HR Management & Compliance

Compulsory public-sector union dues survive deadlocked Supreme Court

A 4-4 U.S. Supreme Court ruling in a closely watched case on public-sector unions leaves previous legal precedent intact, effectively sealing a union victory.

On March 29, the evenly split Court issued a one-sentence ruling in Friedrichs v. California Teachers Association that allows the decision of the U.S. 9th Circuit Court of Appeals to stand. If not for the death of Justice Antonin Scalia in February, the ruling may have gone the other way.

“With Justice Scalia’s death, public-sector unions dodged not just a bullet but a cannonball,” Jeffrey Sloan, an attorney with Renne Sloan Holtzman Sakai LLP in San Francisco, said after the ruling was announced.

The Friedrichs ruling leaves intact the precedent set in Abood v. Detroit Board of Education, a 1977 case that allowed “agency shop” arrangements in the public sector. In an agency shop, nonunion members must pay union fees that pay for collective bargaining but not fees that go toward political activities.

The challengers in Friedrichs argued that agency shop arrangements violate the First Amendment to the U.S. Constitution by requiring nonunion members to make payments that may subsidize political speech they disagree with.

The tie illustrates the significance of the Supreme Court’s open seat. When the case was heard in January, Scalia’s comments led many to believe he would vote against unions in the matter.

Sloan said Scalia signaled his view when he said, “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”

“The Court appeared poised to discard Abood despite its standing as precedent for almost 40 years,” Sloan said. “And [the Court] appeared ready to do that for all public-sector agency shop arrangements nationally­—not just the unique arrangement under California law that required all schools and community colleges to implement agency shop at a union’s request.”

Sloan said a ruling against Abood might not have had a significant impact on public-sector unions that enjoy strong member support—employees such as police officers, firefighters, teachers, and skilled blue-collar workers. But he said such a ruling likely would have caused unions representing “blue-collar workers outside of the crafts as well as nonprofessional white-collar workers to reorient their spending priorities.” He stated, “For one thing, their existing massive ability to support Democratic candidates in national elections might well have been dissipated—demonstrating how . . . Supreme Court decisions can be broad-ranging and inherently political.”

An analysis of the ruling on the Supreme Court’s blog reports that a group involved in the case, the Center for Individual Rights, said it would request a rehearing in the event of a 4-4 split. The blog post explained that the Court’s rules require a rehearing request to be filed within 25 days of a ruling and be approved by five justices.

For more information on the case, see Jeffrey Sloan’s article in the August 27, 2015, issue of California Employment Law Letter. Sloan can be reached at