Union fair share fees in the crosshairs at Supreme Court

Beginning of the end for Abood? My view: If the US Supreme Court agrees to review Friedrichs v. California Teachers Associationwe should prepare for a sea change in the legality of "agency shop" (aka "fair share") arrangements in the public sector.

A group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector "agency shop" arrangements violate the 1st Amendment.

The Court will have a conference on June 25 to decide whether to grant certiorari. If so, briefs will be filed over the summer, and oral arguments will be scheduled for the fall.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an "agency shop" arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

Five Justices have already made it quite clear that they are ready, willing, and able to overrule Abood. In  Harris v. Quinn (US Supreme Court 06/30/2014) the Court majority wrote out a list of reasons why Abood is now hanging by a thin thread:

  • Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was "thin."
  • Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  • The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  • Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  • Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  • Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  • Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  • The Abood Court’s critical "labor peace" analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see Supreme Court Watch.]