4-4 SCOTUS Decision: Public Sector Fair Share Laws Survive

Friedrichs v. California Teachers Association could have turned public sector labor law upside down. In an unsurprising move the Supreme Court issued a non-precedential 4-4 opinion affirming the lower court’s decision by an equally divided Court. This opinion continues the status quo. Had Justice Scalia not died in February this case almost certainly would have had a different outcome. 

 In Friedrichs v. California Teachers Association the Court was contemplating overruling a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.

 In Abood the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective-bargaining, contract administration, and grievance-adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions. So no free-riders are allowed.

 In two recent cases Knox v. SEIU (2012) and Harris v. Quinn (2014) in 5-4 opinions written by Justice Alito and joined by the other conservative Justices (including Justice Scalia) and Justice Kennedy, the Court was very critical of Abood.

 The Supreme Court heard oral argument in this case in January and the five more conservative Justices seemed poised to overrule Abood.  After Justice Scalia died the Court had two choices knowing it was divided 4-4:  wait for a ninth Justice to join the Court and rehear the case or do what it did—affirm the lower court’s decision.

The Ninth Circuit in a very brief opinion had refused to overrule Abood.

 Given the uncertainty of when a new Justice will be confirmed and the lack of a circuit split on this issue the Court’s decision was expected. If a more liberal Justice joins the Court it is unlikely this issue will be brought before the Court again anytime soon.