The constitutionality of “fair share” provisions, requiring non-members covered by public-sector collective bargaining agreements to pay union fees, will be reviewed by the U.S. Supreme Court. Friedrichs v. California Teachers Association, No. 14-915.

In Friedrichs, ten California teachers and the Christian Educators Association International sued the California Teachers Association, the National Education Association, and others, for requiring public school teachers, as a condition of employment, either to join the union representing teachers in their district or pay the equivalent of dues to that union — a “fair share” fee — for union bargaining services.

In 1977, the Supreme Court held in Abood v. Detroit Board of Education that such fees are constitutional “insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The plaintiffs in Friedrichs seek affirmative answers to two questions:

  1. Whether Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.
  2. Whether 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.

In its 2014 decision in Harris v. Quinn, the Court invalidated an Illinois statute requiring home-based personal care providers to support a union financially that has a collective bargaining relationship with the State where the care providers do not wish to join or support the union. The Court there said the “Abood Court’s analysis is questionable on several grounds.”

Unions did not welcome the Court’s decision to take up Friedrichs. In a joint statement subtitled, “Lawsuit Seeks to Curtail Freedom of Firefighters, Teachers, Nurses, First-Responders to Stick Together and Advocate for Better Public Services, Better Communities,” the leaders of the National Education Association, American Federation of Teachers, California Teachers Association, American Federation of State, County and Municipal Employees, and Service Employees International Union wrote:

“We are disappointed that at a time when big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance, the Supreme Court has chosen to take a case that threatens the fundamental promise of America—that if you work hard and play by the rules you should be able to provide for your family and live a decent life. . . .

“America can’t build a strong future if people can’t come together to improve their work and their families’ futures. Moms and dads across the country have been standing up in the thousands to call for higher wages and unions. We hope the Supreme Court heeds their voices.”

 

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.