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Bar News - April 20, 2016


Labor & Employment Law: US Supreme Court Update: Labor Narrowly Escapes Sharp Reversal

By:

Must California public school teachers pay a fee to a union whose goals they do not support? For 40 years, the United States Supreme Court had said “yes,” and that will still be the law of the land following the Court’s 4-4 tie vote on March 29, delivering a surprise victory to unions and underscoring the practical significance of the empty seat on the bench.

Public sector unions fully expected to lose their ability to charge nonmembers for collective bargaining expenses following the January oral argument in Friedrichs v. California Teachers Association. Those nonmember charges – called agency fees – have been a fixture of public sector collective bargaining since the Court’s decision in Abood v. Detroit Board of Education (1977), holding such fees do not infringe free speech rights, so long as the agency fee monies do not support unions’ political activity.

The late US Supreme Court Justice Antonin Scalia was seen as the unlikely swing vote in Friedrichs, but the January oral argument went so badly for the unions that virtually all commentators expected Scalia to join other conservatives on the Court and end agency fee payments.

Does this matter to lawyers not involved with unions? It should. As our NH Supreme Court said in Petition of Chapman (1986), “A lawyer’s interest in freedom to choose or to reject membership in a bar association parallels an employee’s interest in freedom to decide whether to belong to a labor union.” Just like employees who may be compelled to pay a union’s service fee, a lawyer “may likewise be compelled to join and pay dues to a unified bar association in order to render the association effective in fostering integrity and efficiency in the legal system that serves the public.” Given those sentiments, our Court’s decision a decade later upholding agency fees in New Hampshire in Nashua Teachers Union v. School Dist. (1998) was not too surprising.

It is difficult to overstate the importance of agency fee payments to public sector unions. Since 1970, most of the growth of unions has been in the public sector. Public sector unions were a bright spot compared with their besieged private sector counterparts. Less so now. So-called right-to-work legislation and Scott Walker-inspired limits on bargaining by public employees have changed the landscape for public sector unions. Friedrichs could have been bad news indeed.

The path to January’s argument in Friedrichs was unusual. The plaintiffs challenging agency fees confessed judgment in both the district court and the circuit court of appeals to speed their appeals. Such haste would be unusual except that the plaintiffs were responding to Justice Samuel Alito’s twice repeated invitations to challenge to Abood in two recent agency fee cases.

Four years ago, in Knox v. Service Employees (2012), Alito’s majority opinion sharply questioned Abood and prior decisions, saying those decisions “approach, if they do not cross, the limit of what the First Amendment can tolerate.” Remarkably, the free speech issue had not been before the Court in Knox. As Justice Sonia Sotomayor put it, “I cannot agree with the majority’s decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing.”

Alito repeated his invitation to challenge Abood two years later in his majority opinion in Harris v. Quinn (2014). There he described Abood’s legal reasoning as “thin,” resting on “unsupported empirical assumptions,” and failing “to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.”

There lies the crux of the matter, in this author’s view. Those opposed to public sector unions see them as interlopers on the political stage. They argue that public sector unions are too political, and their political power needs to be reined in. Alito’s invitations to challenge Abood put Friedrichs front and center.

Would Scalia have agreed with Alito? Scalia was considered the swing vote because of what he had said in another agency fee case, Lehnert v. Ferris Faculty Assn. (1991): “Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”

Had Scalia changed his mind? Now that question is one of many that fall to a Senate that, sooner or later, will confirm a new Supreme Court justice. The unions may have escaped a sharp reversal for now, and unions have considerable resources, but those arrayed against them do too. This dispute will be back, but for now, it reminds one that nothing is certain.


James Allmendinger

James Allmendinger, a solo practitioner in Durham, has practiced labor and employment law for 39 years, mostly representing public sector unions.

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