The United States Supreme Court continued its assault on fair share fees (also known as agency fees) last week in an opinion issued in Harris v. Quinn. The good news is that the majority did not find fair share fees unconstitutional, as many had feared it would. Carroll Burdick had filed an amici brief with the Supreme Court on behalf of a national coalition of public safety employees’ unions urging the Court not take that drastic step. The coalition was composed of nearly one million public safety employees.

The bad news is that the court also continued to express hostility toward fair share fees and union shop in general, as it had in its 2011 decision, Knox et al., v. SEIU, Local 1000. In each case, the court narrowly ruled on the issue at hand: Harris held in-home health workers are “partial” public employees not subject to fair share fees; Knox set rules on special assessments. In each case, the court departed from that subject matter and attacked the legitimacy of its own precedents, including decades of well-established law upon which many unions have relied for decades, to pass along some of the costs of representation to non-members. Both times, Justice Alito wrote for the majority. The court left prior precedent intact, based on stare decisis, which is a doctrine that supports leaving prior rulings undisturbed. Stare decisis was the reason the Seventh Circuit in Harris had rejected the lawsuit. The Seventh Circuit relied on decades of case law permitting unions to collect fair share fees, including Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), and Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977). If Justice Alito had gathered enough votes to strike down fair share fees, certain unions that rely upon charging non-members for representational costs would now be crippled.

There are other significant reasons for why the Supreme Court should not overrule decades of precedent. State law collective bargaining machinery—including public safety employees’ negotiated contracts—are built on its agency fee structure. Moreover, the Court should reject a rule imposing a single solution for a matter implicating state sovereignty interests, i.e., the conditions under which a state decides to negotiate its labor contracts with its employees.

In Justice Kagan's dissent in Harris, she noted the majority can personally criticize Abood as relying too heavily on certain cases, but as recently as 2009, in Locke v. Karass, 555 U.S. 207, the Court analyzed the Abood line and stated that the Abood rule is a “general First Amendment principle.” She points out that that the majority opinion attempts to minimize the significance of stare decisis, especially with respect to Abood. Justice Kagan believes that due to stare decisis, Abood will not be overruled in the future.

We are not as confident. The hostility toward and misunderstanding of unions only seems to increase. We recently read one attorney’s perspective about Harris, expressing disagreement with Justice Kagan’s prediction and arguing that when the Supreme Court issued Brown v. Board of Education, it overruled prior precedent. This draws a poor comparison. One cannot meaningfully compare the potential elimination of precedent protecting fair share fees with the court’s decision to overrule a 1896 Supreme Court case allowing states to segregate black and white students in their public schools.

We believe Justice Alito will be able to form a consensus to hear another agency fee matter. It seems the Court will not rest until it has overturned Abood and its predecessors. Whether it is based solely on a challenge to the constitutionality of agency fees, and whether the Court has enough votes to strike down more than four decades of agency fee case law, remains to be seen. Click here to view the amici brief.

In Harris v. Quinn, Carroll Burdick partners Gary Messing, Gregg Adam, and Gonzalo Martinez filed an amici brief on behalf of the following public safety employees’ unions and their members: California Correctional Peace Officers’ Association, CDF Firefighters, Engineers & Architects Association, San Jose Police Officers’ Association, Internal Association of Fire Fighters, Local 1775, Deputy Sheriffs’ Association of Santa Clara County, Fraternal Order of Police, National Association of Government Employees, International Brotherhood of Police Officers, International Brotherhood of Correctional Officers, National Association of Police Organizations, Inc., International Association of Fire Fighters, Corrections Officers and Forensic Security Assistants of the Michigan Corrections Organization, and National Troopers Coalition.

If you have any questions, please contact Jennifer Stoughton at jennifer@majlabor.com.