The United States Supreme Court appears headed toward outlawing “agency-shop” or “fair share” provisions in public sector collective bargaining agreements, requiring non-members to pay union fees, sometimes reluctantly, in lieu of dues.  Frederichs v. Cal. Teachers Ass’n, No. 14-915, argued Jan. 11, 2016.

The Supreme Court held in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), that public-sector unions are constitutionally prohibited from using the fees of objecting nonmembers for ideological or political purposes that are not germane to the union’s collective-bargaining duties. The Court, however, upheld a state law authorizing unions and government employers to enter into agency-shop agreements.  Under these arrangements, a union can levy a fee on employees who are represented by the union in collective bargaining but who object to becoming union members. For public sector employees, Abood remains the controlling standard.

Many states, including California, currently authorize such agreements.  In the public sector, agency fee arrangements raise First Amendment concerns because they force individuals to contribute money to unions as a condition of their government employment.

In Frederichs, ten California teachers requested the Supreme Court overrule Abood and find the agency fees unconstitutional.  When given the opportunity to overturn Abood in 2014, the Court declined.  Instead, in Harris v. Quinn, the Court held that “quasi-public” employees (those who do not actually work for a public employer, but who are paid by public funds, such as Medicaid) were not required to pay agency-shop fees, but left Abood (as it pertains to “full-fledged” public employees) intact.  For an extensive discussion of Harris v. Quinn, click here.

Although Justice Antonin Scalia’s earlier statements on the issue led some Court observers to believe he might support the union in Frederichs, his questioning at oral argument suggested otherwise. In Harris v. Quinn, he appeared to empathize with the union’s argument that agency fees were required to prevent “free-riders” (individuals who accept the “benefits” of collective bargaining without paying the costs associated with it). Now, he seemed to question the necessity for those fees to sustain the union’s survival.  Justice Anthony Kennedy also noted, “[t]he union basically is making these teachers ‘compelled riders’ for issues which they strongly disagree.”

Chief Justice John Roberts, Justice Scalia and Justice Kennedy seemed to support the teachers. However, as noted by Justice Elena Kagan, the teachers have a “heavy burden” to convince the Court to overturn long-standing precedent. Labor unions in the public sector depend on compulsory financial support for their bargaining strength and political influence. Approximately 5 million public sector employees are covered by union contracts and pay a compulsory fee. That means huge sums of money for unions representing public employees are at stake.

A decision is expected in the spring.


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.