Cook County Record

Saturday, December 14, 2019

Illinois can choose SEIU to represent all home caregivers in negotiations: Appeals court

By Jonathan Bilyk | Mar 9, 2017

Chicago federal courthouse flamingo from rear

The state of Illinois doesn’t trample on the rights of non-union home care providers by forcing them to abide by the terms of deals it strikes with a union over care provider pay rates and other terms of the care providers’ “employment,” a federal appeals court has ruled.

On March 9, a three-judge panel of the U.S. Seventh Circuit Court of Appeals sided with the Service Employees International Union in its dispute with a group of home-based providers of personal care for those with disabilities and child care providers, saying the union can serve as the state-recognized representative of those caregivers, against the care providers’ wishes.

“Illinois has legitimate interests in hearing the concerns of providers when deciding what employment terms to offer them, and in having efficient access to this information,” the Seventh Circuit judges wrote.  “Negotiating with one majority-elected exclusive bargaining representative seems a rational means of serving these interests.”

The ruling serves as the latest setback for caregivers, represented by public interest law firms seeking to extend the scope of a recent U.S. Supreme Court ruling striking down as unconstitutional fees collected by the state on behalf of the union from non-union caregivers.

Plaintiffs in this action filed suit in 2015, in the wake of the Supreme Court’s decision in Harris v. Quinn, asking the federal courts to apply the court’s findings in that case to other aspects of the independent caregivers’ relationship with the union and the state of Illinois under the Illinois Public Labor Relations Act.

Specifically, the caregivers, represented by attorneys with the National Right to Work Legal Defense Foundation, of Springfield, Va., and the Liberty Justice Center, of Chicago, asked the court to end the state’s practice of allowing the SEIU to negotiate on behalf of all home-based caregivers in the state, whether they belonged to the union or not.

While the caregivers are not “full-fledged” employees of the state, the IPLRA law designates them as “public employees” for the purposes of setting the rates under which the state will pay them for care they provide under state assistance programs for child care and for state residents with disabilities requiring home-based “personal assistants.”

The caregivers argued the state’s practice under the IPLRA violated their constitutional rights, by effectively forcing them to associate with the union, an organization whose policies, practices and political persuasions they may disagree with.

In May 2016, however, U.S. District Judge Manish Shah dismissed their lawsuit, declaring the Harris decision should be limited only to the compulsory collection of fees, and should not extend to the state’s choice of bargaining representatives.

“The state may not endorse taking fees from non-employees without consent,” Shah wrote. “But its choice to listen only to an exclusive representative does not infringe on anyone’s associational rights.”

On appeal, the Seventh Circuit judges backed Shah, saying the state’s decision to recognize the SEIU as the sole bargaining representative doesn’t infringe the non-union caregivers’ freedom of association.

The judges noted the Illinois law allows the non-union caregivers “to present their own grievances to the State, publicly oppose the SEIU, and associate with whomever they want, without retaliation from the union.”

“In effect the IPLRA authorizes Illinois to listen to only one voice before deciding pay rates, hours, and other key work conditions for the providers, and allows a majority of a given bargaining unit to select that voice.”

The decision noted a majority of Illinois caregivers voted to select the SEIU as their representative to the state.

The judges said Harris does not alter their view in this case, as the decision only struck down the “mandatory fee provision” of the IPLRA, “and left the balance of the act intact.”

“The Court held that requiring non-full-fledged public employees to pay fees supporting the union interfered with the employees’ associational rights and did not serve a compelling governmental interest,” the judges wrote. “Yet, though the Court was aware of the entire statutory scheme, it focused almost exclusively on the mandatory-fee provisions.

“Thus, Harris did not speak to the constitutionality of the exclusive-bargaining-representative provisions of the IPLRA.”

Seventh Circuit Judge Joel M. Flaum wrote the opinion of the court. Circuit Judge William J. Bauer and District Judge James E. Shadid, of the U.S. District Court for the Central District of Illinois, concurred.

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Organizations in this Story

State of IllinoisLiberty Justice CenterU.S. District Court for the Central District of IllinoisU.S. Court of Appeals for the Seventh CircuitService Employees International UnionNational Right to Work Foundation