After Justice Scalia: Friedrichs v. California Teachers Association
In Friedrichs v. California Teachers Association, argued before the Supreme Court on Jan. 11, 2016, the Supreme Court will decide whether or not a state may permit a public sector union to compel a “fair share” fee from employees who do not elect to become union members.
For the past 30 years, the Supreme Court has held that public sector unions could not charge dues for political or ideological activities, but, as a compromise for the public good and to prevent “free riders,” could continue to charge non-members “fair-share” fees to cover the costs of contract negotiation, grievance management and benefits administration. (This principle had applied to workers in the private sector since the 1950s.)
Rebecca Friedrichs and nine other teachers now argue, in short, that even traditional collective bargaining activities by public-sector unions are “political” and cannot be forced upon them because it violates their First Amendment freedom of speech and association rights. These activities, such as negotiating teacher salaries, staffing, tenure, and termination decisions, affect state budgets and individual taxpayers and cannot be compelled because they are “political” in nature.
To understand the impact of this decision, one must dig into the numbers. The California Teachers Association (CTA) negotiates and administers collective bargaining agreements covering approximately 325,000 public school educators state-wide. Each year, like Ms. Friedrichs, approximately 10 percent of teachers choose not to join the union. Annual dues for CTA members are approximately $1,000 per year, but the annual “fair share” fee for collective bargaining activities, not political activities, payable by non-member California teachers is $600 to $650. If the Court were to find the “fair share” fee unconstitutional, the CTA would lose nearly $17 million in annual fees immediately.
Before Justice Antonin Scalia’s death on February 14, 2016, a 5-4 decision in favor of petitioners was anticipated. With his death, many have speculated that the remaining justices would be split 4-4, which means that a lower court decision in favor of the union would stand, but have no real precedential value. Ms. Friedrich has recently announced that she intends to file a motion for a rehearing (Press Release, Center for Individual Rights, “Union Fees Case Is Not Over” [Feb. 17, 2016], available here
). This would leave the agency fees in place for at least another year through the 2016 election cycle.
In any event, whether the case is set for re-argument or reaches the Court again in another case due to a possible tie, the ultimate outcome of the fair share payment system may come down to the new Justice who is appointed and his or her affinity or hostility toward public-sector unions.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.