In Friedrichs v. California Teachers Association, nine teachers who all declined to join the California Teachers Association filed suit. They claimed that the mandatory collection of an agency fee paid to unions violates their First Amendment rights, as collective bargaining is an inherently political activity. The case looked like it would be a victory for conservatives and a blow to organized labor. However, with the sudden passing of conservative maverick, Justice Antonin Scalia, the Supreme Court is now numbered at 8, deadlocked 4-4, thus preserving the status quo for unions.
Here is how it has been for the past 38 years. No employee can be forced to join a union that would violate their freedom of association. However, a 1977, Abood v. Detroit Board of Education, the Supreme Court drew a distinction between two types of mandated payments.
“Forcing nonmembers to pay for a union’s political activities violates the First Amendment”, the court said. But it is constitutional, the court added, to require nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”
The Supreme Court case held that teachers who declined to join the teacher’s union still had to pay fees (typically referred to as a “fair service fee” or “agency fees”) that are equivalent to union dues and are used to cover the cost of union-related activities. Non-member government workers have the ability to object to any of the fees being used for political activities. They can even receive refunds for the portion of their fees that go towards lobbying, or campaign contributions. Under state laws requiring such fees, non-members may not recover money used for non-political activities (such as collective bargaining for wages and benefits).
Currently, 21 states have laws mandating these types of fees from workers who choose not to join unions. For the remaining states (like Georgia) that do not have laws requiring non-union members to pay fees— this case will have little effect. If a public employee joins the union they must pay dues, if they do not, they do not have to pay the union.
Friedrichs v. California Teachers Association is the latest battle in decades’ long conflict between organized labor and conservative groups and foundations working to diminish the power of unions that represent teachers and other public employees. Unions fear that by losing agency fees they would lose money and membership with more and more employees choosing to reap the benefits of collective bargaining without sharing the costs. Opponents call the Plaintiff’s First Amendment claims disingenuous and distinguish unions’ collective bargaining efforts as non-political with campaign contributions, which are clearly political.
Prior to Scalia’s passing, a victory for Plaintiffs seemed possible. In 2014, the Supreme Court chipped away at agency fees by deciding that home health aides (which were deemed “partial government workers”) who choose not to join unions may not be forced to pay fees in lieu of dues. However, with the Court now equally split between liberals and conservatives— there was not enough support to eradicate agency fees.
But this fight may not be over yet as Plaintiffs (represented by the Center for Individual Rights) petitioned the Supreme Court to rehear the case before a full court with 9 Justices, thus removing the tie vote and settling the issue with this case. Plaintiffs argue that a split decision just leaves this important question for another day. It is unclear whether the new Justice will support or unions. If so, Justice Scalia’s death may have helped unions.