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California public-school teachers claimed that compulsory
union dues are unconstitutional.
The Supreme Court won't rehear an appeal brought by California public-school teachers who claimed that compulsory union dues payments are unconstitutional (Friedrichs v. Cal. Teachers Ass'n, No. 14-915, rehearing denied June 28). The teachers claimed that the terms of a collective bargaining agreement, which required nonmembers in the bargaining unit to pay agency fees to a union, violated their First Amendment rights to free speech and association.Following Justice Antonin Scalia's death, a deadlocked Supreme Court voted 4-4 on the issue, leaving intact Supreme Court and 9th U.S. Circuit Court of Appeals precedent that allows for such agency-fee arrangements, which are sometimes referred to as "fair share" agreements.
Debate Expected to Continue
Nearly 40 years ago, in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the high court held that agency fees don't violate public-sector employees' First Amendment rights if nonmember fees are used only for the costs of bargaining, contract administration and grievance adjustment—rather than for political activities aimed to influence policymakers.The teachers argued in their petition for rehearing that collective bargaining is political in nature. The disputed fees "implicate hundreds of millions of dollars flowing to organizations that spend those dollars advocating on matters of clear public concern," they said.The California Teachers Association and other defendants in the case, however, argued that if Abood was overruled, public-sector unions would face the substantial cost of representing all employees in the unit without being able to collect dues from nonmembers. Unions contend that requiring nonmembers to pay their "fair share" eliminates the potential for too many "free riders" who reap the benefits of collective bargaining without contributing for the expenses.The justices declined to rehear the case, but the hotly debated issue is likely to reach the high court again."This is a big constitutional issue," Howard Bloom, an attorney with Jackson Lewis in Boston, told SHRM Online. There has been a lot of publicity about this issue, and there are several cases pending in other courts that raise a similar dispute. "It's going to make its way back to the Supreme Court at some point," he said.
California Permits 'Agency-Shop' Arrangements
California law permits a union to become the exclusive bargaining representative for public-sector employees in a particular bargaining unit, such as a school district. Under a collective bargaining agreement, the union may establish an "agency-shop" arrangement that requires employees to either join the union or pay a "fair share service fee" in an amount that is generally equivalent to union dues.Nonmembers may opt out of paying any portion of the agency fees that aren't used for activities "germane" to collective bargaining. Lead plaintiff Rebecca Friedrichs and several other public-school teachers didn't agree with all of their union's views. They argued that being forced to pay fees in support of a union violated their rights to free speech and association.At a minimum, the teachers said, they shouldn't be required to annually opt out of paying for non-chargeable activities like lobbying and other political endeavors.The justices' deadlock in the matter, however, means that the Abood decision permitting agency-shop agreements will continue to be controlling precedent, at least for now.
Scalia's Vote May Have Changed Outcome
"Based on Justice Scalia's questions and comments at oral argument, it very much looked like he was going to rule in favor of the [teachers]," Bloom said. After oral argument, many people who were closely watching the case expected there to be a 5-4 ruling in favor of the teachers, he explained. That would have meant that unions could no longer require nonmembers to pay agency service fees, which could have had a huge financial impact on public-sector unions. Thus, Scalia's absence from the court likely saved public-sector unions, "at least until the next case seeking to overturn Abood makes its way to the Supreme Court," Bloom said.
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