An old case, Abood, holds that unions can require nonunion members to pay their fair share of union dues because they benefit from the union negotiating for them. Abood said this applies to public sector jobs like state jobs. Abood v. Detroit Bd. Of Ed., 431 U.S. 209, 232 (1977). Specifically, Abood says a state may allow public sector unions to charge nonunion members fees “insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” 431 U.S. at 232.
However, the Supreme Court recently suggested the opposite. In Harris v Quinn 573 U.S. ___ (2014) the court held that the First Amendment prohibits a State from forcing non-union members to pay for union speech on matters of public concern. Specifically, the Supreme Court wrote as follows:
“This case presents the question whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support. We hold that it does not, and we therefore reverse the judgment of the Court of Appeals.”
This language is the first sentence of the Supreme Court opinion in Harris versus Quinn. The case was decided 5 to 4. The split was ideological, with the conservatives in the majority. Justice Scalia was among those in the majority. However, this case was limited to personal care workers in a very limited and narrow setting.
There is a new case that was making its way up to the United States Supreme Court called Friedrichs vs the California teachers Association. In Friedrichs the Ninth Circuit Court of Appeals ruled that Abood controls, so public sector unions can charge nonunion members fees. The Supreme Court took the Friedrichs case from the Ninth Circuit.
I predicted that the Supreme Court would overturn Abood and hold that, in public sector jobs, nonunion members would not be required to make donations to the union. Here is a video of my prediction when the court decided to take Friedrichs.
I continue to believe that, had Scalia survived, that the Court would have reversed Abood. However, Justice Scalia was found dead yesterday. I believe this will significantly affect the court’s opinion. With Scalia deceased, the decision is likely to split evenly, 4 to 4. If the decision is even, as I believe it will be, the Ninth Circuit Court of Appeals decision will stand. So will the Abood case.
In Illinois, our governor has expressed some desire to limit union power in with respect to state employees. I predicted that the Supreme Court would give governor around what he wanted even if the Democrat controlled legislature would not. Scalia’s death changes my prediction. I now believe that Abood will stand. The governor cannot count on the United States Supreme Court to weaken public sector unions. He will have to get any concessions from the legislature.
As always, when predicting what another entity will do, one can never be sure. Nevertheless, I believe the Supreme Court would have overturned Abood. The writing was on the wall. Scalia’s death threw an interesting monkey wrench into the equation. As John Prine said, “It goes to show you never can tell.”