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Published in Print: April 13, 2016, as Fee-Payer Issue Still Alive, Despite Close Call for Unions

Fee-Payer Issue Still Alive, Despite Close Call for Unions

Rebecca Friedrichs, a veteran Orange County, Calif., public school teacher, was the lead plaintiff in a suit by nonunion teachers opposed to paying service fees to the California Teachers Association. The U.S. Supreme Court’s deadlock was a blow to union opponents.
Rebecca Friedrichs, a veteran Orange County, Calif., public school teacher, was the lead plaintiff in a suit by nonunion teachers opposed to paying service fees to the California Teachers Association. The U.S. Supreme Court’s deadlock was a blow to union opponents.
—Greg Schneider/The Center for Individual Rights/AP

4-4 split at Supreme Court has labor foes undeterred

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Teachers' unions claimed a major victory with the U.S. Supreme Court's 4-4 vote affirming that they may continue to collect service fees from nonunion members. And union opponents may have come as close as they are going to get to upsetting the system for the foreseeable future.

The outcome in Friedrichs v. California Teachers Association (Case No. 14-915) was a relief for all public-employee unions, which faced the prospect of the high court overruling a 1977 precedent that authorized them to collect such "agency fees" to spread the costs of collective bargaining to nonmembers.

"Abood is the law of the land, and this week's decision leaves that unchanged," Alice O'Brien, the general counsel of the National Education Association, said in reference to the 1977 case, Abood v. Detroit Board of Education.

After Justice Antonin Scalia died on Feb. 13, court watchers had speculated that the Friedrichs case would end in a deadlock. When the case was argued in January, Scalia had appeared hostile to the unions' arguments, even though he was once seen as their best hope for gaining the necessary fifth vote to rule in favor of agency fees.

The high court issued a short, unsigned opinion in Friedrichs late last month that said the judgment of the court below "is affirmed by an equally divided court."

No National Precedent

That means the Supreme Court was upholding—without setting a national precedent—a 2014 ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

The 9th Circuit court panel had ruled unanimously that the challenge to the service fees by a group of 10 California teachers who refused to join the union could not go forward because of the controlling precedent of Abood.

Anti-union forces were left to lament how close they had come in the case to toppling a 40-year-old status quo, with some holding out faint hopes that the justices might grant a rare rehearing in Friedrichs once a successor to Scalia is confirmed.

Terence J. Pell, the president of the Center for Individual Rights, a Washington public-interest legal group that was behind the challenge, said that the deadlock "was not unexpected given Justice Scalia's death."

He said the group would ask the high court for a rehearing, "and we expect the court will hold on to the petition pending the confirmation of a new justice."

Rebecca Friedrichs, a 28-year Southern California teacher who was the outspoken lead plaintiff in the case, said that teachers "are very patient people," and the dissidents would keep pursuing their goal.

"We are in this for the long haul," she said.

Teachers' unions say income from agency-feepayers represent a relatively small proportion of their budgets. For example, a 2014 California Teachers Association document states that the NEA state affiliate had 295,000 active members and 29,000 agency-fee payers. According to its 2015 federal labor filing, the NEA had about 94,000 fee payers, alongside its 3 million members overall.

And in a conference call with reporters after the Friedrichs deadlock, Randi Weingarten, the president of the American Federation of Teachers, said, "in K-12 we have very few fee payers, less than 3 percent, and we've reduced that number by a little bit as well." The union has 1.6 million members nationally.

But the unions have fought to defend the system, in part because the agency-fee requirement pushes certain employees to join and get all the benefits of dues-paying membership.

Some court observers believe the issue will bubble up to the Supreme Court again in a year or two, and in a different case.

"We're one justice away from what we view as restoring the First Amendment rights of employees not to have to contribute to a private organization as a condition of working for the government," said Patrick Semmens, the vice president of the National Right to Work Legal Defense Foundation.

The group is behind some five cases percolating in the lower courts that challenge various union obligations.

In a Kentucky case, Cochran v. Jefferson County Board of Education, the foundation is representing nonunion educational support personnel in the Jefferson County school system who object to paying agency fees to the American Federation of State, County, and Municipal Employees.

The lawsuit asserts that the objecting workers must pay roughly $13 in agency fees every two weeks to AFSCME. They contend that procedures for opting out of the amount of the agency fee that goes for the union's political activities, which the nonmembers are not required to pay, are cumbersome at best.

Merrick Garland and Labor

Because it's clear that the eight current justices are split on the issue, the fate of the public-employee-union service fees for nonmembers would seem to come down to whoever fills Scalia's seat.

Based on the record of Judge Merrick B. Garland, President Barack Obama's nominee for the vacancy, unions may have reason to be optimistic, while anti-union groups the opposite.

In his 19 years on the U.S. Court of Appeals for the District of Columbia Circuit, Garland has ruled in numerous cases involving the National Labor Relations Board, which handles such matters as union organizing at private employers. Legal experts who have examined Garland's record in these cases suggest he is generally sympathetic to unions.

"His record on NLRB matters is generally deferential to the labor board, and even when he hasn't been, he has tended to rule for the unions," Semmens said. "Which is not very encouraging to us."

Vol. 35, Issue 27, Page 15

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