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Implications of the Friedrichs Non-Decision

Anthony T. (Tom) Caso April 08, 2016
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With the death of Justice Scalia, most Court watchers expected a 4-4 split in Friedrichs v. California Teachers Association—the attack on compelled payment of union dues by public school teachers. The Court announced its tie vote on Tuesday, March 29, stating only “the judgment is affirmed by an equally divided Court.” For the time being, public employees in California and elsewhere will be compelled to finance the political activities of their unions.

Background. In 1951, Congress amended the Railway Labor Act to permit unions to include a provision in their collective bargaining agreements that required all employees in the bargaining unit to pay the union regular dues and assessments as a condition of continued employment. Even if the employee did not want to join the union, they still had to pay union dues.  The purpose of the law was to require non-union workers who share in the benefit of the collective bargaining agreement to also share in the cost. The Supreme Court upheld this law against First Amendment attack in 1961's Machinists v. Street. The Court ruled that the law should be interpreted to allow unions to collect from nonmembers to the proportionate share of the cost of collective bargaining. Unions could not, however, compel payment for political activities. Of course, this ruling began several years of litigation of just what constitutes “political” versus “collective bargaining” expenses.

That question is even more difficult in the public employee union context. Nonetheless, the Supreme Court upheld state laws compelling non-union members to pay fees to public employee unions as a condition of continued employment in Abood v. Detroit Board of Education. The problem in the public employment union context is that the unions argue that their efforts before the state legislature are just as much about “bargaining” as are their efforts at the negotiating table with the local school board (as they did in Lillebo v. Davis, at 1442). Indeed, one union argued in the recent Knox case (at 2294) that campaigning for a ballot initiative should be classified as a “collective bargaining” expenditure. 

What is at Stake? Public employee unions wield enormous political clout due in large part to their ability to require public employees to pay these compelled fees. In a 2011 report, the California Fair Political Practices Commission listed the top 15 “special interests” by the amount they spend to influence the Legislature and the electorate. The California Teachers Association claimed the top spot on the list, outspending its nearest rival 2-1. Second place went to the California State Council of Service Employees. Public employee unions have much less influence in states that have “right to work” laws that outlaw compelled union fees. According to an article in the Huffington Post, a Supreme Court ruling prohibiting these fees as a violation of the First Amendment may have a serious impact on the political influence of public sector labor unions.

What happens next? Abood is still the law of the land, although it was weakened somewhat by the Supreme Court rulings in Knox and Harris v. Quinn. Since the Court is evenly divided on the issue, there will be no change until a new justice is seated on the Court.

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