Last week, the Supreme Court issued a decision in Friedrichs v California Teachers Association. Well, sort of, but not really. Wait, sort of? How does the Supreme Court of the United States (SCOTUS) sort of decide? Either it decided or it didn’t. What’s up with that– and what case is that again? It’s the case about union fees charged to non-members who might still be benefitting from collective bargaining by unions. But let’s get back to the “sort of” part. The court heard oral arguments on January 11. It looked a lot like SCOTUS would rule 5-4 in favor of the non-union teachers challenging the compulsory fees. But then Justice Antonin Scalia unexpectedly passed away, leaving 8 justices and, with respect to this case, a deadlocked court, which means that the 9th Circuit Court of Appeals’ ruling allowing the compulsory fees stands… kind of, for now. OK, why do I keep saying that? The lower court’s ruling stands. Sothe unions win, don’t they? Well, win is a strong word. Maybe yes. For now. Let’s get a better look at what’s really going on, after the jump…
So some school teachers in California who do not want to be compelled to pay dues to a union they have chosen not to join. Why should they have to pay money to a group or organization they specifically chose not to join? The reasoning is based on a prior US Supreme Court case, Abood v Detroit Board of Education 431 US 209 (1977). Let’s take a brief look at what happened there, because, at least for now, it continues to have an impact.
Michigan state law allowed agreements between public agencies and unions representing government workers. The Detroit Federation of Teachers was the exclusive union for Detroit schoolteachers in the late 1960’s. D. Louis Abood was a school teacher who objected to compulsory union membership and the union’s endorsement of political candidates, and, essentially to teachers being effectively forced to endorse political candidates of the union’s choosing. Abood argued that was a First Amendment violation. He therefore sued in the state courts in Michigan in 1969, and the case went all the way up to the US Supreme Court. The Court upheld maintaining a union shop in the public sector. The Court also said that non-members may be assessed dues for the “collective bargaining, contract administration, and grievance adjustment purposes” while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes”. That was supposed to be a compromise. The reasoning was that non-members still benefitted from ‘non-political’ collective bargaining activity by unions, and therefore, the reasoning went, non-members should at least pay for those benefits they still received.
Fast forward more than 30 years later and move to the west. Similar to Michigan, under California law, unions can be the exclusive bargaining representative for public school employees, giving them significant influence over a broad range of employment conditions. Unions may then establish an “agency shop agreement”, in which they may require a public school employee to either join the union and pay dues, or pay equivalent of dues in the form of a “fair share service fee”. The fair share service fee is meant to acknowledge that the the First Amendment prohibits unions from compelling nonmembers to support activities that are not exclusively devoted to negotiations, contract administration, and other duties as an exclusive bargaining representative. The unions must therefore send notices to all non-members with a breakdown of chargeable and nonchargeable portions of the fee. Nonmembers must then, each year opt out in order to avoid paying the nonchargeable portion of the fee. Rebecca Friedrichs is the lead plaintiff among a group of public school teachers that sued the California Teachers Association, the school district and similar organizations, arguing that the agency shop agreement and the opt out agreement (rather than requiring affirmative consent) violate the First Amendment. One of the underlying arguments is that all union activity is inherently political and that nonmembers are still effectively subsidizing political activity with which they may not agree.
The federal district court affirmed the state law and practices, based on Abood, which, it pointed out was binding precedent that precluded its judgment on the issue. The Ninth Circuit Court of Appeals agreed, paving the way for the SCOTUS to hear the case and have the opportunity to overrule Abood.
So, if the Supreme Court is deadlocked at the moment and therefore cannot, overrule Abood, then by default it has to leave the 9th Circuit ruling in place. Why doesn’t that settle everything? Because it doesn’t really decide the issue. It’s not a ruling by a majority that says Abood is still valid–or is not. It essentially says “we can’t really do anything right now”. Wouldn’t that still settle the issue right now? Well, it might, except that the teachers filed a petition for rehearing. If the court grants the petition then they get to argue the case again before the Supreme Court. Perhaps by that time the Court will either figure out a way to break the tie or have a new, ninth justice, which would also break the tie. On the other hand, if the court does not feel there is enough chance that a rehearing could change anything it could deny the petition. Even then, however, that is probably not the last word on this issue. Another school district or another similar union situation could give rise to a new lawsuit that is fairly likely to make its way up to the SCOTUS–and by that time we’ll probably have 9 justices again. Of course, the 9th justice is not likely to be a Scalia replica, and while s/he may break the tie, s/he may not do so in favor of the nonmembers. At the same time though, uncertainty remains–and that is why a deadlock, while perhaps a better result than the union could have hoped for before Scalia’s passing is at best a “sort of” win for the unions.
So there you have it. Next week, if the SCOTUS has not handed down another ruling that impacts employers we will, as promised re-visit the NLRB and some of its more recent activities. See you then!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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