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Supreme Court Split Saves Fair Share

March 31, 2016

By Noah R. Jordan, Esq.

Earlier this year, we published an article regarding a challenge by a group of non-union member California public school teachers against the “fair share”/agency fee they are required to pay their union in exchange for representation in collective bargaining matters.  For a refresher in the facts of the case, you can find the article here.

On Tuesday, the Supreme Court issued a 4-4 Per Curiam decision in the case, meaning that the lower court’s (the Ninth Circuit Court of Appeals) ruling, which was in favor of the union to uphold fair share fees, will stand.  The Court’s one sentence decision merely read, “The judgment is affirmed by an equally divided court.”  The decision obviously was impacted by the death of former Justice Antonin Scalia, who had been a reliable conservative vote on the Court and was universally expected to vote in favor of the plaintiff teachers.  The plaintiffs announced that they plan to file a petition for rehearing with the Court, which they expect will be ruled on after Justice Scalia’s vacant seat has been filled.

For the time being, this is at worst a reprieve and at best a major victory for the union movement.  Had the Court overturned the Ninth Circuit Court’s ruling, public sector unions would have been forced to continue to represent non-members in collective bargaining but would not have been able to collect any fees for doing so, a clearly untenable situation.  Due to the split decision, however, all public sector employees covered by a collective bargaining unit will have to continue to pay their fair share fee.

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