Attorneys for the Plaintiff California public sector teachers in the case of Friedrichs v. California Teachers Association have taken the extraordinarily rare step of petitioning the Supreme Court for a rehearing, and have also requested that such rehearing take place after the Court obtains a full complement of Justices capable of reaching resolution by a five-Justice majority. The request for rehearing was prompted by the Court’s one sentence decision in the Friedrichs case on March 29, 2016, upholding the judgment of the Ninth Circuit without decision by an “equally divided Court.” The split decision left intact, for now, the constitutionality of “agency shop” fees for non-union member public employees who are represented by a union. It had been highly anticipated when the case was heard by the Court in January 2016 that a majority of the Court, including Justice Antonin Scalia, would vote in favor of Plaintiffs to reverse the Ninth Circuit in a 5-4 decision. Such a decision would have also potentially reversed the Supreme Court precedent upon which the Ninth Circuit’s decision was based, Abood v. Detroit Board of Education. However, the chances of reversal dimmed with the unexpected death of Justice Scalia a month later.
At issue in Friedrichs is the right of public employee unions to require non-union members to pay compulsory “agency shop” fees. Agency shop arrangements require non-union employees, who are represented by a union that has won the right to bargain for all employees (union members and non-union members) in the bargaining unit, to pay an “agency fee” as a condition of continued employment. Under Abood, the “agency fee” may be assessed in order to pay for union activity related to bargaining for rights of all employees in the bargaining unit. However, the “agency fee” assessed cannot be used to pay for a union’s political activity, including lobbying and support of political candidates. Agency shop fee arrangements are currently permitted in over 20 states, including California, and affect millions of public employees. The teacher plaintiffs in Friedrichs have asserted that requiring employees who choose not to join the union to pay an agency fee to the union to support even bargaining-related activities violates their free speech rights under the First and Fourteenth Amendment rights.
The last time the Supreme Court granted a similar rehearing petition was in 1947. However, even if the rehearing petition is ultimately denied, several agency fee cases are winding their way through the courts and could eventually be heard by a full Supreme Court. For now, the result in Friedrichs leaves a question still hanging over the ultimate continued viability of Abood on this important labor relations issue.