Rebecca Hill v. Service Employees Internationa , 850 F.3d 861 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2327
REBECCA HILL, et al.,
Plaintiffs-Appellants,
v.
SERVICE EMPLOYEES INTERNATIONAL UNION, HEALTHCARE
ILLINOIS, INDIANA, MISSOURI, KANSAS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CV 10175 — Manish S. Shah, Judge.
____________________
ARGUED DECEMBER 7, 2016 — DECIDED MARCH 9, 2017
____________________
Before BAUER and FLAUM, Circuit Judges, and SHADID, Dis-
trict Judge.*
FLAUM, Circuit Judge. Appellants, home healthcare and
childcare providers, challenge the exclusive-bargaining-rep-
resentative provisions of the Illinois Public Labor Relations
* Of the Central District of Illinois, sitting by designation.
2 No. 16-2327
Act, 5 Ill. Comp. Stat. 315/1 et seq. (“IPLRA”). Appellants ar-
gue that the statutory scheme violates their First Amendment
associational rights. The district court dismissed their com-
plaint for failing to state a claim. We affirm.
I. Background
Appellants provide home-based personal care and child-
care services under various programs administered by Illinois
agencies. The Home Services Program (“HSP”), 20 Ill. Comp.
Stat. 2405/3(f), pays about 25,000 “personal assistants” who
help “customers” with basic living needs. The customers are
responsible for hiring and supervising the personal assistants,
and the State of Illinois pays the assistants. See generally Harris
v. Quinn, — U.S. —, 134 S. Ct. 2618, 2623–25 (2014). Illinois’
Child Care Assistance Program (“CCAP”), 305 Ill. Comp. Stat.
5/9A-11, subsidizes childcare services for low-income and at-
risk families. Parents choose their own providers and contrib-
ute to the cost if financially able. The program pays about
60,000 childcare providers. We refer collectively to the people
working under these programs as “providers.”
The IPLRA generally allows public employees in a bar-
gaining unit to choose, by majority vote, an exclusive bargain-
ing representative to negotiate with the State over employ-
ment terms. See 5 Ill. Comp. Stat. 315/3(f); id. 315/9(a-5).1
1 Home healthcare and childcare providers are unlike many public
employees, because the providers are defined as public employees only
for purposes of the IPLRA. 5 Ill. Comp. Stat. 315/3(n). As a result, they are
not considered “full-fledged” public employees. Harris, 134 S. Ct. at 2638.
However, under the IPLRA the providers still choose exclusive bargaining
representatives.
No. 16-2327 3
A majority of both HSP and CCAP providers chose defend-
ant-appellee Service Employees International Union (“SEIU”)
as their exclusive bargaining representative. Though the SEIU
bargains with Illinois over key employment terms for the pro-
viders, they are under no obligation to join the SEIU or pay
dues.2 The SEIU cannot discriminate against a provider be-
cause of his or her membership in a labor union, or lack
thereof. Id. 315/10(a)(2). Thus, providers are able 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 lis-
ten to only one voice before deciding pay rates, hours, and
other key work conditions for the providers, and allows a ma-
jority of a given bargaining unit to select that voice.
Appellants sued the SEIU and Illinois officials under
42 U.S.C. § 1983. The providers alleged that the IPLRA vio-
lates the First and Fourteenth Amendments because, by au-
thorizing the SEIU to bargain on behalf of HSP and CCAP
providers, the statute forces appellants into an agency-like as-
sociation with the SEIU. They sought declaratory and injunc-
tive relief prohibiting the HSP and CCAP bargaining units
from choosing bargaining representatives.
Defendants-appellees moved to dismiss the complaint for
failure to state a claim. The district court granted the motion,
holding that “plaintiffs’ theory runs counter to the established
principle that a state does not infringe on associational rights
2 Previously, the IPLRA contained a mandatory fee provision requir-
ing HSP and CCAP bargaining-unit members to pay union dues. How-
ever, that part of the statute was struck down in Harris as creating an un-
constitutional mandatory association between the providers and SEIU.
134 S. Ct. at 2639–40.
4 No. 16-2327
by requiring the type of exclusive representation at issue
here.” Hill v. Serv. Emps. Int’l Union, Healthcare Ill., Ind., Mo.,
Kan., No. 15 CV 10175, 2016 WL 2755472, at *1 (N.D. Ill. May
12, 2016).
II. Discussion
We review de novo a district court’s grant of a motion to
dismiss. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 382
(7th Cir. 2016). Federal Rule of Civil Procedure 12(b)(6) per-
mits a motion to dismiss a complaint for failure to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
“To properly state a claim, a plaintiff’s complaint must con-
tain allegations that plausibly suggest that the plaintiff has a
right to relief, raising that possibility above a speculative
level.” Kubiak v. City of Chi., 810 F.3d 476, 480 (7th Cir.), cert.
denied sub nom. Kubiak v. City of Chi., Ill., 137 S. Ct. 491 (2016)
(internal quotation marks and citation omitted). “We accept
as true all of the well-pleaded facts in the complaint and draw
all reasonable inferences in favor of plaintiff[s-appellants].”
Id. at 480–81.
The First Amendment encompasses both the freedom to
associate and the freedom not to associate. Knox v. Serv. Emps.
Int’l Union, Local 1000, 567 U.S. 298, 132 S. Ct. 2277, 2288,
(2012) (citing Roberts v. United States Jaycees, 468 U.S. 609, 623
(1984)). Mandatory associations are subject to exacting scru-
tiny, meaning they require a compelling state interest that
cannot be achieved through significantly less-restrictive
means. Id. at 2289. Appellants argue that the IPLRA creates a
mandatory association subject to heightened scrutiny. How-
ever, case law forecloses such an argument.
No. 16-2327 5
In Minnesota State Board for Community Colleges v. Knight,
465 U.S. 271 (1984), the Supreme Court held that a Minnesota
law giving elected bargaining units exclusive power to “meet
and confer” with employers did not interfere with the em-
ployees’ First Amendment associational rights. Id. at 273. The
Court found that the challenged laws “in no way restrained
appellees’ freedom to speak … [or] to associate or not to asso-
ciate with whom they please, including the exclusive repre-
sentative.” Id. at 288 (emphasis added). Noting that the plain-
tiffs were free to form advocacy groups and were not required
to join the union, the Court reasoned that any “pressure to
join the exclusive representative … [was] no different from
the pressure to join a majority party that persons in the mi-
nority always feel … [and did] not create an unconstitutional
inhibition on associational freedom.” Id. at 289–90 (footnotes
omitted). Similarly, here, appellants do not need to join the
SEIU or financially support it in any way. They are also free
to form their own groups, oppose the SEIU, and present their
complaints to the State. Thus, under Knight, the IPLRA’s ex-
clusive-bargaining-representative scheme is constitutionally
firm and not subject to heightened scrutiny.
Harris does not alter this proposition. In Harris, the Su-
preme Court assessed the IPLRA (the same law at issue here),
struck down its mandatory-fee provision, and left the balance
of the act intact. See generally 134 S. Ct. 2618. In so doing, the
Court declined to extend Abood v. Detroit Board of Education,
431 U.S. 209 (1977) (upholding a mandatory union fee for non-
union-member teachers) beyond applying to “full-fledged”
public employees. 134 S. Ct. at 2638. The Court also reasoned
that personal assistants are not full-fledged public employees,
because they are considered public employees only for pur-
poses of the IPLRA, and not in other contexts. Id. at 2635–36.
6 No. 16-2327
The Court held that requiring non-full-fledged public em-
ployees to pay fees supporting the union interfered with the
employees’ associational rights and did not serve a compel-
ling governmental interest, id. at 2639–40 (citing Knox, 567
U.S. 298, 132 S. Ct. at 2289; Roberts, 468 U.S. at 623). Yet, though
the Court was aware of the entire statutory scheme, it focused
almost exclusively on the mandatory-fee provisions. See id. at
2640 (“Nor do [plaintiffs] challenge the authority of the SEIU[]
to serve as the exclusive representative of all the personal as-
sistants in bargaining with the State. All they seek is the right
not to be forced to contribute to the union, with which they
broadly disagree.”). Thus, Harris did not speak to the consti-
tutionality of the exclusive-bargaining-representative provi-
sions of the IPLRA.
Other courts examining similar challenges and state pro-
grams have also concluded that Harris did not limit Knight’s
approval of exclusive bargaining representatives. D’Agostino
v. Baker, 812 F.3d 240, 244 (1st Cir.) (Souter, J., by designation),
cert. denied, 136 S. Ct. 2473 (2016) (“What Harris did not speak
to, however, was the premise assumed and extended in
Knight: that exclusive bargaining representation by a demo-
cratically selected union does not, without more, violate the
right of free association on the part of dissenting non-union
members of the bargaining unit.”); see also Jarvis v. Cuomo, 660
F. App’x 72, 74–75 (2d Cir. 2016), cert. denied, No. 16-753,
— S. Ct. —, 2017 WL 737827 (U.S. Feb. 27, 2017) (“Harris ad-
dressed only the narrow question of whether individuals who
were neither full-fledged state employees nor union members
could be required to pay fair share fees to their bargaining
unit’s exclusive representative; it did not consider the consti-
tutionality of a union serving as the exclusive representative
of non-full-fledged state employees in bargaining with the
No. 16-2327 7
State. Thus, Harris does not relieve us from the duty to follow
Knight even where, as here, plaintiffs are not full-fledged state
employees.”) (internal citations, brackets, and quotation
marks omitted); Bierman v. Dayton, No. CV 14-3021 (MJD/LIB),
2017 WL 29661, at *7 (D. Minn. Jan. 3, 2017) (similar).3 In short,
the IPLRA’s authorization of a majority-elected exclusive bar-
gaining representative does not compel an association that
triggers heightened First Amendment scrutiny.
Appellants argue that this case is akin to several Supreme
Court association cases employing heightened scrutiny. Ap-
pellants’ Br. at 11–12 (citing Elrod v. Burns, 427 U.S. 347, 362–
63 (1976) (termination due to employee’s political affiliation
triggers heightened scrutiny); O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712, 714–15 (1996) (same for independent
government contractors); Roberts, 468 U.S. at 623 (forced ad-
mittance of female club members triggers heightened scru-
tiny); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos.,
515 U.S. 557, 577–78 (1995) (parade organizers could not be
required to include among marchers a group imparting a
3 Appellants argue that this Court should disregard the above author-
ity and instead rely on Mulhall v. UNITE HERE Local 355, 618 F.3d 1279
(11th Cir. 2010). However, Mulhall is distinguishable from this appeal. In
that case, the Eleventh Circuit held that a plaintiff had standing to chal-
lenge the impending forced unionization of his company. Aside from the
fact that Mulhall did not address the merits of the plaintiff’s claims, id. at
1288, the associational-interest analysis turned on employees being forced
to belong to a union, id. (“while compulsory affiliation with a union does
not, without more, violate the First Amendment rights of employees, it is
no less true that compelling an employee to belong to a union implicates
that person's First Amendment right not to associate”) (internal citations,
quotation marks, and alterations omitted). In this case, there is no allega-
tion that appellants are forced to join—or even support—the SEIU.
8 No. 16-2327
message the organizers did not wish to convey absent “a com-
pelling, or at least important, governmental object”); Boy
Scouts of Am. v. Dale, 530 U.S. 640, 656, 658–59 (2000) (“forced
inclusion of an unwanted person in a group” triggers height-
ened scrutiny)). However, these cases are inapposite. As the
First Circuit explained in D’Agostino in assessing a substan-
tially similar state program, exclusive bargaining representa-
tion does not rise to the level of the above cases, as providers
“are not compelled to act as public bearers of an ideological
message they disagree with[,] … accept an undesired member
of any association they may belong to, … [or] modify the ex-
pressive message of any public conduct they may choose to
engage in.” 812 F.3d at 244 (internal citations omitted). We
agree with this reasoning; the IPLRA’s exclusive-bargaining
provision does not create associations like those the Supreme
Court has found to be constitutionally problematic.4
As the IPLRA does not create a mandatory association, it
is not subject to heightened scrutiny. And appellants do not
argue that the IPLRA would fail rational-basis scrutiny. Illi-
nois has legitimate interests in hearing the concerns of pro-
viders when deciding what employment terms to offer them,
and in having efficient access to this information. Negotiating
with one majority-elected exclusive bargaining representative
seems a rational means of serving these interests. See Knight,
465 U.S. at 291.
4 Because we hold that the IPLRA does not give rise to a mandatory
association, we decline to address appellants’ argument that the IPLRA
gives Illinois “untrammeled authority … to designate mandatory agents
to speak and contract for citizens in their relations with government.”
No. 16-2327 9
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.