On December 13, 2016, the Littler law firm sponsored a program entitled “The 2016 Presidential Election: What a Trump Administration Might Mean for Employers.” The program included a brief discussion of four “important labor and employment cases pending before the [U.S. Supreme] Court.” One of those cases is Serna v. Transport Workers Union of America, 654 Fed. Appx. 665 (5th Cir. July 11, 2016) (per curiam), petition for cert. docketed, No. 16-484 (U.S. Oct. 12, 2016), a case in which National Right to Work Legal Defense Foundation attorneys represent the plaintiff airline employees who are compelled to pay union fees as a condition of their employment even though they have chosen not to join the union. The issues presented in Serna are:
(1) “[w]hether [Railway Employes’ Department v.] Hanson[, 351 U.S. 225 (1956)], and implicitly Abood v. Detroit Board of Education, 431 U.S. 209 (1977), should be overruled insofar as they uphold the constitutionality of compulsory union fees”; and
(2) “[w]hether requiring that employees affirmatively object to subsidizing constitutionally nonchargeable union speech, rather than requiring affirmative consent, violates the First Amendment.”
Serna gives the Court an opportunity to revisit the issues it ducked 4-4 in Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (per curiam), reh’g denied, 136 S. Ct. 2545 (2016), when Justice Antonin Scalia unexpectedly died after the Court had heard oral argument in the case. The Justices will consider the Serna petition at their conference on January 6, 2017.