A U.S. Supreme Court Tie Means Victory for Unions

An equally divided United States Supreme Court means that public sector unions in California can still require employees to pay union fees, even if the employee is not a union member. Due to Justice Antonin Scalia’s recent death, the eight-justice Court ruled 4-4 in Friedrichs v. California Teachers Association, leaving the U.S. Ninth Circuit Court of Appeals’ judgment in the union’s favor in place.

Under California law, unions may establish “agency shop” arrangements with public agencies, requiring employees to either join the union or pay a fair share service fee. The fair share fee includes payments for both the union’s “chargeable” collective bargaining activities, and its “non-chargeable” political and ideological activities. If non-members do not want to support the union’s non-chargeable activities, they can receive a fee reduction, but must affirmatively opt-out each year.

Teacher Rebecca Friedrichs argued that teachers who decide not to join the union should not be required to pay union fees, which are often just as expensive as union dues. Friedrichs and other public school teachers claimed that even collective bargaining is a political activity. Therefore, they argued, California’s agency shop arrangements violate First Amendment rights to free speech and association. Both the trial court and the Ninth Circuit held that, under the U.S. Supreme Court’s decision in Abood v. Detroit Board of Education, agency shop agreements are clearly constitutional. Unions can compel employees to provide financial support, even where some of the union’s activities are political or ideological. The courts also found that an opt-out procedure for non-chargeable activities was sufficient to protect the teachers’ rights, in accordance with other precedential cases.

The Supreme Court agreed to hear the case last June. Before Scalia’s death in February left the Court with an even panel, the Court was expected to side with the teachers and overturn Abood. The tie vote, however, leaves the Ninth Circuit’s decision undisturbed and the union right intact. While this issue may be considered again by the Supreme Court after appointment of a new justice, for now agency shop arrangements are permitted in public agencies.

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