Employment Law Daily Justices leave public-sector agency fee battle for another day
Thursday, June 30, 2016

Justices leave public-sector agency fee battle for another day

By Pamela Wolf, J.D. The Supreme Court will not rehear the case that, in the wake of Justice Scalia’s death, sparked controversy by its 4-4 ruling and left a Ninth Circuit opinion permitting public-sector unions to collect agency fees summarily upheld. Many observers had expected Scalia’s vote to tip scales to overturn the Court’s 1977 precedent in Abood v. Detroit Board of Education allowing those agency shop arrangements. The public interest law firm that represented teachers in the case had hoped the case would be reheard with a full panel of Justices, but the Court denied rehearing in a June 28 order. Agency shop fees challenged. The petition for certiorari had raised the contentious question of whether state employees may be compelled to pay so-called "fair share" fees to public-sector unions—a question that could affect the very survival public-sector unions. Many labor and employment practitioners expected the Justices to take on the issue in the wake of the Court’s Harris v. Quinn ruling in June 2014, which questioned the precedent in Abood v. Detroit Board of Education. The Court was offered an opportunity to squarely re-examine that precedent but was thwarted in its ability to do so due Justice Scalia’s unfortunate death and, at least arguably, by the subsequent refusal of Republican lawmakers to take up consideration of President Obama’s nominee, Merrick Garland, to fill the High-Court vacancy. The plaintiff teachers in the case asserted that California’s agency shop arrangement and opt-out procedures for non-chargeable union expenditures violated their free speech and association rights under the First and Fourteenth Amendments to the U.S. Constitution. The case directly implicated Abood to the extent that a district court in California entered judgment on the pleadings in favor of the California Teachers Association and the Ninth Circuit summarily affirmed. Rehearing bid. In the aftermath of the Court’s March 29, 2016, 4-4 ruling in Friedrichs v. California Teachers Association, the attorneys for nine California teachers filed a petition on April 8 asking the Court to rehear arguments. The rehearing request on behalf of the teachers was filed by public interest law firm Center for Individual Rights (CIR) and Jones Day attorneys. At the time, CIR President Terry Pell said "We can’t leave this issue for another time. The Court has already agreed to decide this case and it should hold the case until it can issue a definitive decision. A tie is simply not good enough when it comes to fundamental issues like the First Amendment." "Greatly disappointed" by the rehearing denial, CIR quickly issued a statement, saying, "We continue to believe that forcing individuals to subsidize political speech with which they disagree violates the First Amendment. We will look for opportunities to challenge compulsory union dues laws in other cases and continue our efforts to stand up for the rights of teachers and public sector workers across the country." Questions left open. The questions that the Justices have left for another day are whether: (1) Abood should be overruled and public-sector agency shop arrangements invalidated on First Amendment grounds; and (2) it is a First Amendment violation to require public employees to affirmatively object to subsidizing non-chargeable speech by public-sector unions rather than requiring them to affirmatively consent to such speech.

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