For decades, “fair share” fees have been justified as a mechanism to help unions cover the costs associated with collective bargaining.  In the 1977 case of Abood v. Detroit Board of Education, the U.S. Supreme Court ruled that compulsory union dues are unconstitutional, but unions could collect fees necessary to cover costs such as those associated with collective bargaining.  Consistent with this notion, “agency shop” laws currently exist in more than twenty states.  These laws require members of a unionized profession to have to pay “fair share” or “agency” fees even if they are not members of the union.  California is one such state.

In Friedrichs v. California Teachers Association, Rebecca Friedrichs and nine other California teachers objected to being forced to support the California Teachers Association and challenged the imposition of the associated fees.  They have argued that requiring non-union members to pay fair share fees is a violation of their First Amendment rights, as they do not support the views of the union on a wide range of issues.  In opposition, the California Teachers Association has taken the position that the imposition of these fees is reasonable, as the union must negotiate on behalf of all bargaining unit members and assessing these fees prevents free riders.

At both the District Court and appellate court levels, the arguments of Friedrichs and her fellow teachers were rejected.  Citing precedent, the Ninth Circuit Court of Appeals ruled that fair share fees were constitutional and workers can be required to share in the cost of collective bargaining, although they do not have to pay for the union’s political activities.

On appeal to the U.S.  Supreme Court, the petitioners continued to argue that public sector agency shop laws violate their First Amendment rights, as unions are inherently political.  On behalf of the petitioners, the Center for Individual Rights has stated, “[T]he fees support work on collective bargaining agreements that ‘enshrine policies like teacher tenure, last in-first out layoff rules, and school assignments based on seniority, not need.  The plaintiff teachers object to the union’s positions on these political issues and say being forced to fund them as a condition of employment in a public school is unconstitutional.'” In addition, the petitioners have argued that instead of issuing fees across the board and then allowing non-union members to opt out of subsidizing non-chargeable speech, the union should only be permitted to charge individuals who affirmatively opt in to membership.

It has been the position of the California Teachers Association that existing precedent should remain intact. The CTA has argued that both union members and non-members receive the benefits of the collective bargaining conducted by the union.  Additionally, the CTA has emphasized the importance to government of being able to work with a single union when engaged in collective bargaining for a group of public employees.

Following oral arguments this past January, many observers believed the Supreme Court would issue a 5-4 decision against unions.   However, in a decision released earlier this week, the Court issued a 4-4 decision. This split decision, likely the result of having a vacant seat on the Supreme Court due to Justice Scalia’s death, serves to affirm the earlier decision of the U.S. Court of Appeals for the Ninth Circuit upholding such fees.

Lawyers involved in the case have announced that they will be filing a rehearing petition.