Unions hail Supreme Court deadlock on Friedrichs but more suits loom

Longtime labor leader Henry Nicholas breathed a sigh of relief Tuesday, when the U.S. Supreme Court deadlocked, thereby retaining public unions' abilities to collect mandatory fees in many states, including Pennsylvania and New Jersey.

It was a sigh, but not a deep one.

Waiting to exhale might be a better description - for both unions and their management foes, as they shift their focus from the legal landscape to the political.

"The next president of the U.S. will appoint four judges for life," said Nicholas, president of the National Union of Hospital and Healthcare Employees District 1199C. "If the White House ends up in the wrong hands, it will be a victory short-lived."

Court observers had expected the justices to rule 5-4 in favor of abolishing so-called fair-share fees to cover the cost of collective bargaining and representation, with U.S. Supreme Court Antonin Scalia among the five.

When Scalia died in February, the court lost its conservative tipping point, opening the way for the 4-4 ruling in the case of a California public school teacher who had objected to paying union dues when she wasn't a member of the union.

Teacher Rebecca Friedrichs and some fellow educators said they'd petition the court to hear the case again when there are nine justices seated.

Meanwhile, the Right to Work Legal Defense Foundation, a Virginia-based national group that provides free legal help to employees who feel oppressed by unions, is moving five related cases through appellate courts.

"Are forced dues constitutional?" asked Patrick Semmens, a spokesman. "Can a government employee be required to pay dues and fees to a union as a condition for working for a state government? We think they shouldn't have to pay."

The Friedrichs case concerns what is known as "fair share" or "agency" fees, intended to cover collective bargaining and grievance expenses. These "fair share" fees are paid by employees who are represented by unions but aren't dues-paying members. The fees help cover the cost of collective bargaining, but cannot be used for political purposes, according to the 1977 Supreme Court decision, Abood v. Detroit Board of Education, which first authorized the payments.

Union members' dues, by contrast, do cover political activities and lobbying.

In Southeastern Pennsylvania, state employee union members, including corrections officers, municipal clerical workers, crossing guards and custodians, pay AFSCME union dues equivalent to 1.5 percent of their base salary.

Non-member public employees pay 1 percent, said Tom Tosti, the director of AFSCME District Council 88, which represents 14,000 public employees.

"The whole thing behind Friedrichs was to weaken organized labor, especially in the public sector, where more workers belong to unions," he said.

"The way I look at it is we are the last line of defense," he said. These cases are "a way to take away our voices - standing up for the middle class."

Ironically, he said, the employees who pay agency fees, not union dues, often tend to be the ones who use the union's grievance assistance the most.

"It's like going to a lawyer and saying, 'I don't want to pay,' " he said.

The issue of dues is involved in two cases - one state and one federal - in Pennsylvania, where public school teachers who object to unions on religious grounds are allowed to pay their agency fees to a charity mutually agreed on by the union and the employee.

One possible charity is a nonprofit that advocates for right-to-work, anti-union stances. So, not surprisingly, the Pennsylvania State Education Association doesn't agree.

"Shouldn't they be able to spend their money where they want it to go?" asked King of Prussia lawyer Karin Sweigart, assistant general counsel at the Fairness Center, a legal nonprofit representing individuals who say they have been unjustly treated by public unions.

The Friedrichs decision "preserves an important revenue stream for public-sector unions, and deals a blow to those who had hoped to lessen labor's influence in public employment settings and beyond," said management lawyer Rich Grimaldi, a partner at Fisher & Phillips LLP in Radnor.

In Philadelphia, when Nicholas saw the Friedrichs case moving through the court system, he quickly set a strategy in motion at Temple University Hospital and Temple University, where District 1199C represents service and clerical employees.

Starting in November, "I had five people working round the clock on this," he said, trying to convince agency employees similar to Rebecca Friedrichs - covered by a contract, but not dues-paying members - to join the union.

If the case had gone the other way, Nicholas would have lost nearly half a million dollars in annual dues, he said.

"We flipped 327 [agency employees] and we have 17 left," Nicholas said. "We are satisfied that we will have 100 percent soon."

jvonbergen@phillynews.com

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@JaneVonBergen

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