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Union victory for Agency Fee as Supreme Court rejects right wing arguments in 'Friedrich' case... Decision is a defeat for the so-called the 'Center for Individual Rights'....

Rebecca Friedrichs made the rounds of the media proclaiming that her union busting lawsuit was really an exercise in freedom of speech. But she has never volunteered to negotiate her own pay and benefits, although she seems to want to make every school and school district worker an "at will" employee. In a very important decision for public worker unions -- and for the Chicago Teachers Union on the eve of the April 1, 2016 one-day strike -- the United States Supreme Court on March 29 announced its rejection of the "Friedrich" case. That case, filed with right wing funding on behalf of a handful of teachers from California, was trying to get the Court to declare Agency Fees unconstitutional. As a result of the decision, Agency Fees still continue for public worker unions, including the Chicago Teachers Union.

The death of the reactionary Justice Antonin Scalia was decisive. "When the case was argued in January," The New York Times reports, "the court’s conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violates the First Amendment. Justice Scalia’s questions were consistently hostile to the unions." Scalia had been part of the Supreme Court conservative majority which, among other decisions, had affirmed that fact that corporations were "persons" and therefore entitled to protection, was the "Citizens United" case. Its impact on the current election has been to provide a cover for the wealthiest individuals and corporations to pour billions of dollars into the current electoral fights. Scalia was expected to add another reactionary majority decision to the Court's work.

One of the significant aspects of the Friedrichs case for Chicago teachers and other school workers on the eve of the April 1, 2016 Chicago Teachers Union one-day strike is the fact that SCABa have almost never volunteered to repay the money they earn by SCABbing, just as Rebecca Friedrichs and her co-plaintiffs in the union busting case have never demanded the "right" to negotiate their own contracts with their BOSS, or to voluntarily go into an open-ended teaching relationship where they can be fired at any time. They are working to promote "at will" working relationships for all school workers (and other public workers) while proclaiming that their only motive is pure -- "freedom of speech." The same kind that has resulted from the Supreme Court's decision in Citizens United.

The most comprehensive news story about the case was published in The New York Times...

Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4, by Adam Liptak, March 29, 2016, The New York Times

WASHINGTON — The Supreme Court handed organized labor a major victory on Tuesday, deadlocking 4 to 4 in a case that had threatened to cripple the ability of public-sector unions to collect fees from workers who chose not to join and did not want to pay for the unions’ collective bargaining activities.

It was the starkest illustration yet of how the sudden death of Justice Antonin Scalia last month has blocked the power of the court’s four remaining conservatives to move the law to the right.

Whether the pre-Easter death of the reactionary Supreme Court Justice Antonin Scalia was a "sign" is open to debate. What is clear is that Scalia's versions of freedom conflict with the rights of millions or working people, and in many ways are also in conflict with the way in which his Jesuit teachers have evolved since Scalia finished his education, decades before a Jesuit became a human rights (within certain limits) Pope...A ruling allowing workers to refuse to pay the fees would have been the culmination of a decades-long campaign by a group of prominent conservative foundations aimed at weakening unions that represent teachers and other public employees. Tuesday’s deadlock denied them that victory, but it set no precedent and left the door open for further challenges once the Supreme Court is back at full strength.

When the case was argued in January, the court’s conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violates the First Amendment. Justice Scalia’s questions were consistently hostile to the unions.

His death changed the balance of power in this case, and most likely in many others. The clout of the court’s four-member liberal wing has increased significantly. Its members — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — can create deadlocks, as they did Tuesday, and they can sometimes attract the vote of Justice Anthony M. Kennedy for a liberal result.

Should Senate Republicans relent and confirm Judge Merrick B. Garland as Justice Scalia’s replacement, the power of the court’s liberals might only grow.

Union officials said they were elated by Tuesday’s decision, but they remain wary of future efforts to diminish their effectiveness.

“We know the wealthy extremists who pushed this case want to limit the ability for workers to have a voice, curb voting rights and restrict opportunities for women and immigrants,” said Mary Kay Henry, the president of the Service Employees International Union.

The case was brought by the Center for Individual Rights, a libertarian group that pursued an unusual litigation strategy. Responding to signals from the Supreme Court’s more conservative justices, the group asked the lower courts to rule against its clients, 10 teachers and a Christian education group, so they could file an appeal in the Supreme Court as soon as possible.

Terence J. Pell, the group’s president, said he was disappointed with Tuesday’s tie vote.

“With the death of Justice Scalia, this outcome was not unexpected,” he said. “We believe this case is too significant to let a split decision stand.”

“Either compulsory dues are an acceptable exception to the First Amendment or they are not,” Mr. Pell said. “A full court needs to decide this question, and we expect this case will be reheard when a new justice is confirmed.”

Under California law, public employees who choose not to join unions must pay a “fair share service fee,” also known as an “agency fee,” typically equivalent to the dues members pay. The fees, the law says, are meant to pay for some of the costs of collective bargaining, including “the cost of lobbying activities.” More than 20 states have similar laws.

Government workers who are not members of unions have long been able to obtain refunds for the political activities of unions, like campaign spending. The case the court ruled on Tuesday, Friedrichs v. California Teachers Association, No. 14-915, asked whether such workers must continue to pay for any union activities, including negotiating for better wages and benefits. A majority of the justices had seemed inclined to say no.

Relying on a 1977 Supreme Court precedent, the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld the requirement that the objecting teachers pay fees. Tuesday’s announcement, saying only that “the judgment is affirmed by an equally divided court,” upheld that ruling and set no new precedent.

The unions defending the compulsory fees said the teachers’ First Amendment arguments were a ruse. Collective bargaining is different from spending on behalf of a candidate, the unions said. They said the plaintiffs were seeking to reap the benefits of such bargaining without paying their fair share of the cost.

Limiting the power of public unions has long been a goal of conservative groups, and they seemed very close to victory when the case was argued in January.

In 2014, the court stopped just short of overruling the foundational 1977 decision and declaring that government workers who choose not to join unions may not be forced to pay fees in lieu of dues. In the 1977 decision, Abood v. Detroit Board of Education, the Supreme Court made a distinction between two kinds of compelled payments.

Forcing nonmembers to pay for a union’s political activities violates the First Amendment, the court said. But it is constitutional, the court added, to require nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”

Tuesday’s decision was the second deadlocked case since Justice Scalia died, and there will almost certainly be more by the end of the term in June. But there is no reason to think that ties will dominate the docket.

In recent years, the court has split 5 to 4 about a quarter of the time. In the term that ended last June, there were 19 such cases, and Justice Scalia was in the majority in just six of them.

“On eight-person courts the justices reach far fewer 4-4 decisions than we would expect,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “They seem to work hard to minimize them because they’re so inefficient. They can hold over cases, cast strategic votes to avoid a decision down the road that may be even worse ideologically, write narrowly and dump cases on procedural grounds.”

After Tuesday’s deadlock, some critics of public unions said they would turn to other forums.

“With a divided court, thousands of public servants around the nation must still financially assist a government union that they disagree with,” said Trey Kovacs, an analyst with the Competitive Enterprise Institute, a libertarian group. “Now it is up to state legislatures to provide public employees with the freedom to choose whether or not to pay for union representation.”

Union officials, too, were looking ahead. “The Supreme Court today rejected a political ploy by the wealthy corporate special interests backing this case,” said Eric C. Heins, the president of the California Teachers Association. “Now it’s time for senators to do their job and appoint a successor justice to the highest court in our land.”

CAPTIONS AND NOTES: A U.S. Supreme Court ruling allowing workers to refuse to pay the fees would have been the culmination of a decades-long campaign by a group of prominent conservative foundations aimed at weakening unions that represent teachers and other public employees. Tuesday’s deadlock denied them that victory, but it set no precedent and left the door open for further challenges once the Supreme Court is back at full strength.

PHOTO From New York Times... Protestors gathered in support of public worker unions at the steps of the U.S. Supreme Court during oral arguments for the anti-union Friedrichs v. California Teachers Association case on Jan. 11. , Mike Lee, Public Employee Press,

ADDITIONAL COMMENTS...

Earthquake Averted: Public Unions Dodge Bullet With Supreme Court Tie

Deirdre Fulton

March 29, 2016

Common Dreams

Deadlocked decision "is a rebuke against this well-funded attack on workers' voice and ability to join together."

In front of the Supreme Court on January 11, when nine justices heard oral arguments in Friedrichs v. California Teachers Association., American Association of University Professors/flickr,

The U.S. Supreme Court fight over public sector unions—which had the potential to deal a serious blow to organized labor nationwide—"sputtered to an end" on Tuesday in a 4-4 tie that leaves intact a favorable lower court ruling.

The plaintiffs in Friedrichs v. California Teachers Association—backed by right-wing, anti-union groups like the Center for Individual Rights—sought to overturn a 1977 precedent that says non-union members can be required to make payments to cover the cost of collective bargaining in lieu of dues to a union.

Such a reversal, The Nation warned in January, would "trigger an earthquake in American labor relations."

As Noah Feldman wrote Tuesday for Bloomberg View, "the death of Justice Antonin Scalia was a game-changer, taking away the fifth vote that would've been necessary to repudiate the precedent. Today the court issued a one-sentence opinion that proved both that there were briefly five votes to overturn the precedent, and that Scalia's death has saved unions from constitutional disaster. The court said simply that it was divided 4-4, and that the lower court's opinion based on the precedent would therefore be upheld."

That opinion, from the U.S. Court of Appeals for the 9th Circuit, allows the California Teachers Association to keep collecting so-called "fair share service fees," but it does not have national implications.

As USA Today explains, "The 9th Circuit standard applies only to states within its jurisdiction, including Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington as well as California. And the Supreme Court could agree to hear the case again, or accept a similar case for argument, when it gets back to full strength."

In the eyes of many observers, unions merely dodged a bullet on Tuesday.

Lyle Denniston wrote at SCOTUSblog:

The Court had heard the Friedrichs case on January 11 and, from all appearances then, it seemed to be on its way toward a five-to-four decision to declare that it would be unconstitutional for unions representing government employees to charge fees to workers they represent but who are not among its members, even when the fees cover the costs of normal union bargaining over working conditions, not lobbying or outright political advocacy.

But the death of Justice Antonin Scalia last month left the Court to either find a way still to decide the case, or to end it with an even split. If it had actually tried since Scalia’s death to find a way around a split, that effort clearly came up short. The result set no precedent, and thus left the constitutional issue dangling.

Still, a slew of national public unions celebrated Tuesday's outcome as a victory, declaring in a press statement that the result in Friedrichs "is meaningful for millions of families across the country, as it is a rebuke against this well-funded attack on workers' voice and ability to join together."

"From the beginning, this case was never about what’s good for our students," said Lily Eskelsen García, president of the National Education Association, "it was a thinly veiled attempt to weaken the rights of public employees, like teachers and other educators."

She continued: "The corporate interests behind this case know that if our union is weakened, it will be harder for us to stand together to negotiate good wages and benefits and to continue fighting for the things our students need. We must join together against these attacks because this country can't grow stronger until we defeat those who want to hold down working people."

For Mary Kay Henry, president of the SEIU, the case—and the ruling—point to the importance of political participation.

"We know the wealthy extremists who pushed this case want to limit the ability for workers to have a voice, curb voting rights, and restrict opportunities for women and immigrants," she said, "and we know the way to stop them is by taking our fight to the polls in November."

Indeed, said Economic Policy institute vice president Ross Eisenbrey on Tuesday, "Republicans in the Senate have made it clear that they will refuse to confirm Judge Garland. In that case, the next president’s Supreme Court appointee will probably cast the deciding vote on this issue when the next case comes before the court. That vote will determine the future of effective unions, democratic decision making in the workplace, and the preservation of good, middle-class jobs in public employment."



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