The Supreme Court Hands Down An Unexpected Public Sector Union Victory

An evenly divided Supreme Court upheld a ruling from the Ninth Circuit Court of Appeals ruling supporting the right of public sector unions to collect fair share fees from employees they represent who are not members of the union. Friedrichs v. California Teachers Association. The result leaves intact a near 40 year old precedent in Abood v. Detroit Board of Education. Abood held that the First Amendment only applies to forced contributions to the union’s political activities. Public sector unions are the exclusive representative and are bound by a duty of fair representation to all bargaining unit members without regard to their union membership. Accordingly, the Court in Abood held that non-members should be required to pay their fair share of the costs of negotiating and administering the contract on their behalf.

Conservative antiunion organizations have been trying to get the Court to overturn Abood since it issued in 1977, whittling down it principles by imposing increasing burdens on unions seeking to collect fair share fees from non-members. When Friedrichs was argued on January 11th the Court seemed poised to overrule precedent. The conservative Justices expressed skepticism about virtually all of the major arguments proffered in support of fair share fees. It seemed almost certain that the high court would rule 5-4 that fair share fees are unconstitutional. But with Justice Scalia’s death there were no longer five justices to do so.

The result of the ruling is a victory for unions. But the decision was a one sentence opinion affirming the 9th Circuit “by an equally divided Court.” It does not set precedent at the Supreme Court level. The next appointment to the Court will have considerable power over this critical issue which undoubtedly will be raised again.