U.S. Supreme Court Upholds Public Sector “Fair Share” Fees on Tie Vote

On March 29, 2016, the U.S. Supreme Court issued a one-line decision in Friedrichs v. California Teachers Association (CTA) affirming the holding of the Ninth Circuit Court of Appeals, by an equally divided court. The Friedrichs case was filed to test the Court’s 1977 precedent in Abood v. Detroit Board of Education. The Friedrichs plaintiffs had even asked the lower courts to rule against them so that they could get to the Supreme Court faster.

Abood has been the law of the land for almost 40 years, holding that while public employees who do not join the union cannot be required to pay for the union’s political activities, they can be charged an “agency” or “fair share” fee to cover other costs the union incurs, like collective bargaining. In separate decisions in 2012 and 2014, the Supreme Court applied pressure to its decision in Abood when it ruled (1) that absent affirmative consent from its members, a public-sector union was prohibited from imposing a special assessment for political activities and (2) that home health care workers are “quasi-public employees” and therefore not covered by Abood.

In 2013, Friedrichs and other California teachers sued the CTA, claiming that being forced to pay agency fees to a union to which they chose not to belong violated their First Amendment rights to free speech and free association, that union activities like collective bargaining are inherently political, and that the CTA’s procedures to opt-out of financial contributions were overly burdensome.

This case was argued before the Court in January 2016. Despite strong arguments on both sides, the Court seemed poised to overturn Abood in a 5-4 decision. That changed in February 2016 when Justice Scalia passed away and left the Court evenly divided on this issue. Ultimately, the Court, in its 4-4 decision, upheld Abood, leaving the precedent intact but the constitutional issue ripe for further challenge. The plaintiffs’ legal advocacy group in this case indicated that they intend to file for rehearing in the Court’s new term in October. Whether a ninth justice will have been seated by then is another unsettled matter.

This holding maintains the status quo, but the impact of the Court’s composition may have implications for school labor practices. Please contact Stan Eisenhammer with your inquiries.

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