Public Unions Dodge SCOTUS Bullet

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By Kimberly Strawbridge Robinson

March 29 — Funding for public sector unions was walked back from the brink after a 4-4 decision from the U.S. Supreme Court March 29.

The one-sentence opinion means a decades-old ruling allowing public unions to extract so-called agency fees from non-union members for collective bargaining activities, Abood v. Detroit Bd. of Educ., 431 U.S. 2019 (1977), will stand.

The high court has hinted that Abood was in danger in recent terms , but the justices seeking to overturn the precedent didn't have the votes after the unexpected death of Justice Antonin Scalia Feb. 13.

The issue—which could have been devastating to public unions due to the loss in funding —may yet return to the court. But attorneys familiar with the issue disagreed over Abood's eventual fate.

Scalia's Vote Flips Outcome

There was a general sense that Scalia was going to vote with conservatives against the public unions following oral argument , Paul Smith of Jenner & Block, LLP, Washington, told Bloomberg BNA March 29.

Smith argued on behalf of the unions in a similar case before the Supreme Court in 2014, Harris v. Quinn, 82 U.S.L.W. 4662, 2014 BL 180311 (U.S. June 20, 2014) .

The court in Harris stopped just short of overruling Abood. But it seemed like the other shoe would finally drop in Friedrichs, Smith said.

Nevertheless, the 4-4 decision—which isn't binding on other federal courts—leaves in place the lower court's pro-union ruling.

So it's very likely that Scalia's death changed the outcome of the case, Smith said.

Not Going Away

Patrick Semmens, of the National Right to Work Foundation, Springfield, Va.—whose organization seeks to overturn Abood—agreed.

An “evenly split court always seemed like the most likely outcome after the sudden passing of Justice Scalia,” Semmens said in a statement sent to Bloomberg BNA March 29.

But “the issue is not going away and could return to the High Court soon,” Semmens said.

Lower courts, citing Abood, have unanimously upheld agency fees in order to avoid the “free rider” problem whereby non-union members get the benefit of union representation without paying to support the union.

But those challenging agency fees argue that they force non-union members to subsidize union speech that they may vehemently disagree with.

“National Right to Work Foundation staff attorneys already have five cases working their way through the court system asking that mandatory union dues and fees be struck down as a violation of employees’ First Amendment rights,” Semmens said.

“Because the 4-4 split in Friedrichs has no precedential legal value, we fully expect the constitutionality of forced unionism to be back before the Supreme Court before too long,” Semmens said.

Drastic Change?

But Smith said the status of Abood will depend entirely on who is eventually confirmed to the Supreme Court.

We don't really know how President Barack Obama's current nominee Merrick Garland thinks about the issue, Smith said.

But if he—or the person ultimately confirmed to the high court—isn't inclined to overturn Abood, Scalia's death could have drastically changed the fate of public unions in the long-run.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at