U.S. Supreme Court Hears Oral Argument On The Constitutionality Of Agency Shop Clauses For Public Sector Employees
Legal updates
U.S. Supreme Court Hears Oral Argument On The Constitutionality Of Agency Shop Clauses For Public Sector Employees
January 13, 2016
On January 11, 2016, the U.S. Supreme Court heard Oral Argument in the case of Friedrichs v. California Teachers Ass’n, Case No. 14-915, which has the potential to change the landscape of public sector labor relations throughout the country. In Friedrichs, a group of California public school teachers is challenging the constitutional precedent allowing for the inclusion of agency shop clauses in public sector collective bargaining agreements. This precedent was first established by the U.S. Supreme Court nearly forty years ago, in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
Abood involved an agency shop clause that compelled public employees to pay union dues, despite their opposition to their union’s political and social agenda. At the time, the Supreme Court ruled that an agency shop clause was constitutionally permissible in public sector contracts, as long as the compelled union dues were used to finance collective bargaining, contract administration, and grievance adjustments that benefited all bargaining unit employees. By contrast, the Abood Court held that public employees cannot be compelled by a collective bargaining agreement to contribute money to a union’s political and ideological causes that are not germane to its collective bargaining obligations.
Until recently, this constitutional holding was never directly challenged by public employees. In Friedrichs, however, a group of public school teachers now argue that the political/collective bargaining distinction first announced in Abood was shortsighted, because it overlooked the fact that a union’s bargaining positions are inherently “political” to the extent they affect a public employer’s operations and finances. During Monday’s oral argument, Justice Scalia summarized this problem by stressing the difficulty in separating political/ideological activities from collective bargaining activities. “[E]verything that is collectively bargained with the government,” said Justice Scalia, “is within the political sphere, almost by definition.” He listed examples, “Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority[?] … – all of those questions are necessarily political questions.”
It became apparent during the oral argument that a number of Justices rejected the notion that a public sector union must be able to compel public employees to pay their “fair share” of union dues, otherwise, those employees will become figurative “free riders.” Such free riders, argued the Unions, enjoy the benefits of collective bargaining without having to pay for them. Justice Kennedy seemingly discounted the notion of free riders, however, stating during oral argument that “the union basically is making these teachers compelled riders for issues on which they strongly disagree.”
At one point, the petitioning teachers were asked whether public sector unions would still be able to secure sufficient funding in order to perform their collective bargaining responsibilities in the absence of fair share clauses. Counsel for the teachers pointed to the federal government experience as evidence for why the elimination of agency fees will not lead to the demise of public sector unions. Specifically, the Petitioners noted that the federal government (in its employer capacity) does not permit unions to compel federal employees to pay agency fees, which in turn has resulted in only about a third of all federal employees maintaining formal union membership. Yet, statistics show that federal sector unions not only survive, but thrive in this environment. Considering these statistics along with the public sector union density rate in California (90%), the Petitioners argued that it is highly unlikely that California public sector unions would suddenly “disintegrate” if agency shop clauses are held unconstitutional.
Interestingly, the petitioning public school teachers have asked only for prospective relief. In that regard, fair share fees already collected under existing collective bargaining agreements would not have to be returned. A union’s future bargaining efforts, however, could no longer be subsidized by compelled union dues.
Ultimately, the Petitioners’ counsel opened and closed their oral argument by stating that public sector unions have every right to pursue whatever political or ideological positions they deem appropriate. These unions do not, however, have the right “to demand that the other side subsidize their views on these essential questions of basic public importance.”
Several commentators believe that Justices Scalia, Kennedy, Thomas, Alito, Chief Justice Roberts, and even, perhaps, Justice Breyer – all nominated by Republican presidents – will join together to overrule Abood and find public sector agency shop clauses to be unconstitutional. If that occurs, numerous public sector collective bargaining agreements will be impacted on a going forward basis. Such a ruling also would limit an important source of funding for public sector unions across the country, which in turn could limit union influence on a variety of political and social causes. The Supreme Court is expected to rule on this important issue by the end of June.
Clark Baird Smith LLP attorneys will discuss the potential bargaining ramifications of this decision in greater detail at the annual Employment Law Seminar on March 4, 2016, hosted by the Illinois Public Employer Labor Relations Association.
Created by Olive + Ash.
Managed by Olive Street Design. 