Decisions Of Interest - Summer 2015

Friedrichs v. California Teachers Association

During its upcoming October 2015 term, the United States Supreme Court will reconsider the seminal case of Abood v. Detroit Board of Education in what could become a significant change in the law governing agency fees and public-sector labor unions. Agency fees are monies paid to unions by nonmembers, who do not wish to join the union, but who nonetheless benefit from a union's collective bargaining efforts on behalf of all employees in a given field. These fees seek to overcome the "free rider" problem; without agency fees, nonmembers would reap the rewards of a union's hard work without providing it any financial support. On June 30, 2015, the Supreme Court agreed to hear the case of Friedrichs v. California Teachers Association, in which the Plaintiffs have asked the Court explicitly to overturn Abood, which had authorized the imposition of agency fees in the public sector. The apparent hostility of a portion of the Supreme Court towards Abood, expressed in Harris v. Quinn, albeit in dicta, makes the granting of certiorari in Friedrichs worrisome.

In Harris v. Quinn, the Court held that only "fully-fledged" public employees fell within the ambit of Abood and could be required by law to pay agency fees, and that the Plaintiffs, home-care personal assistants, whose employment was controlled in large part by the individual customer rather than the State, were not "fully-fledged" public employees.1 Perhaps more notable than the holding of Harris, which found that Abood was inapplicable rather than invalid, was Justice Alito's scathing criticism of Abood and the concept of agency fees. Justice Alito accused the Abood court of inadequately addressing the First Amendment issues implicated by agency fee payments, misunderstanding prior Supreme Court jurisprudence, and failing to foresee practical problems that its holding created.2 As explained in our full discussion of Harris in the Fall 2014 issue of Stroock Reports: Public Employee Law, the Harris dicta all but invited an opportunity to overrule Abood.

Friedrichs unfortunately provides that opportunity, threatening to transform American labor law by invalidating nearly 40 years of Supreme Court jurisprudence surrounding agency fees. The Friedrichs Plaintiffs, ten California teachers, are challenging the validity of the California Educational Employment Relations Act, which permits California unions to utilize agency-shop arrangements.3 Plaintiffs brought their case in the United States District Court for the Central District of California and, for purposes of creating an appeal, sought a judgment on the pleadings in favor of the Defendants, which the District Court granted on the grounds that Abood "foreclose[s] Plaintiffs' claims."4 The Ninth Circuit summarily affirmed on November 18, 2014.

A public-sector union's right to collect agency fees from nonmembers is now at substantial risk. In their Petition for a Writ of Certiorari (i.e., permission for the Supreme Court to hear the case), Plaintiffs presented two questions to the Court: "[w]hether Abood...should be overruled and public-sector 'agency shop' arrangements invalidated under the First Amendment" and "[w]hether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech."5 Notably, Plaintiffs argued, as did Justice Alito in the Harris dicta, "the interests in 'avoiding free-riding' and promoting 'labor peace' cannot justify compelled subsidization of union speech on matters of public concern."6 Briefs amicus curiae were filed in support of the Petitioners by the Pacific Legal Foundation, National Right to Work Legal Defense Foundation, Inc., Mackinac Center for Public Policy, the Attorneys General of Michigan, Alabama, Arizona, Colorado, Georgia, Kansas, Texas, Utah and West Virginia, and former California Governor Pete Wilson and Former California Senate Majority Leader Gloria Romero, among others. Of the nine states whose Attorneys General joined the aforementioned brief amicus curiae, all but Colorado and West Virginia are right to work states. No amicus briefs in opposition appear on the docket.

After the Supreme Court granted Plaintiffs'...