As we have explained, Harris v. Quinn concerns the constitutionality of “fair share” – or “agency fee” – provisions in public sector collective bargaining agreements.  That the constitutionality of agency fee provisions is the question in Harris has been clear throughout the litigation.

Here, for example, is how the seventh circuit described the case in the opinion below:

The plaintiffs in this appeal provide in-home care for people with varying levels of disabilities and other health needs. They present a narrow question: Does a collective bargaining agreement that requires Medicaid home-care personal assistants to pay a fee to a union representative violate the First Amendment, regardless of the amount of those fees or how the union uses them?

And if that’s not clear enough, the court of appeals went on to explain that “the constitutional claim in this appeal is confined to the payment or potential payment of the fair share requirement.”

And, here, from the District Court opinion, is an earlier statement of the question at issue in Harris:

Plaintiffs . . . provide services to disabled participants in the Rehabilitation Program and allege that Defendant SEIU . . . violated the constitutional rights of these Plaintiffs by compelling them to pay SEIU compulsory union fees.  [Additional p]laintiffs . . . provide services to disabled participants in the Disabilities Program.  The Disabilities Plaintiffs allege that Defendant Governor Pat Quinn . . ., SEIU. . ., and AFSCME . . . violated the constitutional rights of the Disabilities Plaintiffs by threatening to compel them to financially support either SEIU . . . or AFSCME.

But, before the Supreme Court, the Harris petitioners have moved rather dramatically beyond the question that was raised and litigated below.  In their argument to the Supreme Court, the petitioners are now arguing not (merely) that mandatory fees are unconstitutional, but that the traditional system of exclusive representation is itself unconstitutional.  Thus, the petitioners’ brief contends that “Illinois has no compelling interest in designating an exclusive representative for homecare providers.”   It argues that “[i]f the government purports to require exclusive representation as an employer, it must demonstrate that this exclusive representation is necessary to its efficient internal operations and is narrowly tailored to that end.”  And it contends that “individuals cannot be exclusively represented for the purpose of lobbying government over public policies affecting their profession.”

Most strikingly, the petitioners’ brief concludes by arguing that “the case [be] remanded with instructions to find Illinois’ exclusive-representation laws unconstitutional.”

There is a significant difference between fair share or agency fees, on the one hand, and exclusive representation on the other.  A fair share or agency fee is a provision in a collective bargaining agreement that requires employees to pay to the union, as a condition of employment, fees equivalent to the dues that union members pay for collective bargaining and contract administration services.  For example, if a union member pays $10 per month in dues and 80% of the union’s budget goes to bargaining and administering the collective agreement, then a fair share provision requires employees who do not become union members to pay $8 per month to the union. As the Supreme Court has itself repeatedly recognized, these provisions allow unions to overcome what would otherwise be a potentially crippling free rider problem.  (A fair share provision can never require anyone to pay fees to cover the union’s non-collective bargaining work, including its political work.)  It is the constitutionality of these types of dues arrangements that the Court upheld in Abood and that the petitioners litigated below.

Exclusive representation is different than agency fees.  Exclusive representation means that if a majority of the workers in a given bargaining unit votes for a union, then the union must represent everyone in the bargaining unit – whether they voted for the union or not.  It also means that everyone in the unit – whether they voted for the union or not – is covered by the collective agreement that the union bargains.

As such, a challenge to the permissibility of agency fees is quite different than a challenge to the permissibility of exclusive representation.   These two challenges raise different constitutional questions, implicate different lines of doctrine, call into question different state interests, and have significantly different implications for public sector labor relations (most obviously, if the Court found that agency fees were unconstitutional, exclusive representation could continue to exist).

Only the first challenge – to agency fees and not to exclusive representation – was raised and litigated below.  Neither the district court nor the court of appeals was presented with, nor did they consider, a constitutional challenge to exclusive representation.  The petitioners’ complaint did not attack exclusive representation, only the fair share requirement.  As such, the petitioners’ challenge to exclusive representation is the type of claim that the Court typically does not address.

This is not to say, of course, that agency fees and exclusive representation are unrelated to one another.  Most importantly, given a system of exclusive representation, agency fees are (and ought to continue to be) a permissible way for a state to fund that system.  That’s the thrust not only of Abood and its progeny, but also of Keller (as we’ve noted before), and is reflected in how United Foods reads Abood and Keller (e.g., “the compelled contribution of monies to pay for expressive activities [was] a necessary incident of a larger expenditure for an otherwise proper goal requiring the cooperative activity”).  But this connection between agency fees and exclusive representation does not change the fact that only fees have been challenged in the Harris litigation.