By: Nicholas Graziano
The United States Supreme Court recently affirmed the Ninth Circuit Court of Appeals, holding agency fees paid to the California Teachers’ Association (“CTA”) by non-union members in place of membership dues does not violate the non-union members’ free speech rights under the First Amendment. 

This decision affirms the Court’s decades-old precedent set forth in Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).  Under Abood, a union cannot require non-members to contribute financially to a union’s non-core causes, but may charge non-members an agency fee to support a union’s efforts in core activity such as collective bargaining.  Non-members argued these fees forced them to support the union’s political activities as collective bargaining by a public-sector union is inherently political.  The CTA contends that non-members must financially contribute to support of the union’s negotiating efforts on behalf of all teachers, as non-members still benefit from the collective bargaining efforts spent by the Teacher’s union to avoid the spread of “free-riders”.

In June 2014, the Supreme Court held in Harris v. Quinn, 134 S. Ct. 2618 (2014), that the State of Illinois could not treat its Medicaid-paid home health aides as government employees for the purposes of subjecting them to the state’s compulsory union dues requirements.  The Court distinguished public employees covered by Abood from quasi-public employees or partial public employees, like the home health aides whose customers (private individuals) have the final say and decision-making power in their hiring, firing, scheduling, and duties rather than the state or government making these decisions.  In reaching its holding, the majority criticized Abood for failing to take into account the “conceptual difficulty” of distinguishing between union expenditures for collective bargaining and those for political and other non-core activities in the public sectors. The Court also criticized the administrative difficulty in distinguishing between “chargeable” and “non-chargeable” expenses in the public sector as well as noting a heavy burden on the non-member in showing that the chargeable item is not “germane to collective bargaining” and, therefore, non-chargeable under Abood’s agency fee.

Prior to Harris, in Knox v. SEIU Local No. 1000, 132 S. Ct. 2277 (2012), the conservative majority of the Supreme Court called the collection of dues from non-members an “anomaly” that must be “carefully tailored to minimize the infringement of free speech rights.”  However, unlike in Friedrichs, where the non-member’s central argument is that as a public sector union all bargaining is inherently political, in Knox the non-members had already opted out of political spending which was subsequently reassessed with increased agency fees to the non-members. Though the Knox court did not address the constitutional rights invoked in Friedrichs, Justice Alito invited a future challenge to Abood, suggesting that an opt-in procedure would be less restrictive to speech than the current opt-out framework.

Despite strong criticism from the Court’s right wing, the 4-4 verdict issued from the Court on March 29, 2016, due to the recent passing of Justice Scalia, reaffirms the Ninth Circuit’s holding and has ensured that, at least for now, public sector unions will continue to collect agency fees.  However, because political interest groups such as the Center for Individual Rights (the group responsible for organizing Rebecca Friedrichs and the other plaintiffs) had nearly achieved its goal in overturning Abood, a similar case will certainly be presented to Court in the near future.  Unless the majority of Supreme Court justices can be led to understand the importance of, and state interest in, strong public sector unions, there is no certainty that agency fees will continue to be permitted under the Constitution as further challenges to the agency fee are likely to be litigated.

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