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The fight over the constitutionality of union fees continues

Legal News Reporter

Published: April 29, 2016

The fight over whether unions can require nonunion public sector employees to pay them service or fair share fees to support their collective bargaining work is continuing.

On March 29 the U.S. Supreme Court failed to reach a majority decision in Friedrichs v. California Teachers Association, allowing the fee collections to stand.

Currently 23 states, including Ohio, mandate that nonunion members pay these fees.

Attorneys for the plaintiffs argue that forcing nonunion workers to pay fair share fees violates their First Amendment rights.

On April 8, the Center for Individual Rights (CIR), the Washington D.C.-based conservative public interest law firm that brought the claim on behalf of the teachers, filed a petition asking the high court to rehear the case once a replacement for the late Justice Antonin Scalia has been chosen.

The petition states, “The Questions Presented in this case are too important to leave unsettled with an affirmance by an equally divided Court, and they are guaranteed to recur in the absence of a definitive ruling from this Court. Petitioners thus respectfully request that the Court rehear this case after it obtains a full complement of Justices capable of reaching resolution by a five-Justice majority.”

In a press release Terry Pell, president of CIR said, “We can’t leave this issue for another time. The court has already agreed to decide this case and it should hold the case until it can issue a definitive a decision. A tie is simply not good enough when it comes to fundamental issues like the First Amendment.”

A spokesperson from the U.S. Department of Justice declined to comment on CIR’s petition for rehearing.

Rachel Reight, a partner at the Canton-based labor and employment firm Baasten McKinley & Co., said the petition was not unexpected “in light of the eight justice divided U.S. Supreme Court.

“These fair share fees are very important to unions. They help to finance collective bargaining, contract administration and grievance processing, which benefits both union and non-union members, and are not used for political and/or ideological purposes so as to implicate First Amendment concerns,” said Reight, who represents unions.

“The unions’ tasks are difficult, requiring a significant commitment of time and money,” said Reight. “Therefore, it is only fair that the costs are evenly distributed among all of those who benefit from the unions’ efforts. The fair share fees promote fundamental fairness and were upheld decades ago by the U.S. Supreme Court.”

The case was first filed by the CIR in the U.S. District Court for the Central District of California in April 2013 on behalf of California teacher Rebecca Friedrichs and nine other public school teachers in the state who declined to join the union along with the Christian Educators Association International.

In December of 2013, the district court granted CIR’s request to enter judgment on behalf of the defendant unions, allowing the case to proceed to the 9th U.S. Circuit Court of Appeals without discovery or a trial. The following year, a three-judge 9th Circuit panel granted CIR’s petition for summary affirmance on the pleadings, allowing the plaintiffs to petition the high court to review the matter. 

The U.S. Supreme Court agreed to hear the case in 2015.

A CIR press release explains that the plaintiffs’ goal was always to move the case to the Supreme Court in a timely manner. “Accordingly, they asked both the district court and court of appeals to decide the case on the basis of the pleadings quickly — without trial or oral argument.”

It was back in 1977 when the high court upheld the constitutionality of fair share fees in Abood v. Detroit Board of Education.

Sarah J. Moore, a partner at Fisher & Phillips, who represents public and private employers in matters ranging from labor relations to strategic planning, said that the Abood case “held that public employees who choose not to join a union can still be compelled to pay a service fee to finance union collective bargaining agreements, contract administration or grievance adjustment expenditures.

“While Abood recognized such workers are protected under the First Amendment from being compelled to contribute to political activities they oppose, the decision still permitted a large source of revenue for public sector unions,” said Moore.

She said many believed the Supreme Court was “on the brink of overturning the Abood decision and dealing public sector unions a crippling blow until Justice Scalia’s untimely death.”

At the heart of the Friedrich’s case, Moore said, is the issue of whether a public employee’s First Amendment rights are violated when “a state forces those who choose not to join the union to pay a service fee to the unions to cover bargaining and contractual matters.

“As Justice Scalia commented during oral argument, ‘[t]he problem is that everything collectively bargained with government is within the political sphere almost by definition’ and is a ‘public concern.’”

Moore said states like California and Ohio are “effectively compelling public employees who do not want to be in the union to support speech of that union regardless of whether the employee agrees with it or not in violation of their First Amendment rights.”

In addition to the main issue in the case, Reight said a separate question was raised regarding whether it violates nonmembers’ rights to require them to formally “opt out” if they don’t want to pay a fee not related to collective bargaining.

“This fee may be used for political or ideological purposes,” said Reight. “Currently if a nonunion member disagrees with the issues, he/she would need to ‘opt out’ to receive a refund for that portion of the fee. The plaintiffs argue they should instead be required to ‘opt in.’

“Right now, nonunion members mark a box to opt out, which increases the administrative efficiency,” said Reight. “The reverse would impose a new burden on unions.”

Resolving the issues in the Friedrichs case could take time. President Barack Obama has nominated Merrick B. Garland, chief judge of the District of Columbia U.S. Circuit Court of Appeals, to fill the void left by the passing of Justice Scalia. However, many Republican Senate leaders are vowing not to hold hearings on Garland’s nomination.

Depending on the outcome of the presidential election, some predict the Senate could decide to move forward on Garland’s nomination. If that does not happen, the status quo would continue in the foreseeable future or at least until the next president determines how to handle Garland’s pending nomination and/or selects his/her own nominee.

In addition to the Friedrichs case, there are several other lower court lawsuits pending that deal with the fee issue.

If the high court does re-visit and reverse the law, Reight said it would negatively impact the ability of unions to bargain.

“This could result in fewer members choosing to join the union since they would receive the same benefits of collective bargaining without paying the fees,” said Reight.

Moore said it is “premature to predict the specific monetary effect on public unions,” but noted “there are many states that do not require public employees to pay service fees and the unions remain strong despite a smaller revenue stream.

“Certainly, unions would likely need to restructure their delivery of services, but that does not necessarily mean the ability of unions to bargain would be compromised,” said Moore.