Without a steady stream of water and electricity, child-care service providers who typically operate out of their own homes could go out of business. Yet, hundreds of Rhode Island residents – not to mention others across the country -- who offer these services must now pay union dues that can be used to support lobbying efforts aimed at securing anti-energy regulations at odds with their best interests.  Help is on the way in the form of First Amendment legal challenges filed in other states that have worked their way up to the U.S. Supreme Court. This means that within a few months it may not be permissible for unions to force child care workers to pay part of their salary to support political campaigns that conflict with their own policy preferences and jeopardize their bottom line. Despite the shifting legal terrain, Rhode Island residents who operate these home-based businesses must still pony up; at least for the time being.

For this, they can thank Rhode Island officials who gave their blessing to an election in October that resulted in the unionization of 540 child care providers. This means independent business owners who service preschool children in their own families and others must now accept the Service Employees International Union (SEIU) as their exclusive representative when petitioning their state government.

“This is a problem,” warns Jennifer Parrish, who runs a child care business out of her home in Minnesota, a state burdened with a similar arrangement. “The SEIU has been an active supporter of cap and trade policies that restrict emissions and restrict energy use. But in our business we need to keep the heat and air conditioner, we have the stove on for cooking and we need to keep the faucet running so the children can wash their hands. The reality is we have high electricity bills and any additional costs could shut down our business. This idea of purchasing credits for energy use under cap and trade is just unworkable for us.”

Parrish is the lead plaintiff in a suit filed with the District Court in Minneapolis, Minn. on behalf of child-care business operators who are challenging the state’s unionization law on First Amendment grounds. Last summer, a federal judge dismissed both the Parrish suit and a separate legal challenge that argued against the Minnesota law on the basis of the 14th Amendment’s “equal protection” clause. But much to the consternation of the American Federation of State County and Municipal Employees (AFSCME), which has spent the past several years working to organize Minnesota’s child-care providers, the Parrish case remains active at the appellate level.  That’s why Mike Stenhouse, president of the Rhode Island Center for Freedom and Prosperity, called on the State Labor Relations Board (SLRB) to cancel the unionization election in his state.

“Our state is looking at a potential legal morass now that the highest court in the land has taken up this question of forced unionization,” he observed. “With unions in our area publicly stating that it is their intention to force themselves onto even more independent business owners and contractors, the SLRB had every opportunity to avoid moving forward with a process that may in the end prove to be unconstitutional.”

On Jan. 21, the U.S. Supreme Court heard oral arguments in Harris v. Quinn, a case out of Illinois that was initially turned back by the Seventh Circuit of Appeals. Pamela Harris, the primary caregiver of her disabled son, and other personal care assistants, are challenging the authority of the Illinois state government to categorize them as public employees. This was accomplished through a series of executive orders and a state law passed in January 2013 that expands the definition of state employees to include Medicaid-funded home care workers. Harris is also advancing a First Amendment challenge against the collection of union dues that intersect with the arguments made in the Parrish case. That’s why the Eighth Circuit Court of Appeals has imposed an injunction against any potential union election in Minnesota. A ruling in favor of the Harris plaintiffs would cancel out that part of Minnesota law that identifies child-care workers as public employees; meaning they could not be coerced in joining public employee unions.

Under Illinois law, the individuals who benefit from the services of personal-care attendants were considered the employer until Gov. Rod Blagojevich stepped in with an executive order that said they would be considered state employees within the realm of collective bargaining, but not in any other areas.

“Since some states can set pay rates and even workman’s compensation for personal attendants there is more of an argument to be made that they are like public employees, even though they are employed by the person receiving the benefit,” Parrish explained. “But child care providers are not anyone’s employee; they are business owners who set their own rates and determine what services they provide. This whole scheme is based on making the appearance that there's some type of employer-employee relationship. With some PCAs, it’s easier to blur those lines because the state does handle some functions an employer would traditionally handle. With child care providers, that’s not the case at all.” 

Certainly, if the high court were to rule that Illinois government officials overstepped their authority by declaring themselves to be the employer of personal attendants that would certainly settle the same question child care workers have raised in Minnesota. But there’s a larger constitutional issued raised in Harris, which could potentially work to the advantage of average citizens who differ with the political views advanced by union leaders in the public sector. Beginning in the mid-20th Century, the Supreme Court essentially carved out an exception to the First Amendment where labor law is concerned in a series of decisions that culminated in the 1977 Abood v. Detroit Board of Education ruling. In interest of maintaining “labor peace,” the Court reasoned, it was necessary to guard against “free-riders” who might dissent from the union position, but still benefit from the collective bargaining process. Since unions were appointed to represent the best interests of all employees in terms of wages, benefits, and working conditions, the Court upheld compulsory dues in earlier rulings such as Railway Employees’ Dept. v. Hanson, (1956) and Machinists v. Street (1961).

However, the Court also made it clear that the dues could not be used to enforce ideological conformity in contravention of the First Amendment. This problem was partially addressed in Abood when a majority of justices ruled that workers could opt out of paying that portion of the dues devoted toward political activism. But the ruling also said that public employees who did not want their unions dues used to support political expenditures still had to pay all of their dues up front. They can ask for a refund of that portion, which is not chargeable under collective bargaining, but the process is highly cumbersome.  This arrangement was later extended to include private unions in the 1986 Communication Workers of America V. Beck ruling.

While the “opt-out” system was set up to safeguard First Amendment rights, it actually creates a perverse set of incentives, according to an amicus brief filed by the Christian Educators Association International (CEAI), which undermines the “freedom of speech” and “freedom of association.”

“The union agenda has changed over time because it no longer has to attract customers,” says Finn Laursen, executive director of the CEAI. “That’s why you see the union leadership pursuing a personal political agenda that is not in the best interests of the rank-and-file workers who they are supposed to represent. If we could get back to a free market system where the union has to market itself and attract customers, it seems to me that would benefit everyone.”

To this end, Lauren’s group has joined forces with 10 public school teachers in California and the Center for Individual Rights (CIR), a public interest law firm in Washington D.C., to file suit against the National Education Association (NEA) and its California affiliate. The legal challenge to the teachers’ unions, which was moved up to the 9th Circuit Court of Appeals in November, takes direct aim at the “agency-shop” statute that compels teachers to pay dues as a condition of employment; even if they decline to join the union. That’s why the real action on the First Amendment may come later.

“With the Harris case it’s not really clear that we are talking about collective bargaining at all since this is really about a very odd state law out of Illinois that says home health-care workers need a union to represent their interests before the legislature when the legislature is crafting new laws, or regulatory agencies are crafting new regulations,” Terry Pell, the CIR president, explains. “So the Court could say this case is not about collective bargaining and that the state has no authority under existing precedent to order these workers to have a union.”

Since the Illinois plaintiffs did call for the Court to overturn Abood, Pell sees an opening for the court to issue “a broad First Amendment signal” in anticipation of the suit filed against the teachers’ unions that stops short of addressing the larger constitutional questions. That’s what Justice Samuel Alito did in his 2012 majority opinion for Knox v.SEIU. Here, Alito made it very clear that the tension between the “opt-out” system and the First Amendment has become untenable.

That’s because the collective bargaining process is itself laced with all kinds of political overtones, Pell argues. The teachers’ unions, for instance, incessantly push for higher wages, during their negotiations with government officials, which are used to fund lavish public employee benefits at taxpayer expense that many rank-and-file teachers do not support, he observes.

 “It’s becoming difficult to distinguish between what is chargeable under collective bargaining and what is a non-chargeable political expense,” Pell says. “What is unique and novel about our case is that we are challenging the mandatory collection of fees.”

Despite the shifting legal landscape, the SEIU, in concert with its allies in state government, went forward with Rhode Island elections because they recognize that the times are a changing and they are desperate to grow union membership, Stenhouse says. He suspects the election process was rigged right from the beginning.

 What should have been an open and transparent process was instead shrouded in secrecy, he laments. At one point the SEIU claimed to have collected signed cards from 80 percent of the providers in Rhode Island, Stenhouse notes. Yet, the SLRB refused to release information to the Center detailing how union operatives were permitted to obtain the signatures.

 “If the SEIU and SLRB are so convinced that they conducted a fair process, why are they afraid of a little sunlight?” he asks. “We have no way of knowing if the home care workers were coerced into casting a ballot for something they do not support. That’s the problem with the card system. Taxpayers and providers have a right to an open, honest election, but that’s not what we had in Rhode Island.”

The forced unionization of child-care workers in Rhode Island is unconstitutional, according to an analysis of the election process by attorneys with National Right To Work (NRTW) who are representing both the Minnesota and Illinois plaintiffs. Thus far, the legal realities have not dissuaded union operatives.

 “Never let the Constitution get in the way of a good unionization scheme; that seems to be the attitude,” Stenhouse says. “The objective here is to collect dues for as long as possible. We have a detailed study that shows how unions have actually harmed the home child care industry. But this isn’t about what’s beneficial for entrepreneurs who offer a valuable service. This is about political power.”

There’s an alternative scenario no one likes to think about, but it’s one that Stenhouse feels he must entertain since union bosses are well-positioned to drive policy in his state. 

If the Court were to rule in favor of the SEIU and AFSCME, he anticipates that the unionization efforts would not end with child-care and health-care providers.

“The next step would be for them to unionize other independent service providers who receive subsidized payments from the state,” Stenhouse predicts. “This would include all kinds of small business owners.”

Since the unions don’t seem inclined toward an incremental approach, there’s an argument to be made that now would be an opportune moment for the Court to reverse earlier rulings that diluted First Amendment rights in an area where they are in desperate need of restoration.