September 23, 2020

Volume X, Number 267

September 23, 2020

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September 21, 2020

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Supreme Court Upholds Right of Public Sector Unions to Charge Mandatory Union Fees

By a 4-4 decision, the U.S. Supreme Court has affirmed a lower court ruling that public sector unions could require employees to pay an agency fee to a union as a condition of employment. Friedrichs v. California Teachers Association, No. 14-915 (Mar. 29, 2016).

The plaintiffs had argued that their First Amendment rights were violated when the government, through a collective bargaining agreement, required the employees to pay an agency fee (also known by the euphemism “fair share payment”) a union whose views they did not necessarily wholly share. Agency fees are similar in amount to the dues paid by union members. Read our previous post for more detail.

In a single sentence — “The judgment is affirmed by an equally divided court” — the justices demonstrated that the passing in February of Justice Antonin Scalia will have a distinct effect on cases before it. (Approximately a third of the cases before the Supreme Court in recent years have been decided by a 5-4 vote.) Many court observers believed Justice Scalia would have voted with the plaintiffs and found a government requirement that public sector employees pay a mandatory agency fee violates the First Amendment rights of those workers. During oral argument, Justice Scalia and others justices expressed the view that collective bargaining was political speech and the requirement that public sector employees pay mandatory agency fees was “compelled speech.”

Had the Court reversed the appeals court decision, public sector unions stood to lose millions of dollars in fees as employees exercised their new right to decline to pay an agency fee. For example, after Wisconsin in 2013 prohibited unions who represented state employees from charging mandatory agency fees, AFSMCE Council 24’s revenue in the state dropped from $5 million in 2010, before the law changed, to $1.5 million.

The High Court’s decision does not finally resolve the issue. The plaintiffs could ask for a rehearing, although success is unlikely because an affirmative vote of five justices is required and a rehearing is rarely granted. In addition, several cases that raise the same issue are working their way through the lower courts. One of them may reach the Supreme Court for a definitive ruling after the Court is restored to a full complement of nine justices.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 92

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About this Author

Patrick Egan, Labor Law Attorney, Jackson Lewis, Boston Law Firm
Patrick L. Egan

Patrick L. Egan is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Mr. Egan works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Mr. Egan has represented employers in card-signing efforts and representation and decertification campaigns. He has conducted union awareness and positive employee relations training for hundreds of companies and employer groups. He has also assisted dozens of employers to preempt, prepare for and defend against union corporate campaigning....

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

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