A challenge to a state law mandating the payment of union fees by certain public employees met with an unusual, if not unexpected, end in March. The U.S. Supreme Court heard oral arguments in January 2016 in Friedrichs v. Cal. Teachers Assoc., and observers at the time suggested that the court seemed to be leaning toward striking down the law in question. The death of Supreme Court Justice Antonin Scalia in February, however, left the court evenly divided, politically speaking. The court tied 4-4 and therefore had to allow the lower court ruling to stand. Friedrichs, 578 U.S. ___ (2016).The plaintiffs alleged that a law requiring them to pay union fees even if they were not union members violated their First Amendment rights. This type of arrangement is often known as a “fair share provision,” since employees who are not union members still benefit from a union’s collective bargaining activities. Employers with fair share provisions are known as “agency shops.” When an employer enters into a contract with a union that requires all employees to join the union if they are not already members, and to remain members for the duration of their employment, this is known as a “union shop.”
Some states have enacted laws that prohibit union shops and agency shops. Supporters of these laws call them “right to work” laws, while critics often call them “right to work for less” laws. One argument in favor of requiring union membership or the payment of a fee is that it reduces the problem of “free riders,” an economic term referring to people who benefit from something, such as collective bargaining agreements, without paying for them.
New Jersey does not have a “right to work” law, meaning that contracts between unions and employers may include union shop or agency shop provisions. Some states have laws that establish agency shops in public workplaces. The Supreme Court ruled that these types of arrangements are constitutional in Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), although the court partly overturned that ruling two years ago in Harris v. Quinn, 573 U.S. ___, 134 S. Ct. 2618 (2014).
Abood involved a challenge to a state law that maintained a union shop for public employees. A unanimous Supreme Court upheld the constitutionality of the law, ruling that non-members may be required to pay fees to help cover the unions’ collective bargaining expenses. The court also held that these fees may not be applied toward “ideological expenditures.” Abood, 431 U.S. at 241. In Harris, the court limited the scope of Abood by ruling 5-4 that part-time home care workers, whose wages are funded through Medicaid, are not “full-fledged” public employees, and therefore they are not subject to a state agency shop law. Harris, 134 S. Ct. at 2638.
The plaintiffs in Friedrichs alleged that an agency shop law that applies to public school teachers violated their First Amendment rights. They took the unconventional approach of filing a motion for judgment on the pleadings, which asked the court to rule in favor of the defendants in order to expedite an appeal to the Supreme Court. The trial court obliged, citing Abood. Friedrichs, No. 8:13-cv-00676, order (C.D. Cal., Dec. 5, 2013). The appellate court summarily affirmed the ruling. No. 13-57095, slip op. (9th Cir., Nov. 18, 2014). A deadlocked Supreme Court also affirmed it in March 2016.
If you need to speak to a civil rights lawyer in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.
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