By a 4-4 decision, the U.S. Supreme Court has affirmed a lower court ruling that public sector unions could require employees to pay an agency fee to a union as a condition of employment. Friedrichs v. California Teachers Association, No. 14-915 (Mar. 29, 2016).

The plaintiffs had argued that their First Amendment rights were violated when the government, through a collective bargaining agreement, required the employees to pay an agency fee (also known by the euphemism “fair share payment”) a union whose views they did not necessarily wholly share. Agency fees are similar in amount to the dues paid by union members. Read our previous post for more detail.

In a single sentence — “The judgment is affirmed by an equally divided court” — the justices demonstrated that the passing in February of Justice Antonin Scalia will have a distinct effect on cases before it. (Approximately a third of the cases before the Supreme Court in recent years have been decided by a 5-4 vote.) Many court observers believed Justice Scalia would have voted with the plaintiffs and found a government requirement that public sector employees pay a mandatory agency fee violates the First Amendment rights of those workers. During oral argument, Justice Scalia and others justices expressed the view that collective bargaining was political speech and the requirement that public sector employees pay mandatory agency fees was “compelled speech.”

Had the Court reversed the appeals court decision, public sector unions stood to lose millions of dollars in fees as employees exercised their new right to decline to pay an agency fee. For example, after Wisconsin in 2013 prohibited unions who represented state employees from charging mandatory agency fees, AFSMCE Council 24’s revenue in the state dropped from $5 million in 2010, before the law changed, to $1.5 million.

The High Court’s decision does not finally resolve the issue. The plaintiffs could ask for a rehearing, although success is unlikely because an affirmative vote of five justices is required and a rehearing is rarely granted. In addition, several cases that raise the same issue are working their way through the lower courts. One of them may reach the Supreme Court for a definitive ruling after the Court is restored to a full complement of nine justices.

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Photo of Patrick L. Egan Patrick L. Egan

Patrick L. Egan is a principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Patrick works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Patrick has represented employers in card-signing efforts and…

Patrick L. Egan is a principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Patrick works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Patrick has represented employers in card-signing efforts and representation and decertification campaigns. He has conducted union awareness and positive employee relations training for hundreds of companies and employer groups. He has also assisted dozens of employers to preempt, prepare for and defend against union corporate campaigning.

Patrick has appeared for employers in representation, objections and challenged ballot hearings at the National Labor Relations Board. He has also represented employers in unfair labor practice charge investigations and trials. Patrick has also represented employers before the Massachusetts Commission Against Discrimination, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration and other state and federal agencies. Patrick has served as chief spokesman at hundreds of collective bargaining negotiations, including negotiations seeking a first contract and those aimed at reaching a successor contract. He speaks frequently before various employer and human resources groups on a variety of labor relations topics.

Patrick was a four-year starter and a senior captain of the varsity soccer team at Holy Cross.

After practicing management-side labor law at smaller firms in Springfield and Boston, Massachusetts, Patrick joined Jackson Lewis in 1990. He was elected a partner effective January 1, 1995.

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…

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.