In a much anticipated case, an evenly divided U.S. Supreme Court has issued a per curiam order letting stand a Court of Appeals decision that allows unions to collect dues from public employees, even if those employees do not wish to join the unions. As a result of the Court's order, agency fee arrangements with public sector unions throughout the country remain enforceable.

In 2013, lead plaintiff Rebecca Friedrichs and nine other public school teachers, along with Christian Educators Association International, filed suit in the U.S. District Court for the Central District of California. They claimed that a California state law that permits unions to charge dues of all employees in a particular unit as a condition of continued employment violated their rights under the First and 14th Amendments of the U.S. Constitution.

Under the state statute, even employees who do not wish to join a union are required to pay ''agency fees,'' which normally are equivalent to union dues, in order to keep their jobs once a union has demonstrated that it represents a majority of the workers. At the end of each year, a union must inform non-members of the portion of the agency fee associated with its activities ''germane'' to collective bargaining and that portion associated with other union activities. Non-members then elect to receive either a rebate or a reduction to future fees equal to the amount of the fee not associated with collective bargaining.

According to plaintiffs, this arrangement violated both their rights to free speech and their rights to freely associate by compelling them to make financial contributions to union activities, some of which are contrary to plaintiffs' personal interests and religious beliefs. The opt-out arrangement, they argued, was unduly burdensome, because it required informing the unions of their intentions each year and made them susceptible to pressure from the unions and their members. Plaintiffs also claimed that even requiring them to contribute to union collective bargaining activities violated their rights, because that provides financial support for other union activities and were in some cases themselves contrary to plaintiffs' personal interests and beliefs.

Relying on the 1977 Supreme Court decision Abood v. Detroit Board of Education, which had specifically permitted agency fee arrangements like that created by the California statute, the District Court dismissed the plaintiffs' claims. The Ninth Circuit Court of Appeals did the same.  But in June 2015, the Supreme Court garnered widespread attention by accepting the plaintiffs' petition for certiorari, signaling that a majority of justices would be willing to revisit Abood.  Based on his past writings and questions he raised during oral arguments in Friedrichs v. California Teachers Association, many observers expected the late Justice Antonin Scalia to side with plaintiffs. If he had, his vote would have decided the case in their favor.

By rule, an order by an equally divided Court affirms the judgment of the lower court—here, the Ninth Circuit. Therefore, California's agency fee arrangement with its teachers' unions will remain in place, as will similar arrangements with public sector unions in other industries across the country.  While the order made clear that four sitting justices would vote to revisit Abood, whether they will have the opportunity to do so will depend on the vote of Justice Scalia's eventual successor. Until the Court returns to full strength, public employers should expect agency fee arrangements to remain valid where they are permitted by state law.

Attorneys in Ballard Spahr's Labor and Employment Group routinely assist and counsel public sector employers.

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