Amicus Curiae Brief — Ray Allen, Secretary, Wisconsin Department of Workforce Development, et al., Petitioners v. International Association of Machinists District Ten, et al.

No. 18-855

IN THE

Supreme Court of the United States

_________

RAY ALLEN AND JAMES DALEY,

v.

Petitioners,

INTERNATIONAL ASSOCIATION OF MACHINISTS

DISTRICT 10 AND ITS LOCAL LODGE 873,

_________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

_________

BRIEF OF THE NATIONAL RIGHT TO WORK

LEGAL DEFENSE FOUNDATION AS AMICUS

CURIAE SUPPORTING PETITIONERS

_________

AMANDA K. FREEMAN

Counsel of Record

MILTON L. CHAPPELL

FRANK D. GARRISON

RAYMOND J. LAJEUNESSE, JR.

WILLIAM L. MESSENGER

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(703) 321-8510

akf@nrtw.org

Counsel for Amicus

QUESTION PRESENTED

Whether this Court should overrule its summary

affirmance in Sea Pak v. Industrial, Technical, &

Professional Employees, Division of National Maritime Union, 400 U.S. 985 (1971) (mem.), and hold

that federal law does not prohibit States from giving

employees the right to revoke dues-checkoff authorizations.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF REASONS FOR GRANTING THE PETITION .............. 1

REASONS FOR GRANTING THE WRIT .................. 5

I. Sea Pak’s Holding Raises Serious Federalism Concerns Warranting This Court’s Review. ..................................................................... 5

A. This Court consistently has held Congress intended Section 14(b) to preserve

state preeminence in compulsory unionism matters ....................................................... 5

B. States have the authority to regulate or

outlaw dues-checkoff authorizations because they are agreements that compel

financial support of unions ............................... 8

C. Federal statutes are not presumed to

preempt state law ........................................... 10

II. This Court Should Grant the Writ to Address the Nationally Important Question It

Presents: Whether Sea Pak, Which Impacts

Individual Employees’ Freedom, Should Be

Overruled. .......................................................... 12

CONCLUSION .......................................................... 16

(ii)

TABLE OF AUTHORITIES

CASES

Page(s)

Alden v. Maine,

527 U.S. 706 (1999) .............................................. 12

Algoma Plywood & Veneer Co. v. Wis. Emp’t Relations Bd.

336 U.S. 301 (1949) ...................................... passim

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985) .............................................. 11

Anheuser-Bush, Inc. v. Int’l Bhd. of Teamsters,

Local 822,

584 F.2d 41 (4th Cir. 1978) .................................. 15

Bond v. United States,

572 U.S. 844 (2014) ........................................ 10, 11

Bond v. United States,

564 U.S. 211 (2011) ........................................ 12, 13

Cal. Saw & Knife Works,

320 N.L.R.B. 224 (1995)....................................... 15

Commc’ns Workers of Am. v. Beck,

487 U.S. 735 (1988) ................................................ 1

Gregory v. Ashcroft,

501 U.S. 452 (1991) ........................................ 11, 13

Harris v. Quinn,

U.S. , 134 S. Ct. 2618 (2014) ........................... 1

Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,

Council 31,

U.S. , 138 S. Ct. 2448 (2018) ........................... 1

(iii)

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Kidwell v. Transp. Commc’ns Int’l Union,

731 F. Supp. 192 (D. Md. 1990), aff’d in part,

rev’d in part, 946 F.2d 283 (4th Cir. 1991).......... 15

Knox v. SEIU, Local 1000,

567 U.S. 298 (2012) ................................................ 1

Laramie v. Cty. of Santa Clara,

784 F. Supp. 1492 (N.D. Cal. 1992) ..................... 15

Local 58, Int’l Bhd. of Elec. Workers (IBEW) v.

NLRB,

888 F.3d 1313 (D.C. Cir. 2018) ...................... 14, 15

McCahon v. Pa. Turnpike Comm’n,

491 F. Supp. 2d 522 (M.D. Pa. 2007) ..................... 8

Newport News Shipbuilding & Dry Dock Co.,

253 N.L.R.B. 721 (1980), enforced sub nom.

Peninsula Shipbuilders’ Ass’n v. NLRB, 663

F.2d 488 (4th Cir. 1981) ....................................... 15

Newspaper Guild/CWA v. Hearst Corp.,

645 F.3d 527 (2d Cir. 2011) ................................. 14

NLRB v. Atlanta Printing Specialties & Paper

Prods. Union 527,

523 F.2d 783 (5th Cir. 1975) ................................ 15

NLRB v. U.S. Postal Serv.,

833 F.2d 1195 (6th Cir. 1987), decision supplemented, 837 F.2d 476 (6th Cir. 1988) ............. 14

v

TABLE OF AUTHORITIES—Continued

Page(s)

Oil, Chem. & Atomic Workers Int’l Union v. Mobil

Oil Corp.,

426 U.S. 407 (1976) ................................................ 7

Retail Clerks Int’l Ass’n, Local 1625 v.

Schermerhorn,

375 U.S. 96 (1963) .............................................. 6, 7

Retail Clerks Int’l Ass’n, Local 1625 v.

Schermerhorn,

373 U.S. 746 (1963) ............................................ 7, 8

Sea Pak v. Indus., Tech. & Prof’l Emps.,

400 U.S. 985 (1971) ...................................... passim

SeaPak v. Indus., Tech. & Prof’l Emps.,

300 F. Supp. 1197 (S.D. Ga. 1969), aff’d, 423

F.2d 1229 (5th Cir. 1970), aff’d, 400 U.S. 985

(1971) .................................................................... 11

United States v. Bass,

404 U.S. 336 (1971) .............................................. 11

Williams v. NLRB,

105 F.3d 787 (2d Cir. 1996) ................................. 15

Wyeth v. Levine,

555 U.S. 555 (2009) .............................................. 11

CONSTITUTION

U.S. Const. amend XIV ............................................. 10

vi

TABLE OF AUTHORITIES—Continued

Page(s)

STATUTES

29 U.S.C. § 158(a)(3) ....................................... 5, 6, 7, 9

29 U.S.C. § 164(b) .............................................. passim

29 U.S.C. § 186(c)(4) ...................................... 2, 4, 9, 10

WIS. STAT. § 111.04(3)(a)3 ........................................... 3

WIS. STAT. § 111.04(3)(a)4 ........................................... 3

WIS. STAT. § 111.06(1)(i) .............................................. 3

RULES

SUP. CT. R. 37.3(a) ....................................................... 1

SUP. CT. R. 37.6............................................................ 1

OTHER

2015 Wis. Act 1, § 5 ..................................................... 3

Michael W. McConnell, Federalism: Evaluating

the Founders’ Design, 54 U. CHI. L. REV. 1484

(1987) .................................................................... 13

Nat’l Labor Relations Act, ch. 372, § 8(3), 49 Stat.

452 (1935) (codified as amended at 29 U.S.C. §

158(a)(3) (1976)) ..................................................... 5

INTEREST OF AMICUS CURIAE1

The National Right to Work Legal Defense Foundation, Inc. has been the nation’s leading litigation advocate against compulsory unionism since 1968. In

furtherance of this mission, Foundation staff attorneys have represented individual employees in almost all of the compulsory union fee cases that have

come before this Court. E.g., Janus v. Am. Fed’n of

State, Cty., & Mun. Emps., Council 31, 138 S. Ct.

2448 (2018); Harris v. Quinn, 134 S. Ct. 2618 (2014);

Knox v. SEIU, Local 1000, 567 U.S. 298 (2012);

Commc’ns Workers of Am. v. Beck, 487 U.S. 735

(1988).

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

This case involves a fundamental question of constitutional and statutory law: which sovereign in our

federalist system has the power to decide what compelled unionism forms are legal?

Until the 1930s, that was an easy question to answer, as several States exercised their traditional police powers to regulate labor relations—including

compelled unionism—without interference from

Congress. In 1935, however, Congress passed the

National Labor Relations Act (“NLRA”), thereby tak-

1 Pursuant to Supreme

Court Rule 37.3(a), both parties received timely notice of amicus curiae’s intent to file this brief

and consented to its filing.

Pursuant to Supreme Court Rule 37.6, no counsel for any

party authored this brief in whole or in part, and no person or

entity other than the amicus curiae made a monetary contribution to its preparation or submission.

(1)

2

ing a larger role in the labor relations field, including

by regulating compelled unionism and enacting a national policy making so-called “union security” provisions in collective bargaining agreements permissible

under federal law.

These “union security” provisions compelled unionism in two ways. They permitted (1) the “closed

shop,” in which employers and labor organizations

entered into contracts compelling workers to join a

union as an employment condition; and (2) the

“agency shop,” in which employers and labor organizations entered into contracts compelling workers to

pay an “agency fee” as an employment condition, instead of requiring full-fledged membership. But, employers and labor organizations also utilized a third

related “union security” form that Congress did not

address in the NLRA: the dues-checkoff authorization, which is a wage assignment that permits an

employer to deduct a worker’s union dues or fees directly from his or her paycheck and remit them to a

union. See Pet. Br. 4–5.

Congress reversed course in 1947, however, when it

amended the NLRA through the Taft-Hartley Act. In

Taft-Hartley, Congress, among other things, outlawed the closed shop, retained the agency shop, and

added a provision establishing a maximum one-year

irrevocability period for dues-checkoff authorizations.

See 29 U.S.C. § 186(c)(4). Congress notably left the

final decision whether to permit, outlaw, or limit

compelled unionism forms to the States in Section

14(b), 29 U.S.C. § 164(b). This statutory provision

3

provides that “[n]othing” in the Act “shall be construed as authorizing the execution or application of

agreements requiring membership in a labor organization as a condition of employment in any State or

Territory in which such execution or application is

prohibited by State or Territorial law.” Id. This left a

statutory scheme with a federal-state balance: the

federal government would determine what compelled

unionism forms were permitted under federal law,

but the States, under Section 14(b), could prohibit

what federal law allowed.

In 2015, the State of Wisconsin utilized Section

14(b) to pass Wisconsin Act 1 (“Act 1”), which protects workers’ freedom by outlawing or limiting numerous compelled unionism forms. First, Act 1 outlawed the agency shop: “[n]o person may require, as

a condition of obtaining or continuing employment,

an individual to . . . [p]ay any dues, fees . . . or expenses of any kind or amount . . . to a labor organization.” 2015 Wis. Act 1, § 5, codified at WIS. STAT.

§§ 111.04(3)(a)3 & (3)(a)4; Pet. Br. 4. Second, Act 1

limited dues-checkoff authorizations’ procedures and

durations by making it an unfair labor practice for

an employer to “deduct labor organization dues or

assessments from an employee’s earnings” unless

“the employer has been presented with an individual

order therefor, signed by the employee personally,

and terminable by the employee giving to the employer at least 30 days’ written notice of the termination.” WIS. STAT. § 111.06(1)(i); Pet. Br. 5.

4

However, relying on this Court’s summary affirmance in Sea Pak, 400 U.S. 985, the district court

below held Wisconsin’s thirty-day notice duescheckoff law provision unconstitutional because TaftHartley Section 186(c)(4) preempted it. Pet. App. at

67a–82a. The Seventh Circuit agreed. Pet. App. at

3a–66a.

The Court should take this case and overrule Sea

Pak. First, Sea Pak’s Section 186(c)(4) and Section

14(b)’s intersection analysis raises serious federalism

concerns. When Congress passed Section 14(b), it

clearly intended the States to continue to have the

final say in what compelled unionism forms—

including devices such as dues-checkoff authorizations—are legal. Moreover, when reviewing the

NLRA and Taft-Hartley statutory scheme here, the

district court in Sea Pak failed to apply the presumption that a federal statute should not displace a

State’s power absent a clear statement from Congress. Second, by ignoring the state preeminence

that Congress recognized in Taft-Hartley Section

14(b), Sea Pak has had serious consequences nationwide for employees’ individual liberty.

5

REASONS FOR GRANTING THE WRIT

I. Sea Pak’s Holding Raises Serious Federalism Concerns Warranting This Court’s Review.

A. This Court consistently has held Congress intended Section 14(b) to preserve

state preeminence in compulsory unionism matters.

Starting in 1949 with Algoma Plywood & Veneer

Co. v. Wisconsin Employment Relations Board, this

Court has recognized that Congress’ intent through

Section 14(b) was to leave the States free to continue

to regulate “union security” provisions. 336 U.S. 301

(1949).

As here, Algoma Plywood involved a challenge to a

Wisconsin statute that outlawed “maintenance-ofmembership” agreements unless certain preconditions were met. Id. at 303–04.2 The challengers argued the Wisconsin statute was preempted by the

precursor to NLRA Section 8(a)(3), 29 U.S.C.

§ 158(a)(3), Section 8(3), Nat’l Labor Relations Act,

ch. 372, § 8(3), 49 Stat. 452 (1935) (codified as

amended at 29 U.S.C. § 158(a)(3) (1976)), which had

authorized compulsory unionism agreements. Algoma Plywood, 336 U.S. at 304.

2 The maintenance-of-membership agreement in Algoma Ply-

wood involved a closed shop provision that was agreed to prior

to Taft-Hartley’s passage. 336 U.S. at 304–05.

6

The Court first recognized that, when “the National

Labor Relations Act was adopted, the courts of many

States, at least under some circumstances, denied

validity to union-security agreements.” Id. at 306.

The Court then held that the Wisconsin law was not

preempted by Section 8(3)’s authorization of the

closed shop because Congress, in enacting that section, had “not manifested an unambiguous purpose

that [state power to regulate compulsory unionism]

should be supplanted.” Id. at 312. Rather, Section

“8(3) merely disclaims a national policy hostile to the

closed shop or other forms of union security agreement.” Id. at 307.

The Court then turned to the Taft-Hartley Act

amendments and held those provisions “make it even

clearer than the National Labor Relations Act that

the States are left free to pursue their own more restrictive policies in the matter of union-security

agreements.” Id. at 313–14. Indeed, the Court said,

Section “14(b) was included to forestall the inference

that federal policy was to be exclusive.” Id. at 314.

This Court consistently has reaffirmed the Algoma

Plywood holdings that Sections 8(a)(3) and 14(b)

leave the States free to regulate fully compulsory unionism provisions. In Retail Clerks International

Ass’n, Local 1625 v. Schermerhorn, the Court noted

that Senator Taft, in the Senate debates on Taft

Hartley, “stated that [Section] 14(b) was to continue

the policy of the Wagner Act and avoid federal interference with state laws in this field.” 375 U.S. 96,

102 (1963). “In light of the wording of [Section 14(b)

7

and this legislative history,” the Court concluded

“that Congress in 1947 did not deprive the States of

any and all power to enforce their laws restricting

the execution and enforcement of union-security

agreements. . . . [I]t is plain that Congress left the

States free to legislate in that field.” Id.

Other cases make the same point. See Oil, Chem. &

Atomic Workers Int’l Union v. Mobil Oil Corp., 426

U.S. 407, 417 (1976) (“[Section] 14(b) simply mirrors

that part of [Section] 8(a)(3) which focuses on Posthiring conditions of employment. As its language reflects, [Section] 14(b) was designed to make clear

that [Section] 8(a)(3) left the States free to pursue

their own more restrictive policies in the matter of

union-security agreements.” (citation and quotation

marks omitted)); Retail Clerks Int’l Ass’n, Local 1625

v. Schermerhorn, 373 U.S. 746, 751 (1963)

(Schermerhorn I) (holding Section “14(b) was designed to prevent other sections of the Act from completely extinguishing state power over certain unionsecurity arrangements”).

In short, with Section 14(b), Congress preserved

the pre-existing federal-state balance whereby States

are free to determine which compulsory unionism

agreements are legal and which are not.

8

B. States have the authority to regulate or

outlaw dues-checkoff authorizations because they are agreements that compel financial support of unions.

1. Here, the Employer and Union have provided in

a collective bargaining agreement that employees

who agreed to union dues deductions in the past

must continue to pay dues for a certain period of

time, namely one year. Pet. App. at 92a–99a. That

agreement is indistinguishable from “maintenanceof-membership agreements”—the agreement type at

issue in Algoma Plywood, 336 U.S. at 310–11—which

require employees who agreed to union membership

in the past to continue to pay union dues for a certain amount of time, usually the contract’s duration.

See McCahon v. Pa. Turnpike Comm’n, 491 F. Supp.

2d 522, 525–26 (M.D. Pa. 2007).

A maintenance-of-membership requirement is, in

turn, indistinguishable from an agency shop requirement with a limited duration. Just as States

can prohibit agency shop agreements under Section

14(b), Schermerhorn I, 373 U.S. at 750–54, so too can

they prohibit maintenance-of-membership agreements. Accordingly, Section 14(b) permits States to

prohibit agreements mandating that union dues deductions must continue for certain time periods.

An example illustrates the point. Consider the following three employer-union agreements:

 Agency Shop Agreement: Employees are required to pay union dues or fees.

9

 Maintenance-of-Membership Agreement: Employees who agreed to be union members in the

past are required to pay union dues for the contract’s duration.

 Checkoff Restriction Agreement: Employees who

agreed to be union members in the past are required to pay union dues for a one-year period.

As this comparison makes plain, maintenance-ofmembership and checkoff restriction agreements are

the same thing but with different durations. Each is

a type of agency shop provision that requires employees to continue to pay union dues. Each is a

compulsory unionism form that States can ban under

Section 14(b).

2. Section 186(c)(4) does not preempt Section 14(b).

As noted, supra p. 2, Section 186(c)(4) merely sets a

maximum one-year irrevocability period for duescheckoff authorizations—a national ceiling. See 29

U.S.C. § 186(c)(4).

This is identical to the situation this Court analyzed in Algoma Plywood. There, the employer and

union had argued “that a State cannot forbid what §

8(3) affirmatively permits.” 336 U.S. at 307. However, the Court held Section 8(3) only established what

compulsory unionism agreement forms were allowed

under federal law and did not preempt State laws

prohibiting or regulating those agreements. Id. at

307–12. So too with Section 186(c)(4). That provision

merely sets a national ceiling for the permissible duration of that type of forced union financial support

10

to prevent an employer’s transfer of money to a union from being considered a bribe. It does not speak

to the States’ authority to regulate that compulsory

unionism form.

Therefore, as with Section 8(a)(3), the States have

the pre-existing power preserved by Section 14(b) to

lower the ceiling Section 186(c)(4) sets for the

checkoff agreements duration.

C. Federal statutes are not presumed to

preempt state law.

As explained, this Court’s precedent establishes

that Congress intended to preserve the federal-state

balance in compulsory unionism matters through enactment of Section 14(b). Nevertheless, to the extent

there is any ambiguity, this Court should grant the

Writ and apply the fundamental principle that federal statutes are not presumed to preempt state

laws.

It is this Court’s fundamental principle of statutory

construction that “[p]art of a fair reading of statutory

text is recognizing that Congress legislates against

the backdrop of certain unexpressed presumptions.”

Bond v. United States, 572 U.S. 844, 857 (2014)

(Bond II) (citation and internal quotation marks

omitted). This includes the “long settled” presumption that “federal statutes do not abrogate state sovereign immunity, . . . impose obligations on the

States pursuant to section 5 of the Fourteenth

Amendment, . . . or preempt state law[.]” Id. at 858

(citations omitted) (emphasis added).

11

In “all pre-emption cases, and particularly in those

in which Congress has legislated . . . in a field which

the States have traditionally occupied, . . . we start

with the assumption that the historic police powers

of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565

(2009) (citations and quotation marks omitted).

It is a “well-established principle that ‘it is incumbent upon federal courts to be certain of Congress’

intent before finding that the federal law overrides’

the ‘usual constitutional balance of federal and state

powers.’” Bond II, 572 U.S. at 858 (quoting Gregory

v. Ashcroft, 501 U.S. 452, 460 (1991)). And, in finding

this congressional intent when “legislation affect[s]

the federal balance, the requirement of [a] clear

statement assures that the legislature has in fact

faced, and intended to bring into issue, the critical

matters involved in the judicial decision.” Id. (quoting United States v. Bass, 404 U.S. 336, 349 (1971)).

This well-established principle is as applicable to

labor law as to any other area of the law. See AllisChalmers Corp. v. Lueck, 471 U.S. 202, 208–09

(1985) (“[T]he question whether a certain state [labor] action is pre-empted by federal [labor] law is”

usually decided under ordinary preemption principles); Pet. Br. 23. Indeed, Algoma Plywood recognized this principle: “in cases of concurrent power

over commerce State law remains effective so long as

Congress has not manifested an unambiguous purpose that it should be supplanted.” 336 U.S. at 312.

12

Yet, nowhere in its opinion did the district court in

Sea Pak address these presumptions or federalism

principles. SeaPak v. Indus., Tech. & Prof’l Emps.,

300 F. Supp. 1197 (S.D. Ga. 1969), aff’d, 423 F.2d

1229 (5th Cir. 1970), aff’d, 400 U.S. 985 (1971). It is

therefore important for the Court to take this case

and reaffirm that federal laws are not presumed to

preempt state laws.

II. This Court Should Grant the Writ to Address the Nationally Important Question It

Presents: Whether Sea Pak, Which Impacts

Individual Employees’ Freedom, Should Be

Overruled.

Sea Pak’s faulty decision ignoring the federal-state

balance Congress devised in the NLRA and TaftHartley provides a prime example of why federalism

is so important to individual liberty.

As this Court has noted, “freedom is enhanced by

the creation of two governments, not one.” Alden v.

Maine, 527 U.S. 706, 758 (1999). Since this country’s

founding, it has been a fundamental precept of our

governmental structure that the “allocation of powers between the National Government and the States

enhances freedom, first by protecting the integrity of

the governments themselves, and second by protecting the people, from whom all governmental powers

are derived.” Bond v. United States, 564 U.S. 211,

221 (2011) (Bond I). Moreover, “[t]he allocation of

powers in our federal system preserves the integrity,

dignity, and residual sovereignty of the States. The

13

federal balance is, in part, an end in itself, to ensure

that States function as political entities in their own

right.” Id.

These values serve to protect individual liberty, not

just a state’s autonomy. “Federalism is more than an

exercise in setting the boundary between different

institutions of government for their own integrity . . .

State sovereignty is not just an end in itself: Rather,

federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Id. (citations and quotation marks omitted).

These principles also allow for state experimentation to devise policies that are best for the people of a

State. In this way, “[t]he federal structure allows local policies ‘more sensitive to the diverse needs of a

heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement

in democratic processes,’ and makes government

‘more responsive by putting the States in competition

for a mobile citizenry.’” Id. (quoting Gregory, 501

U.S. at 458); see also, Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U. CHI. L.

REV. 1484, 1493 (1987) (noting “[t]he first, and most

axiomatic, advantage of decentralized government is

that local laws can be adapted to local conditions and

local tastes”).

Sea Pak’s total disregard for these principles—

enshrined in the NLRA’s and Taft-Hartley’s structure—has caused great injury to employees. If left to

their own whims, unions and unionized employers

14

have shown they will utilize any type of restriction or

tactic they can to delay the applicability of a law like

Wisconsin’s, and to vitiate employees’ ability to exercise their rights under that law whenever a union

and employer see fit. See, e.g., Local 58, Int’l Bhd. of

Elec. Workers v. NLRB, 888 F.3d 1313, 1315,

1318–19 (D.C. Cir. 2018) (striking down a union’s requirement, established to circumvent Michigan’s

newly enacted Right to Work law, that employees

must show up at the union hall with photo identification and a written resignation and checkoff authorization revocation); see also infra. pp. 14–15 (examples below).

These all-too-common restrictions and tactics make

it exceedingly difficult for employees to cease supporting financially an often unwanted exclusive bargaining representative where compulsory fees cannot

be required under state law. Such restrictions and

tactics also frustrate a State’s ability to enforce its

law. As Judge Manion succinctly stated in dissent,

“neither [management nor labor] adequately represents the freedom of employees to revoke their

agreements.” Pet. App. at 56a.

For years, unions and employers have restricted

employees’ ability to stop dues deductions to short

annual window periods that often differ for each employee. See, e.g., NLRB v. U.S. Postal Serv., 833 F.2d

1195, 1197 (6th Cir. 1987), decision supplemented,

837 F.2d 476 (6th Cir. 1988) (10 day revocation window); Newspaper Guild/CWA v. Hearst Corp., 645

F.3d 527, 528–29 (2d Cir. 2011) (15 day revocation

15

window); Williams v. NLRB, 105 F.3d 787, 789 (2d

Cir. 1996) (10 day revocation window); AnheuserBush, Inc. v. Int’l Bhd. of Teamsters, Local 822, 584

F.2d 41, 42 (4th Cir. 1978) (allowing employees to

stop union dues deductions only if they “give written

notice to the Company and the Union at least 60, and

not more than 75 days before any periodic renewal

date of this authorization and assignment of my desire to revoke the same”); NLRB v. Atlanta Printing

Specialties & Paper Prods. Union 527, 523 F.2d 783,

784 (5th Cir. 1975) (two 15 day revocation windows).

Unions also have required employees to appear in

person at a union hall to revoke their checkoff authorizations, Newport News Shipbuilding & Dry

Dock Co., 253 N.L.R.B. 721, 731–32 (1980), enforced

sub nom. Peninsula Shipbuilders’ Ass’n v. NLRB, 663

F.2d 488 (4th Cir. 1981); to appear in person at a union hall with a photo identification and written revocation, Local 58, 888 F.3d at 1318–19; or to notify unions of their dues collection wishes only by certified

mail, see Kidwell v. Transportation Communications

International Union, 731 F. Supp. 192, 205 (D. Md.

1990), aff’d in part, rev’d in part, 946 F.2d 283 (4th

Cir. 1991) (requiring certified mail for objections to

an agency fee); Laramie v. County of Santa Clara,

784 F. Supp. 1492, 1499–1500 (N.D. Cal. 1992) (requiring certified mail for objections to the union’s reduced agency fee calculation); see also California

Saw & Knife Works, 320 N.L.R.B. 224, 236–37 (1995)

(requiring certified mail for employees to communicate objections).

16

It is thus imperative that States like Wisconsin be

permitted to exercise their sovereign authority to

protect employees’ freedom to choose whether to subsidize a union and its speech. Otherwise, employee

rights will be subject to the self-interested machinations of unions and unionized employers, and state

law protecting those rights will be “practically meaningless if so easily avoided.” Algoma Plywood, 336

U.S. at 315.

CONCLUSION

For the foregoing reasons, and those stated by the

Petitioners, the Court should grant the Petition.

Respectfully submitted,

AMANDA K. FREEMAN

Counsel of Record

MILTON L. CHAPPELL

FRANK D. GARRISON

RAYMOND J. LAJEUNESSE, JR.

WILLIAM L. MESSENGER

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Road

Suite 600

Springfield, VA 22160

(703) 321-8510

akf@nrtw.org

February 1, 2019