New Threat To Public Sector Labor Unions

Over the past week the public’s attention has been focused on several major decisions the U.S. Supreme Court released, involving issues such as same-sex marriage, the Affordable Care Act and drugs used for lethal injections in death penalty cases. In the midst of the release of these major decisions, the Supreme Court has also issued some routine orders concerning cases it has decided to hear next year.

One of those orders grants a petition for a writ of certiorari in Friedrichs v. California Teachers Association, a case out of the Ninth Circuit Court of Appeals, which concerns whether public employees can be forced to pay fees for the non-political activities of a labor union.  By agreeing to review that case, the Supreme Court has accepted the petitioners’ invitation to consider overruling the court’s 1977 decision in Abood v. Detroit Education Association, which answered that question in the affirmative.

More specifically, Abood held that a public employee has a First Amendment right to refuse to support a union’s political activities, but still must pay an “agency fee,” which covers the union’s non-political activities, such as collective bargaining.  This distinction prevents unionized employees from “free riding,” i.e., from enjoying the benefits of the collective bargaining process without contributing to the costs thereof.

The petitioners in Friederichs argue, however, that all public sector labor union activity is inherently political and that a public employee has a First Amendment right not be compelled to support that activity if they object to it.  The Supreme Court’s decision to hear the Friederichs case suggests that at least four justices are receptive to that argument, which could be devastating to public labor unions.

Lyle Denniston, writing over at ScotusBlog, has more to say about this important case.