In a 4 – 4 split decision, the Supreme Court handed a major victory to public unions this week by maintaining the current state of labor law, which allows public unions to collect certain fees from non-members so that these unions can engage in collective bargaining on behalf of all employees.

The Supreme Court had granted certiorari to review the lower court’s ruling in Friedrichs v. California Teachers Association.  But, in the wake of conservative Justice Antonin Scalia’s death in February, there is a vacuum in the Supreme Court that has impacted this case and will likely impact other cases this year until a new justice is appointed.

Here, there was likely a deadlock between the four liberal justices on the Court, including Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, and the four conservative justices left on the bench, including Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Samuel Alito Jr. and Clarence Thomas.  (The Supreme Court does not publicly release the dispositions of the justices in tie decisions like this).  The tie decision effectively affirmed the appeals court’s decision favoring the union and thus gave the unions a win by default.  However, the tie decision sets no precedent, thus leaving room for future challenges.

The lawsuit was brought by the libertarian Center for Individual Rights (“CIR”), which states on its Web site that its mission is “the defense of individual liberties against the increasingly aggressive and unchecked authority of federal and state governments.”[1]  CIR argues that non-union members’ First Amendment rights are being violated because they are being forced to pay fees to a union that they have chosen not to join, and this abridges their rights to free speech and free association.

Meanwhile, union advocates say that the First Amendment argument is just a ruse by the far right to decimate the power of public unions at a time when membership numbers and resources are low.  They also say that the fees in question will prevent “freeloaders” from reaping the benefits of the union’s activities on their behalf without paying for any of the costs.  After all, a union must legally represent all employees, both members and non-members alike, when it engages in collective bargaining.

Under California law, public employees are required to pay a “fair share service fee,” also known as an “agency fee” to the unions that represent them, even if they are not members of these unions.  The fee is meant to cover the costs that the unions incur in negotiating for better wages and benefits and for other collective bargaining activities.  There are similar “agency fee” laws in more than 20 states.

If the Court had not affirmed the lower court’s ruling, and had instead ruled that non-union employees should not be required to pay these agency fees, this would have overruled the precedent set by Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.  In that case, the Supreme Court ruled that agency fees do not significantly infringe the freedom of association of nonunion employees, provided that they do not compel those employees to support activities or causes unrelated to collective bargaining.  Moreover, the Court held that there was an overriding good that needed to be protected due to the important role that unions play in the labor market, and that “such interference as exists is constitutionally justified…”

For now, the status quo for agency fees remains, and union activists can rejoice.  The case is also a reminder that whoever fills the seat left open by Justice Scalia will have the power to shape law on a lot of important issues like these.

By Zinnia Faruque, Esq. and Ty Hyderally, Esq.

[1] See Center for Individual Rights’s Mission page, available at  https://www.cir-usa.org/mission/ (last visited Mar. 31, 2016).

The above blog post was written over one year ago. The information in this blog post may not be current due to changes in the law or recent case decisions. We encourage you to contact our firm, at 973-509-8500, for information on this particular post and to make sure the content is still current.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.