Subsidized Child-care Providers Test Limits of Association Rights


Does the First Amendment protect individuals from being exclusively represented by a union in bargaining over government vouchers for child-care services that they provide in their homes?

The National Right to Work Legal Defense Foundation, Inc. and a group of providers recently argued that it does, but a federal district judge in Massachusetts didn’t buy it. D’Agostino v. Patrick, 202 LRRM 3514, 2015 BL 68967 (D. Mass. 2015).

Following on the heels of Harris v. Quinn, 199 LRRM 3741, 2014 BL 180311 (U.S. 2014), the claim appeared to be testing the limits of the U.S. Supreme Court’s holding that it is unconstitutional for a state to compel workers who are not fully-fledged public employees to pay fair-share fees.

The dispute began in 2012 when Governor Deval Patrick signed “An Act Relative to Early Childhood Education and Care by Family Child Care Providers.”

The act defines a provider as a person “who provides family child care services on behalf of low-income and other at risk children and receives payment from the Commonwealth for such services pursuant to a rate structure for voucher and contracted payments.”

Providers are defined as state employees for the limited purpose of collective bargaining, and the act allows them to elect a union as an exclusive representative for bargaining over mandatory subjects, like the rate structure for voucher payments.

The act also protects providers’ “right to refrain” from joining the union. It makes it a prohibited practice to restrain or coerce an employee to join.

Providers have the right to bypass the union and present their grievances directly to the Massachusetts Department of Early Education and Care (EEC), though the union does have an opportunity to be present.

After SEIU was certified as the exclusive representative for providers, EEC entered into a labor contract that remains in effect through June 30, 2016.

With legal help from the National Right to Work Legal Defense Foundation, Inc., a group of providers sued, arguing that the act “thrusts them into a mandatory agency relationship” that violates their freedom of association under the First Amendment.

As the plaintiffs saw it, because the U.S. Supreme Court held it unconstitutional to compel payment of fair-share fees by workers who are not fully-fledged public employees, a state likewise cannot compel such workers to accept a union as their exclusive representative.

Dismissing, U.S. District Judge Leo Sorokin refused to go that far with the reasoning of Harris.

Instead, he observed that the Harris court noted that “[a] union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked.”

SEIU, Sorokin pointed out, derives its role from a majority vote, not a mandatory participation process requiring consensus. So there is little chance that any outsider would be led to believe that providers have accepted any SEIU message.

Providers, he reasoned, are free to communicate with the state on their own or with any association they choose.

Though the case suggests limits on the reasoning of Harris, it does so on easy facts that don’t show a true conflict between individual association rights and state laws aimed at regulating collective bargaining among workers who are neither full-fledged public employees nor covered by the National Labor Relations Act.

Would a court uphold a similar arrangement that did not so clearly give workers room to opt out? That might require the extra balancing act that the National Right to Work Legal Defense Foundation, Inc. seeks to see applied.

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