Supreme Court split delays resolution of dues question

By Karen Federman Henry

As we await the appointment of a successor to the empty seat on the U.S. Supreme Court, one of the early casualties of a tie vote has already occurred. Many public employers and employees had their eyes on a recent case involving the California Teachers Association, because its outcome had the potential to alter the relationship between public employees and their union representatives that has existed since the 1970s. Instead of a scintillating analysis by the Court, a tie vote yielded only a one-line order that left the decision of the Ninth Circuit Court of Appeals intact along with the existing precedent from the 1970s and 1980s. See Friedrichs v. California Teachers Ass’n, No. 14-915.

The suit was filed by a group of California teachers who disputed a requirement that public employees pay a fee for union representation regardless of whether they agree with the union’s positions. See Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). The educators argued that the required fee violated their First Amendment rights of free speech and association, because they really did not have direct input regarding the union’s activities and positions on specific issues and only voted to select a representative. The district court resolved the case on motions, and the Ninth Circuit affirmed, finding no violation of the First Amendment and relying on the earlier Supreme Court cases. The petition for writ of certiorari asserted that the case presented an excellent vehicle for reconsidering Abood, and the Court’s grant of the petition suggested that reversal, clarification, or modification of Abood could be forthcoming.

Faced with the First Amendment challenge at the Supreme Court, the State found itself aligned with the union and the Department of Justice in defending the requirement. Together, they contended that requiring all teachers to pay the fee for union representation facilitated the goal of collective bargaining by establishing one representative for the government employer to negotiate with. Absent the exclusive representative, the defendants argued, the government employer would find itself negotiating with hundreds of individuals, making the process unwieldy at best. In addition, the fee provided funding for the union, keeping it separate from the employer’s control. If the employer were to fund the union representative, the employees might not trust the negotiations taken on their behalf.

Both sides of the argument have merit. Why should a public employee pay a fee to a union representative that the employee does not feel represents his or her individual interests? On the other hand, how can a union representative provide services if the funding is inadequate for the task and there is no ongoing source to replenish it? At a minimum, it was worth revisiting a decision issued long ago to ensure that it has relevance in the current workplace.

Instead, the tie vote ultimately leaves the status quo in place and does not answer the central questions of whether the practice remains viable in the 21st century or requires modification to address how public employment has evolved in several decades. Presumably, another group of employees will now need to file another challenge and hope that it reaches the Supreme Court with a full complement of justices to decide it. Hopefully, only a few cases will suffer this fate and the Court will find ways to reach a majority without needing to leave resolution of important issues for another day.

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