Concerted Activity: President Obama and Senate Republicans Must Work Together to Set Precedent on the Mandatory Payment of Union Legal Fees

By: Nicholas Graziano

Pending before the Supreme Court currently is the issue of whether public unions, comprising of workers such as teachers, bus-drivers, policemen, postal workers and the like should be required to pay for “representation fees” when a union in their public sector engages in collective bargaining.1  During the initial arguments of Friedrichs v. California Teacher’s Association, the Supreme Court Justices appeared ready to overrule a more conservative, 1977 opinion held by the court in Abood v. Detroit Board of Education.2  There, the Supreme Court held First Amendment rights are not violated where public sector employees must pay for a union’s legal fees and costs as non-union employees often benefit from such activity.3  Now, lead plaintiff Rebecca Friedrichs and other California teachers have challenged this holding, claiming it is a violation of their free speech rights under the First Amendment.4

According to some, the initial arguments of the plaintiffs appeared to be persuasive, and a 5-4 victory was in the California teachers’ sights.5  It appeared that the liberal justices recognized Friedrichs’ persuasive argument, as Justice Elena Kagan attacked the plaintiff’s arguments on the grounds of stare decisis as opposed to the merits of their claim.6  Conservative justices also seemed to recognize the strong merits of the plaintiff’s arguments, as after hearing argument from the California Solicitor General, though Justice Antonin Scalia voiced sympathy for the state’s need to run workplaces smoothly, he then cited many federal unions that succeeded without legal fees received from non-members.7  Additionally, supporters of the mandatory fee argue a “free rider problem”, essentially which non-union employees will benefit from the collective bargaining of public sector unions without contributing to costs of such activity.8  Justice Kennedy argued that, if the Supreme Court were to rule in favor of required legal fees, this would instead create a “compelled rider” problem, where public sector employees would have no choice but to pay for collective bargaining they may not agree with.9

Before the unfortunate and untimely death of Associate Justice Antonin Scalia earlier this month, the majority of Court reporters predicted the Friedrichs decision would come out in a 5-4 majority in favor of Friedrichs and her fellow plaintiffs.10  However, if President Obama fails to appoint a new Justice, or the Senate refuses to confirm a replacement Justice, the Supreme Court will likely rule in a 4-4 decision, setting no precedent and upholding Abood until Friedrichs and other plaintiffs can file a petition for rehearing before a full bench.11  In such a closely contested matter involving the “fundamental individual rights” of non-union members, not only do the parties involved deserve an authoritative and final decision by a full Supreme Court, the entire country, chalked full of public sector employees, deserves such an outcome.12   A divided opinion of the Court due to the failure of the President and the Senate to concert together to replace the illustrious Justice Scalia will only undermine labor peace, leaving the compulsory collection of dues subject to ongoing doubt, dispute, and further litigation.13

1    See Friedrichs v. California Teacher’s Association, SCOTUSblog, (last viewed Feb. 22, 2016), http://www.scotusblog.com/case-files/cases/friedrichs-v-california-teachers-association/.

2    Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).

3    See Id.

4    See Friedrichs v. California Teacher’s Association, SCOTUSblog, (last viewed Feb. 22, 2016), http://www.scotusblog.com/case-files/cases/friedrichs-v-california-teachers-association/.

5    Amy Howe, Union Fees in Jeopardy: In Plain English, SCOTUSblog, (Jan. 11, 2016, 5:08 PM), http://www.scotusblog.com/2016/01/union-fees-in-jeopardy-in-plain-english/.

6    Id.

7    Id.

8    Id.

9    Id.

10  Union Fees Case is not Over, Center for Individual Rights, (Feb. 17, 2016), https://www.cir-usa.org/cases/friedrichs-v-california-teachers-association-et-al/.

11  Id.

12  Id.

13  Id.

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