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The death of Justice Antonin Scalia—resulting in an even split between liberal and conservative justices on the U. S. Supreme Court—has led to a victory for public-sector unions.
The high court issued a 4-4 ruling on March 29, affirming without decision an opinion of the 9th U.S. Circuit Court of Appeals that public-sector unions in California can require public workers to pay union fees.
Before Scalia’s death, most court observers were predicting a 5-4 decision, overturning the 9th Circuit ruling.
First Amendment Challenge
Ten California public school teachers sued the California Teachers Association, the National Education Association and their local unions in April 2013, challenging the agency shops and “opt out” procedures the unions maintain under state law.
Teachers who do not join the union must pay “fair share” fees to cover their pro rata costs of the union's expenses for bargaining, contract administration and grievance adjustment, including lobbying costs related to bargaining, the employees said. Each year, the union sends a notice of “non-chargeable” fees related to political activities for which nonmembers cannot be forced to pay. But nonmembers must affirmatively “opt out” of that portion of the fee or risk being assessed for the union's political expenditures, the employees said.
The district court ruled for the unions, and the 9th Circuit summarily affirmed, citing a 1977 Supreme Court case, Abood v. Detroit Bd. of Education, 431 U.S. 209 (U.S. 1977), which held that agency shop arrangements in the public sector do not violate the First Amendment if nonmembers' agency fees go solely toward the costs of bargaining, contract administration and grievance adjustment.
Prior to Scalia’s death, court watchers expected the high court to reconsider its Abood decision, but, at least for now, the almost 40-year-old precedent remains standing.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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