Labor Law Expert Crain Comments on Public Sector, Union Fair-Share Dues in SCOTUS Case

Earlier this year, the Supreme Court handed down a 4-4 decision in Friedrichs v. California Teachers Association, which challenged the constitutionality of mandatory union dues that have been on the books in 23 in states for more than 30 years. The split decision left compulsory dues, also known as “fair share fees,” in place. Then, during its final conference of the term, the Court denied the petitioners’ request for a rehearing, bringing the case to a close – at least for now.

“Although nonmembers are able to opt out of paying for union expenditures related to political campaigns, lobbying, and organizing new members elsewhere, the ‘fair share fee’ requires them to bear the costs of collective bargaining, reflecting the state’s policy decision that collective bargaining is a valuable voice mechanism for employees that promotes stability in public sector employment,” said Marion Crain, the Wiley B. Rutledge Professor of Law, vice provost of the university, and director of the Center for the Interdisciplinary Study of Work & Social Capital.

“The challengers argued that public sector unions’ collective bargaining activities themselves are inherently political, and thus collecting dues to fund them from objecting non-members violated the individuals’ First Amendment associational and speech rights,” she added.

The 4-4 decision was considered the first major test of the court following the death of Associate Justice Antonin Scalia and was its first evenly split decision. Before Scalia’s death, many observers predicted that the court would overturn the mandate for fair share fees.

“The 4-4 decision, and the more recent denial of a rehearing, leaves intact the delicate balance struck by pre-existing law and avoids a significant ‘free rider’ problem that would have forced unions to use members’ dues as payments to finance the basic costs of administering and negotiating collective bargaining agreements applicable to all employees – members and non-members alike,” said Crain, who had signed an amicus brief that supported upholding the lower courts’ rulings.

“The decision was particularly important because of its timing during a presidential election campaign,” she continued. “The union in Friedrichs devoted about 40 percent of its members’ dues to political activity, and the bulk of these funds would have been diverted to cover collective bargaining and contract administration costs on behalf of non-members.”