Coming up on January 11: Supreme Court Oral Argument about Public Sector Agency Shop

Over forty years ago, in the case Abood v. Detroit Board of Education, the United States Supreme Court approved of agency fees.  Agency fees are paid to a Union through a payroll deduction from the non-members’ wages.  Agency fees are composed of two portions:  “chargeable” fees, which roughly correspond to a Union’s expenses incurred in negotiating, administering, and enforcing the collective bargaining agreements that govern the represented employee’s terms and conditions of employment, and “non-chargeable” fees, which roughly correspond to a Union’s other expenses (including but not limited to organizing, charitable, and most lobbying/political expenses).

In Friedrichs v. California Teachers Association, the United States Supreme Court is considering whether agency shop agreements are constitutional in the public sector.  The Court will also consider whether it is legal to charge a non-member an amount above the “chargeable rate” unless they object (as opposed to charging dues only to those who affirmatively agree). 

The Court has stated the issues as: “(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector ‘agency shop’ arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.” 

The Court has scheduled oral argument on January 11.  The transcript will be available to the public at www.supremecourt.gov shortly after the oral argument, and the audio recording will be available the Friday after. 

Please contact your public sector labor counsel with further questions. 

By Anne Yen | January 8, 2016

Legal Developments