CALPELRA Alert:  US Supreme Court/
Unions Can Still Require Agency Fees
In June 2015, the U.S. Supreme Court agreed to review Friedrichs v. California Teachers Association. Friedrichs challenged the right of public employee organizations in California to require public employees to pay “agency shop” fees.  An agency shop arrangement requires non-union member employees to pay compulsory fees as a condition of employment even if the employees decide not to join the union.
 
The plaintiffs in Friedrichs alleged that agency shop fees violated their free speech and free association rights under the First and Fourteenth Amendments to the Constitution. They sought to overturn a 1977 U.S. Supreme Court decision, Abood v. Detroit Board of Education, which held that, insofar as service fees were used to finance expenditures by the union for collective bargaining, contract administration, and grievance purposes, agency shop fees were constitutional.
 
The Federal District Court and the Ninth Circuit Court of Appeals denied the Friedrichs plaintiffs’ request for relief, relying on the Supreme Court’s precedent in Abood.  The Supreme Court agreed to review the case, signaling that it may be willing to overturn Abood, and held oral argument on January 11, 2016.  Had the Supreme Court held in favor of the Friedrichs plaintiffs, the decision would have created a major disruption to the operations of public employee organizations.  Since oral argument, however, Justice Antonin Scalia passed away, leaving the court without a ninth justice to break ties. 
 
On Tuesday, the Supreme Court upheld the lower court decision.  The Court did not issue an opinion, but simply affirmed the Ninth Circuit decision with a 4-4 tie, stating only, “The judgment is affirmed by an equally divided Court.”  The failure to issue an opinion, or a majority decision, leaves some uncertainty as to the legal basis for the ruling.  For now, however, the right of public employee organizations to charge agency shop fees remains intact.
 
The Center for Individual Rights, an advocacy group representing the plaintiffs in the case, announced at the time of Justice Scalia’s death that it would file for rehearing of the case if the decision was a 4-4 tie, and announced again after the decision that they would file a petition for rehearing.  (San Jose Mercury News)  The group has 25 days to request rehearing, and five of the justices must vote to order reconsideration.
2016 CALPELRA President:  Lori Walsh, County of Placer
Alert No. 16-06 Author:  Kristin D. Lindgren, Liebert Cassidy Whitmore
This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information.  The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
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