Opinion analysis: Result but no guidance on public unions’ fees (FINAL UPDATE)

Lyle Denniston Independent Contractor Reporter

March 29th, 2016

Final update 11:44 a.m.

Analysis

The most important labor union controversy to reach the Supreme Court in years sputtered to an end on Tuesday, with a four-to-four split, no explanation, and nothing settled definitely.  The one-sentence result in Friedrichs v. California Teachers Association will leave intact, but on an uncertain legal foundation, a system of “agency fees” for non-union teachers in California — with the legal doubts for public workers’ unions across the nation probably lingering until a ninth Justice joins the Court at some point in the future.

The practical effect was to leave undisturbed a ruling by the U.S. Court of Appeals for the Ninth Circuit, which had simply found itself bound by a prior Supreme Court precedent upholding such fees against constitutional challenge.  The Ninth Circuit had before it a case specifically filed as a test of that precedent, and only the Supreme Court could revisit that prior ruling, binding on all lower courts.

The Court had heard the Friedrichs case on January 11 and, from all appearances then, it seemed to be on its way toward a five-to-four decision to declare that it would be unconstitutional for unions representing government employees to charge fees to workers they represent but who are not among its members, even when the fees cover the costs of normal union bargaining over working conditions, not lobbying or outright political advocacy.

But the death of Justice Antonin Scalia last month left the Court to either find a way still to decide the case, or to end it with an even split.  If it had actually tried since Scalia’s death to find a way around a split, that effort clearly came up short.  The result set no precedent, and thus left the constitutional issue dangling.

Shortly after Justice Scalia died, the Center for Individual Rights, a conservative legal advocacy group involved in the Friedrichs case, announced that it would ask the Justices to schedule a rehearing on the case if it were to split four to four.  The Center said at the time that it expected such a request would put the case off until the Court’s new Term, which is slated to begin on October 3.  (UPDATE: Lawyers involved said Tuesday that a rehearing petition will, in fact, be filed.)

Under the Court’s rules, a rehearing request in the Friedrichs case would have to be filed within twenty-five days following Tuesday’s ruling.  It would require the votes of five Justices to order such a reconsideration, and one of the five must have been one who had joined in the decision.  It is unclear how that rule would work when the judgment had been reached by an evenly divided Court.

Tuesday’s result in this key case marked the second time that the Court, with its membership reduced by one, had divided evenly in a case it had reviewed.  A week ago, it did so in a case about spouses’ responsibility for each others’ debts (Hawkins v. Community Bank of Raymore).

Although President Obama has nominated Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit to succeed Justice Scalia, Senate Republican leaders have vowed to take no formal action on that nomination until after the presidential election on November 8.  It thus is unclear at this point when a ninth Justice might join the Court, and help it avoid further four-to-four splits in deciding cases.

If the GOP position does not change, a new Justice might be approved in a post-election Senate session, but otherwise would probably not be approved in time to join the Court before next March.

If the Court were to decide not to rehear the Friedrichs case, another option for confronting the same agency fee question would be in a different case that had worked its way through lower courts, and reached the Justices after there was a full bench.

How Scalia’s Death May Grant Public-Sector Unions A Reprieve

Dave Jamieson

Labor Reporter, The Huffington Post

02/13/2016

A potentially devastating ruling for organized labor may no longer come to pass.

The unexpected death of Supreme Court Justice Antonin Scalia this weekend will scramble much more than just election-year politics. It could recast several decisions pending before the high court, including arguably the most important labor case in years.

With Friedrichs v. California Teachers Association, the court’s conservative majority had the opportunity to make the entire U.S. public sector akin to a right-to-work zone. That would have given hundreds of thousands of public-sector workers the prerogative to opt out of funding the unions that represent them -- delivering a substantial blow to both organized labor and the Democratic Party it pours money into.

But with a 4-4 split in the court along ideological lines, there’s now a good chance that the lower court’s ruling in favor of the union will stand.

It didn’t always seems so. During recent oral arguments, the conservative justices appeared eager to overturn long-standing legal precedent and ban so-called fair share fees. Unions must represent all workers in a bargaining unit -- even those who don’t want representation -- so where state law allows it, workers can be required to pay fair share fees to help cover the cost of collective bargaining. For unions, such an arrangement assures that no worker gets representation for free.

For years, conservative antiunion groups have sought to ban fair share fees, and Friedrichs provided perhaps their most sweeping opportunity yet. The group of California teachers named in the suit argued that public-sector unionism is inherently political and that being forced to pay fair share fees therefore violated their First Amendment rights. If the court agreed, no member of a public-sector union in the U.S. could be compelled to pay them.

Many legal observers expected that Scalia would serve as the swing vote. In a decision years ago, the conservative justice upheld the legal rationale undergirding fair share fees, seemingly agreeing with unions that the fees were necessary to prevent workers from free-riding. But during oral arguments last month, Scalia’s line of inquiry suggested the change of heart that organized labor had feared.

"The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition," Scalia told the lawyer who argued on behalf of public unions.

Until Saturday, organized labor was fearing the worst. But now, with the likelihood of the court’s four liberal justices backing fair share fees, Friedrichs may no longer be the looming disaster for public-sector unions that it seemed.

On Saturday, Randi Weingarten, the president of the 1.6-million-member American Federation of Teachers, tweeted her condolences over Scalia's death. She was quick to add that the passing "raises lots of issues for cases like #friedrichs."

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The conservative National Right to Work Committee (with its wealthy owners/donors), who championed the cause of Friedrichs have gained nothing by Justice Antonin Scalia’s death.

 The outcome of Friedrichs  will be decided by 4 - 4 that means a tie, draw, standoff.

President Obama said Saturday night he would seek to fill the Supreme Court seat left vacant "to fulfill my constitutional responsibility to nominate a successor in due time."

We hope President Obama will pick the replacement who is pro unions and liberal preferably an African American male/female that would be a nail in the coffin of the conservative National Right to Work Committee agenda.