Supreme Court Issued 4-4 Decision In Friedrichs Case, Upholding “Fair Share” Fees For Nonmembers In Public Sector Unions

AP: “Tied 4-4 After Scalia's Death, High Court Gives Unions A Win.” On March 29, the Supreme Court announced a 4-4 divide in the Friedrichs v. California Teachers Association case on union fees, following oral arguments in January. The split vote leaves in place the lower court's ruling on the case, which preserved the union's right to charge an “agency fee,” or “fair share fee” to those who benefit from union collective bargaining but do not wish to pay for union membership. As the Associated Press explained, the existing “agency fee” precedent was established in 1977, and the Supreme Court's decision constituted an “unlikely reprieve” for labor groups, which had been expecting the court to overturn the precedent:

The deadlocked vote came in a case that considered whether unions representing government employees can collect fees from workers who choose not to join. California teachers backed by a conservative group said being forced to pay union fees violated the free-speech rights of nonmembers who disagree with the union's policy positions.

The split vote left in place an appeals court ruling that upheld the collection of “fair share” fees from nonmembers.

The result was an unlikely reprieve for organized labor. It had seemed virtually certain that the high court would rule 5-4 to overturn a system that's been in place nearly 40 years. But the court now is operating with only eight justices after the Feb. 13 death of Scalia, who had been expected to rule against the unions.

The one-sentence opinion issued Tuesday did not identify how each justice voted. It simply upheld a decision from the 9th U.S. Circuit Court of Appeals.

But it was a blow to conservative groups that have spent years pushing the court to overrule a 1977 precedent that allows unions to collect fees from members and non-members alike to cover the costs of collective bargaining. [Associated Press, 3/29/16]

Right-Wing Media Wrongly Assert That The Decision Forces Employees To Pay Union Membership Dues, Join Unions Against Their Will

Fox's Andrew Napolitano: “Could You Imagine If All Of Us Were Forced To Join A Labor Union And That Labor Union Negotiated For Us Against Our Will With Our Employers Here?” On the March 29 edition of Fox Business Network's Varney & Company, senior Fox judicial analyst Judge Andrew Napolitano agreed with host Stuart Varney, who said the decision means teachers would be “forced to join the union.” Napolitano falsely claimed that “school teachers ... under California law were forced to join a public sector labor union and be bound by the union's negotiations on their behalf” and that “the state can force you to pay the union dues”:

STUART VARNEY (HOST): Now this, last hour we broke news from the Supreme Court. Deadlocked on a union dues issue. This has to do with union fees, dues being paid by non-union members. At least that's the way I see it, but I think the Judge is going to straighten me out. Judge, where have I gone wrong?

ANDREW NAPOLITANO: Well, no, you haven't gone wrong. It's a California case involving school teachers who under California law were forced to join --

VARNEY: To join the union.

NAPOLITANO: -- to join a public sector labor union and be bound by the union's negotiations on their behalf. Teachers said we don't want to join, we don't want to pay dues, we don't want to be bound by what this union has negotiated on our behalf. We want to be hired or fired on merit and on our own. So you have two issues. One is freedom of speech, you are forcing us to accept the speech of others as if it was ours. And freedom of association, the state of California is forcing people to associate with people they don't want to associate with.

VARNEY: No changing this. I mean, they will be forced to join the union, they will be forced to pay up.

NAPOLITANO: Correct. The Ninth Circuit Court of Appeals, which is right below the Supreme Court, it's the federal appeals court for the 15 westernmost states of the United States, has upheld what the law has been. This was an effort by the plaintiffs to change the law. The law has been the state can force you to join the union, and the state can force you to pay the union dues, but you're entitled to a rebate of those portion of your does that go to overt political activity by the unions with which you disagree. These challengers are trying to say, “how can you force us to join an organization we don't want to join?” and “how can you force somebody else that we don't trust or we don't like to speak for us?” Could you imagine if all of us were forced to join a labor union, and that labor union negotiated for us against our will with our employers here? [Fox Business Network, Varney & Company, 3/29/16]

Rush Limbaugh: “This Kind Of Stuff Is What Tears Up The Fabric Of Our Culture ... Requiring People Who Are Not Members Of Unions To Pay Dues.” During the March 29 edition of Premiere Radio Networks' The Rush Limbaugh Show, host Rush Limbaugh claimed that the Friedrichs ruling “means that unions can now demand non-union workers on the job pay union dues” and that union dues constitute “money laundering for the Democrat Party,” further misrepresenting the role of agency fees, which are expressly not permitted for use in union political activity:

RUSH LIMBAUGH (HOST): Supreme Court decision today, this is what happens, we have a 4-4 decision out of the Supreme Court. It was deadlocked. Compulsory wage confiscation for all public sector, nonunion employees was upheld. It was a 4-4 vote, which means the case stands as it was when it got to the court. There's no change in it, which means that unions can now demand non-union workers on the job pay union dues. Union dues is a money laundering operation for the Democrat Party. Here's how it works:The Democrat Party cannot yet go to the United States Treasury and write itself checks to run campaigns and win elections, so what it does, it throws little bones here and there to unions, in terms of policy, protectionism, any number of things. The unions go out and charge their members dues and most of that money, a majority of that money, ends up being donated back to the Democrat Party and the cycle continues. This is essentially how the Democrats launder money from unions back to themselves in order to, it all comes under the guise of campaign contributions. But what's happened is that a lot of people were upset that non-union members are being charged dues. How can that happen? So a suit was brought, and it deadlocked 4-4 at the U.S. Supreme Court, so it remains now compulsory wage confiscation called “dues” for all public sector non-union employees.

[...]

This kind of stuff is what tears up the fabric of our culture. This kind of ruling, the Supreme Court, this kind of behavior, requiring people who are not members of unions to pay dues, this is what people expect leadership in Washington to protect them from. [Premiere Radio Networks, The Rush Limbaugh Show, 3/29/16]

Fox's Bream And Hemmer Agree That Unions “Can Charge Non-Union Members Dues.” On the March 29 edition of Fox News' America's Newsroom, Fox Supreme Court reporter Shannon Bream affirmed host Bill Hemmer's mischaracterization of the decision, agreeing that “unions can charge non-union members dues” and implying that agency fees could be used to support political activity (emphasis added):

BILL HEMMER (HOST): U.S. Supreme Court split 4-4 on a legal challenge on union fees. That's a big win for the unions, and the first major decision likely impacted by the loss of Justice Scalia's vote. Reverts back to earlier court. Shannon Bream is on that today in Washington. Shannon, good morning.

SHANNON BREAM: Good morning, Bill, this is what it looks like when you get one of these opinions, you may not be able to see, but barely just a sentence or two, telling you basically that court was deadlocked 4-4. We don't know how anybody voted. We can guess on this case, but essentially they're saying we wash our hands of this. The lower court decision stays in place. It was favorable to the unions. A group of teachers, public school teachers in California had challenged having to pay some form of agency fee to the union. They said we don't want to be represented by you. We don't like what you do politically. We don't want to give you a dime, should we be forced to do that? They had argued that under the First Amendment and their speech rights they shouldn't have to. Well, after the case was argued last fall, our best guess after hearing the arguments was that it was possibly going to be a 5-4 decision with Justice Scalia siding with more conservative members of the court and against the unions. It would have had a broad impact, taking away the ability for many public sector unions to force employees to support them financially even if they didn't feel like they could ideologically or in any other way. So we have waited to see what the court would do. This is the first big case that we knew the missing vote from Justice Scalia could have this tie impact. And now it gives us a sign of possibly things to come. There are other big cases that they are wrestling with that they heard before his death, including one on affirmative action. That will also be the next big one we watch for to see if we get another tie. Big win for unions today.

HEMMER: Not to make it too simple, but it means unions can charge non-union members dues, right?

BREAM: Yeah. Essentially, if you're represented by that union, you have to pay in whether you want to or not. [Fox News, America's Newsroom, 3/29/16]

Workers Are Not Forced To Join Unions, And Agency Fees Are Distinct From Membership Dues And Can Be Used Only To Support Collective Bargaining

The Atlantic: Agency Fees “To Cover The Cost Of Bargaining” Paid By Nonmembers Like Friedrichs “Are Different From Dues That Union Members Pay, Which Can Be Used ... For Political Expenses.” In a January 8 article discussing oral arguments in the Friedrichs case, The Atlantic explained the difference between agency fees, which “cover the costs of collective bargaining and other negotiations” that “even non-union teachers like Friedrichs benefit from,” and “dues that union members pay, which can be used by the unions for political expenses”:

The case concerns a teacher in California, Rebecca Friedrichs, who has sued the California Teachers Association, arguing that being required to pay a fee to the union violates her First Amendment rights. Friedrichs is not a member of the union, but, like many other public employees, is required to pay a so-called agency fee to cover the costs of collective bargaining and other negotiations with the school district--union activities that all teachers, even non-union teachers like Friedrichs, benefit from in the form of higher salaries and better benefits. To be clear, these agency fees are different from dues that union members pay, which can be used by the unions for political expenses such as lobbying and electoral work. The law allows public-sector employees to opt out of dues and just pay an agency fee to cover the cost of bargaining--an accommodation intended to protect people's First Amendment rights. Teachers who, like Friedrichs, have opted out of the union are still represented by it in various contract negotiations, which is why they are required to pay a fee. [The Atlantic, 1/8/16]

Economist Dean Baker: “Workers Are Never Required To Join Unions,” Even Though Unions Are Required To Represent Nonmember Workers. Economist Dean Baker, writing about a 2011 labor law bill in New Hampshire, explained that “collective bargaining agreements cannot require employees to join a labor union,” and that “national labor law requires that a union represent all workers who are in a bargaining unit regardless of whether or not they opt to join the union.” He continued:

This means that non-members not only get the same wages and benefits as union members, but the union is also required to represent non-members in any conflict with the employer covered by the contract. For example, if a non-member is faced with an improper dismissal the union is obligated to provide them with the same representation as a union member. [Alternet, 4/22/11]

Center For American Progress: “Federal Law ... Guarantees That No One Can Be Forced To Be A Member Of A Union, Or To Pay” For “A Political Or Social Cause They Don't Support.” A 2012 Center for American Progress Action Fund issue brief on anti-union laws explained that “federal law already guarantees that no one can be forced to be a member of a union, or to pay any amount of dues or fees to a political or social cause they don't support.” [Center for American Progress Action Fund, 2/2/12]

NLRB: Workers That Don't Want Full Union Membership “Pay Only That Share Of Dues Used Directly For Representation” Of Union Contract They Work Under. The National Labor Relations Board (NLRB) explained that workers at a unionized workplace do not have to be full union members; instead, they can opt to forego membership and pay only a smaller fee to offset the union representation and substantial benefits they receive, regardless of their membership status:

The NLRA [National Labor Relations Act] allows employers and unions to enter into union-security agreements, which require all employees in a bargaining unit to become union members and begin paying union dues and fees within 30 days of being hired.

Even under a security agreement, employees who object to full union membership may continue as 'core' members and pay only that share of dues used directly for representation, such as collective bargaining and contract administration. Known as objectors, they are no longer full members but are still protected by the union contract. Unions are obligated to tell all covered employees about this option, which was created by a Supreme Court ruling and is known as the Beck right. [National Labor Relations Board, accessed 3/29/16]