In Friedrichs v. California Teachers Association the Supreme Court has agreed to decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.

 If the Court doesn’t overrule Abood v. Detroit Board of Education (1977) it may instead rule that public employees may be allowed to opt-in rather than required to opt-out of paying “nonchargeable” union expenditures.

In Abood the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective-bargaining, contract administration, and grievance-adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions. So no free-riders are allowed.

In Harris v. Quinn (2014) the Supreme Court refused to extend Abood toMedicaid home health care providers because they aren’t “full-fledged” public employees. Justice Alito’s majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas, was very critical of Abood discussing at length its “questionable analysis.” Justice Kagan’s dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, included a lengthy and vigorous defense of Abood.

It seemed to be only a matter of time until the Court was asked to overturn Abood. 

Public sectors employees who don’t join the union may opt-out of paying “nonchargeable” union expenditures—including expenditures for political or ideological purposes. The Court agreed to decide, assuming it doesn’t overrule Abood, whether requiring non-members to opt-out of nonchargeable expenditures—rather than opt-in—violates the First Amendment. If nonmembers may affirmatively opt-in rather than be required to take action to opt-out, presumably fewer will pay nonchargeable expenditures.

Agency fee and opt-out are foundational principles for public sector collective bargaining in the United States. Overturning either of them would represent a major change in the law and substantially weaken public sector unions.