Public Sector Unions Dodge a Bullet on Agency Fees

by Timothy F. Murphy

The U.S. Supreme Court issued a decision in Freidrichs v. California Teachers Association this week; it was one of the most anticipated labor and employment cases of the session because it raised the issue of whether public employees could be forced to pay fees (commonly referred to as “agency fees” or “fair share fees”) to a union that they didn’t want to belong to.

The eight members of the court split 4-4 and issued a one sentence “per curiam” ruling: “The judgment is affirmed by an equally divided Court.”

The case was argued in January before Justice Scalia’s passing and many commentators predicted that the Court would rule that public employees could no longer be forced to pay “agency fees” or “fair share fees” to a union that they didn’t want to belong to. Most observers now believe that would have been the result had Justice Scalia lived to participate in this decision. Because the Supreme Court vote was tied, the lower court’s decision in favor of the union stands, but the decision does not create binding precedent for courts that may consider this issue in the future.

While public sector unions can breathe a little easier that their business model was left intact for now, it may be just a matter of time before the issue comes before the Supreme Court again when it is back to nine members. While we can’t predict the outcome, we are pretty sure it won’t be another tie.

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