Supreme Court Allows Agency Fees

April, 2016






A one sentence decision from the U.S. Supreme Court this week provided a critical victory to public sector unions.  Friedrichs v. California Teachers Association.   

     All California teachers are represented by the state teachers’ union, an affiliate of the National Education Association.  Those teachers who chose not to belong to the union as a member, and thus do not have full voting privileges, are nevertheless required to pay 98-99% of the dues amount as an “agency-fee” payers.  The union, however, must represent all teachers, regardless of whether they are full members or agency-fee payers.  Rebecca Friedrich objected to paying such amount as a non-member, claiming that violates the First Amendment.

Because of the vacancy of a justice due to the death of Justice Scalia, the decision resulted in a 4-4 vote, affirming the 9th Circuit Court of Appeals decision.

Employers Can’t Require Confidentiality With Internal Investigations Without Violating The National Labor Relations Act.

A 2012 National Labor Relations Board, (“NLRB”), decision in a non-union setting held that unless an employer is concerned about protecting witnesses, evidence, employee testimony or preventing a cover-up, an employer runs afoul of the law by requiring confidentiality in its internal investigations.  Banner Health Systems, d/b/a Banner Estrella Medical Center and James Navarro, Case 28–CA–023438, NLRB, July 30, 2012.

The NLRB held that the employer’s confidentiality policy of informing employees not to discuss its human resource investigation with others until the investigation was completed amounted to a violation of Section 7 rights under the National Labor Relations Act, which is applicable both to union and non-union work environments and covers non-supervisory employees.  Under Section 7, employees are free to communicate about their wages, hours of work, and other terms and conditions of employment without fear of coercion or threats from their employer.

This case mirrors the same protection under federal and state anti-discrimination laws.  The Equal Employment Opportunities Commission, (“EEOC”), has offered guidance in its regulations that an employer violates Title VII, i.e. the opposition clause of Title VII, whenever it tells an employee not to discuss her complaint with others.




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