Four Pennsylvania school teachers, two Santa Clara Valley Medical Center pharmacists, and three New York school workers have filed separate suits challenging the constitutionality of state requirements permitting the unions that represent them to require them, if they do not join and pay dues, to pay a “fair share fee” (similar in amount to the dues paid by union members) toward their union representation.

In Abood v. Detroit Board of Educ., 431 U.S. 209 (1977), the Supreme Court held that fair share fees were constitutional and that employees could be compelled to pay them as a condition of employment “insofar as [they] are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The Pennsylvania, California, and New York public sector employees (represented by the National Right to Work Legal Defense Foundation) seek to overturn that precedent and have the fees outlawed. They argue that the fee requirements violate their First Amendment rights.

In Friedrichs v. California Teachers Assoc., 136 S. Ct. 1083 (2016), the Court had an opportunity to reconsider its decision in Abood. The plaintiffs had argued that their First Amendment rights were violated when the government, through a collective bargaining agreement, required the employees to pay a fair share payment to a union whose views they did not necessarily wholly share. However, following the death of Justice Antonin Scalia, who was widely expected to cast the fifth vote against the California fair share fee requirement, the Court split 4-4. (The tie vote resulted in an affirmance of the lower court decision upholding the fees.)

President Donald Trump is expected to announce his choice to fill the Supreme Court vacancy on February 2. If, as anticipated, he nominates a conservative jurist who is confirmed by the Senate, the likelihood will increase greatly that Abood will be overturned and fair share fees will be ruled unconstitutional.









Photo of Ian B. Bogaty Ian B. Bogaty

Ian B. Bogaty is a Principal in the Melville, Long Island Office.  Mr. Bogaty received his B.A. from Binghamton University in 2000, and his J.D. from Hofstra University – School of Law in 2003.  Mr. Bogaty received a Masters of Law in Labor and Employment Law from New York University in 2004.  He is admitted to practice in New York. He is admitted to practice in New York, and the United States District Courts for the Southern and Eastern Districts of New York.

Since joining Jackson Lewis in June 2004, Mr. Bogaty has practiced in traditional labor law areas such as collective bargaining, labor arbitration, contract administration and representation and unfair labor practice proceedings before the National Labor Relations Board.

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.