New York’s Taylor Law requires public employers to engage in collective bargaining with unions that represent employees. It also makes it mandatory that individual employees who benefit from collective bargaining either pay membership dues or a nonmember service charge – called an agency fee – to the union which represents them. However, there is a possibility that the U.S. Supreme Court may declare the compulsory collection of “agency fees” to be unconstitutional. Such a ruling would dramatically change labor relations in New York and the nation.

How Justice Scalia’s death derailed a legal freight train

During its 2015-16 term, the U.S. Supreme Court was scheduled to issue a highly-anticipated decision that dealt with agency fee in Friedrichs v. California Teachers Association. The Friedrichs plaintiffs were public school teachers who challenged the constitutionality of agency fee required by California’s equivalent of the Taylor Law.

But after Justice Antonin Scalia died in his sleep on Feb. 13, 2016, the remaining eight justices were evenly split on Friedrichs. The deadlocked court issued a per curiam order that maintained the status quo, without analysis or explanation. The order left intact a ruling by the Ninth Circuit Court of Appeals that upheld the constitutionality of agency fee.




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