Employment Law Daily Supreme Court punts 4-4 on public-sector agency fees
Thursday, March 31, 2016

Supreme Court punts 4-4 on public-sector agency fees

By Joy P. Waltemath, J.D. In a widely anticipated 4-4 ruling, the U.S. Supreme Court summarily upheld a Ninth Circuit opinion that allows public-sector unions to collect agency fees. Conventional wisdom was that Justice Scalia would have provided the deciding vote in the case, which was expected to overturn the Court’s 1977 precedent in Abood v. Detroit Board of Education (Friedrichs v. California Teachers Association, March 29, 2016, per curiam). The closely watched case had critical implications for public-sector unions and their ability to remain viable. The increasing number of right-to-work laws in many states now bar requirements that employees either join a union or pay a fair-share service fee—an "agency fee"—that is generally the same amount as union dues. The petition for certiorari in the Friedrichs case had questioned whether public-sector employees could be forced to pay agency fees, which is currently permitted under California law. Motion for rehearing. The petitioner teachers have already signaled they will file a motion for rehearing so that the full Court, including its new Justice, can hear and decide the case. The Center for Individual Rights (CIR) announced the strategy on February 17, saying that it’s likely a rehearing would be slated during the Court’s next term, beginning October 2016, delaying by a year final resolution of the case. The teachers want the Court to hold that individuals who benefit from union activities but who do not want to join a union may not be required to pay fair-share fees pursuant to agency-shop arrangements between the employer and the union. That result, according to some experts, could be the beginning of the end for most unions, public and private. "The Friedrichs case is one of the most important First Amendment cases to come before the Supreme Court this term," CIR President Terry Pell said in a statement earlier this year. "The stakes are big for the tens of thousands of teachers, firefighters, nurses, child services workers, and other unionized public employees who are required to pay dues to organizations with which they fundamentally disagree. The outcome is no less important for the thousands of public employee unions that have come to depend on state-enforced dues." Authoritative decision sought. The CIR said it wants to ensure that the Court can render an authoritative decision. Pell said that a union cannot claim that it represents the interest of all workers if there continues to be doubt about the constitutionality of the "forcible collection of millions of dollars in dues." He framed the issue this way: "Either compulsory dues are an acceptable exception to the First Amendment or they are not. The Court needs to decide this question." Left to fight another day. Patrick Semmens, vice president of the National Right to Work Foundation, noting the organization’s disappointment in the deadlock, said that "an evenly split court always seemed like the most likely outcome after the sudden passing of Justice Scalia. Today’s order means Rebecca Friedrichs’ case probably won’t be the one to finally free public servants from being forced to fund the activities of union bosses as just to work for their own government, but the issue is not going away and could return to the High Court soon." He went on to note that his organization’s attorneys "already have five cases working their way through the court system asking that mandatory union dues and fees be struck down as a violation of employees’ First Amendment rights." And there are other cases challenging public sector agency fees. "Because the 4-4 split in Friedrichs has no precedential legal value, we fully expect the constitutionality of forced unionism to be back before the Supreme Court before too long," Semmens remarked. AFGE weighs in. American Federal of Government Employees National President J. David Cox, Sr., pointed out that "When the union negotiates a contract for workers, everyone who’s covered by that contract takes home higher pay and benefits, has greater job security, enjoys improved health and safety standards, and gets help in settling workplace disputes. It is only fair that all employees share in the cost of securing those benefits. A decision by the Supreme Court to overturn its 1977 ruling would have made it grossly unfair to place the burden of paying for the level of representation that all employees need and deserve on only some public employees as opposed to asking each to pay a fair share."

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