By Pamela Wolf, J.D. If the Supreme Court moves ahead on the labor case that is on the radar of public and private employers and unions alike for its potential to do away with agency shop arrangements and fair share fees, and the Justices are split 4-4, the teachers in Friedrichs v. California Teachers Association 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), which, along with lead counsel Michael Carvin of Jones Day, represents the teachers, 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. High stakes on both sides. The very recent death of Antonin Scalia may have tipped the scales enough to render the Justices tied 4-4 on the outcome of the controversial case, which will potentially have a huge impact on the future of unions. The Justices could determine that individuals who, although they benefit from union activities, may not want to join the union, could not be required to pay fair share fees pursuant to agency shop arrangements between the employer and the union that would require them to do so. 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. “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. The CIR said it wants to ensure that the Court can render an authoritative decision. Justice Scalia’s death changed what many constitutional experts and Court-watchers assumed would be a 5-4 decision in favor of the teachers opposing the public employee agency shop arrangement under which they must pay union fees, according to the CIR. With only eight Justices now sitting on the Court, expectations have shifted so that many observers believe a decision rendered this term would be a 4-4 tie, leaving the lower court ruling in place and providing no precedential weight. The Court has the option of setting the case, which was argued on January 11, for re-argument next term. However, if the Court instead issues a 4-4 decision, the lawyers for Friedrichs say they will file a motion for rehearing so that the full Court, along with the Justice who will replace Justice Scalia, can hear and decide the case. The CIR pointed to the purpose of holding a case for re-argument, which it called “well settled”—the parties and the country deserve an authoritative decision by the full Court, especially in a closely contested matter involving fundamental individual rights. The CIR noted that there are many instances in the last several decades where the Court has re-heard cases already argued once a new Justice has joined the bench. 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.”
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