On Tuesday, March 29, an evenly divided United States Supreme Court issued a one-sentence opinion upholding agency shop fees in the public sector. The tie vote (4 to 4) in Friedrichs v. California Teachers Association let stand the Ninth Circuit’s decision which found that these fees, in the public sector, did not violate non-members’ First Amendment rights.
Agency shop fees are the law in about half the states, including New Jersey. In New Jersey the agency shop law requires as a condition of employment, that public employees who choose not to join the union, pay up to 85 percent of assessed union dues to cover expenses related to collective bargaining.
Striking down these fees may not have had an immediate impact in New Jersey since very few public employees opt out, but allowing opt-outers to pay zero rather than 85 percent would have created an incentive for an exodus of dues-paying members and potentially, in the long term, could have dramatically changed the employee relations environment for local boards.
The Freidrichs case was a direct challenge to the 1978 Supreme Court case Abood v. Detroit Board of Education. Abood found that while non-union employees may not be compelled to pay for the ideological or political speech of unions, they could be assessed a portion of the dues to cover the union’s “collective bargaining, contract administration, and grievance adjustment” expenses.
The lead plaintiff, Rebecca Friedrichs, a California public school teacher, opted out of the teachers union, but still had to pay a portion of dues. In part, the plaintiffs claimed the collective bargaining process for teachers’ unions is an inherently political one because the compensation and policies being negotiated affect government budgets and these compelled fees violated their First Amendment rights because it results in them subsidizing union speech with which they disagree.
Over the past few years the high court has chipped away at the Abood precedent. In 2012’s Knox v. Service Employees Local 1000, the court held that government union members had to be given an opt-in, not opt-out system for one-time special assessment.
In 2014 in Harris v. Quinn, the Supreme Court held that medical assistants paid by the state of Illinois but mostly supervised by the home care clients were not “full-fledged” public employees and, thus, could not be compelled to pay union dues. In that decision, Justice Alito wrote for the majority that the legal reasoning underpinning the Abood decision was “questionable on several grounds.”
Taken together these cases seemed to foreshadow Abood being struck down once the issue was squarely before the court. After January’s oral argument in Friedrichs, the conventional wisdom was that the court would overturn Abood by a 5 to 4 vote and do away with these compelling dues for nonunion members. With the untimely death of Justice Scalia, the final vote was 4 to 4. The tie vote does not set precedent but allows the lower court’s decision to stand.
Plaintiff’s lawyers have indicated that they plan to seek rehearing before the court. Presumably, the court would have nine justices next term, which would result in a precedential decision if the case was reheard.