal challenges designed to tear down this pillar of collective bargaining in the public sector. “On the surface, this seems a fairly limited chipping away of union powers,” said Kenneth Dau-Schmidt, professor of labour and employment law at Indiana university. “But the sharp language and disdain for Abood suggests there will be a lot of litigation coming over all this.”



Speaking for the four liberal dissenters, Justice Elena Kagan let out a sigh of relief that Abood had not been thrown out completely which she said was “cause for satisfaction, though hardly applause”. She added, caustically, that “much has gone wrong in today’s ruling, but this has not: Save for an unfortunate hiving off of ostensibly ‘partial-public’ employees, Abood remains the law.”

Kagan wrote that the good news out of this case was that “the court did not, as the petitioners wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought necessary and appropriate to make collective bargaining work.”



But she added that “the bad news is just as simple: The majority robbed Illinois of that choice in administering its in-home care program”.



The ruling will have implications immediately for the SEIU and other public sector unions that represent homeworkers in Illinois and across the country. The sector is rapidly growing with the ageing demographic of the US population and as emphasis switches from institutional to community care.



SEIU’s president Mary Kay Henry said in a statement: "No court case is going to stand in the way of home care workers coming together to have a strong voice for good jobs and quality home care. At a time when wages remain stagnant and income inequality is out of control, joining together in a union is the only proven way home care workers have of improving their lives and the lives of the people they care for."



Mark Mix, president of the National Right to Work Foundation, welcomed the ruling, saying in a statement, “We applaud these homecare providers’ effort to convince the supreme court to strike down this constitutionally-dubious scheme, thus freeing thousands of homecare providers from unwanted union control.”