Supreme Court Split Upholds Union's Ability to Collect Agency Fees

March 2016

In a one-sentence decision, the U.S. Supreme Court announced that it was divided 4-4 over whether public employees can be required to pay "fair share" fees to cover collective bargaining costs, even if they are not members of the union.  (Friedrichs v. California Teachers Association (3/29/2016) No. 14-915.)  The effect of the tie vote, which arose due to the eight justice Court created by Justice Antonin Scalia's death in February, is to preserve the Ninth Circuit Court of Appeals decision in 2014 holding that  "fair share" fees or "agency fees" are constitutional.  The truncated opinion simply states that "[t]he [9th Circuit's] judgment is affirmed by an equally divided Court."

In 2013, Rebecca Friedrichs, along with nine other teachers, sued the California Teachers Association (as well as the National Education Association, various local teachers' unions and local school officials).  The plaintiffs in Friedrichs argued that the California law requiring public employees, who choose not to join the union, to pay an "agency fee" violated First Amendment rights to free speech and association.  The plaintiffs sought to overturn established Supreme Court precedent from the 1977 decision in Abood v. Detroit Board of Education, which allowed unions to charge non-member employees a "fair share" of the costs associated with collective bargaining.  

After both the U.S. District Court and the Ninth Circuit refused to disturb the state-mandated fee system based on the long-standing precedent set in Abood, the plaintiffs appealed to the U.S. Supreme Court.  Many legal experts initially believed that the Court would overturn Abood.  Anticipating a change in the law, unions affiliated with school district employees began lobbying California legislators for a bill to preserve union membership in an effort to mitigate the potential loss of revenue.  Similar efforts were undertaken at the local level in collective bargaining negotiations.  However, with Justice Scalia's sudden death in February and the unresolved vacancy on the Court, expectations for a change in the law diminished.  

With Tuesday's split vote, the decision of the Ninth Circuit is affirmed and California's agency fee mandate will continue.  It is unclear whether unions will continue to pursue legislation and their collective bargaining positions designed to increase membership and revenue in anticipation of a future "agency fee" challenge.  For now, however, the status quo is preserved.

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F3 NewsFlash prepared by Kerrie E. McNally and John W. Norlin.
Kerrie is a Partner in the F3 Los Angeles and Inland Empire offices.
John is Special Counsel in the F3 San Diego office.

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