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

Supreme Court briefFeb 4, 2019

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No. 18-855

In the

Supreme Court of the United States

RAY ALLEN AND JAMES DALEY,

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 AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF

PETITIONERS

ERIN E. WILCOX

Counsel of Record

DEBORAH J. LA FETRA

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

ewilcox@pacificlegal.org

dlafetra@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

QUESTION PRESENTED

Whether this Court should overrule its summary

affirmance in Sea Pak v. Industrial, Technical, and

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 withdraw dues-checkoff

authorizations?

TABLE OF CONTENTS

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

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

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

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION................... 2

I. THIS COURT SHOULD RECONSIDER

SEA PAK IN LIGHT OF CHANGES IN FIRST

AMENDMENT EFFECTS ON LABOR LAW ...... 2

II. STARE DECISIS IS NO BAR TO

RECONSIDERING SEA PAK............................... 6

CONCLUSION............................................................ 9

iii

TABLE OF AUTHORITIES

CASES

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977) ...................................... 1, 5, 7-8

BE & K Constr. Co. v. N.L.R.B,

536 U.S. 516 (2002) ................................................. 3

Bill Johnson’s Restaurants, Inc. v. N.L.R.B.,

461 U.S. 731 (1983) ................................................. 3

Brosterhous v. State Bar of Cal.,

12 Cal. 4th 315 (1995) ............................................. 1

Chicago Teachers Union v. Hudson,

475 U.S. 292 (1986) ................................................. 7

Commc’ns Workers of Am. v. Beck,

487 U.S. 735 (1988) ................................................. 7

Cumero v. Pub. Emp’t Relations Bd.,

49 Cal. 3d 575 (1989)............................................... 1

Davenport v. Washington Educ. Ass’n,

551 U.S. 177 (2007) ................................................. 4

Edelman v. Jordan,

415 U.S. 651 (1974) ................................................. 6

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council,

485 U.S. 568 (1988) ................................................. 3

Ellis v. Bhd. of Ry., Airline, & S.S. Clerks,

466 U.S. 435 (1984) ................................................. 7

Fed. Election Comm’n v. Wisconsin

Right to Life, Inc.,

551 U.S. 449 (2007) ................................................. 6

Felter v. S. Pac. Co.,

359 U.S. 326 (1959) ................................................. 5

Friedrichs v. Cal. Teachers Ass’n,

136 S. Ct. 1083 (2016) ............................................. 1

Harris v. Quinn,

134 S. Ct. 2618 (2014) ......................................... 1, 8

Int’l Ass’n of Machinists and

Aerospace Workers v. Haley,

832 F. Supp. 2d 612 (D.S.C. 2011), aff’d, 482 Fed.

App’x 759 (4th Cir. 2012) ........................................ 4

Int’l Ass’n of Machinists v. Street,

367 U.S 740 (1961) .................................................. 3

Janus v. Am. Fed’n State, Cty. &

Mun. Emps., Council 31,

138 S. Ct. 2448 (2018) ....................................passim

Keller v. State Bar of Cal.,

496 U.S. 1 (1990) ..................................................... 1

Knox v. Serv. Emps. Int’l Union, Local 1000,

567 U.S. 298 (2012) ......................................... 1, 4, 8

Lehnert v. Ferris Faculty Ass’n,

500 U.S. 507 (1991) ................................................. 7

N.L.R.B. v. Atlanta Printing Specialists and Paper

Prods. Union 527, AFL-CIO,

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

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ................................................. 6

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................. 6

Sea Pak v. Industrial, Technical, and Professional

Employees, Division of National Maritime Union,

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

Smith v. Ark. State Highway Emps., Local 1315,

441 U.S. 463 (1979) ................................................. 3

STATUTES

29 U.S.C. § 158(b)(4) ................................................... 3

29 U.S.C. § 186(c)(4) ................................................... 5

RULES

Supreme Court Rule 37.2(a) ....................................... 1

Supreme Court Rule 37.6 ........................................... 1

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) was founded in

1973 and is widely recognized as the largest and most

experienced nonprofit legal foundation of its kind. 1

Among other matters affecting the public interest,

PLF has repeatedly litigated in defense of the First

Amendment rights of workers. PLF attorneys were

counsel of record in Keller v. State Bar of Cal., 496

U.S. 1 (1990); Brosterhous v. State Bar of Cal., 12 Cal.

4th 315 (1995); and Cumero v. Pub. Emp’t Relations

Bd., 49 Cal. 3d 575 (1989). PLF has participated as

amicus curiae in all of the most important cases

involving the application of the First Amendment

freedoms of speech and association to instances of

government compulsion, from Abood v. Detroit Bd. of

Educ., 431 U.S. 209 (1977), to Knox v. Serv. Emps. Int’l

Union, Local 1000, 567 U.S. 298 (2012), Harris v.

Quinn, 134 S. Ct. 2618 (2014), Friedrichs v. Cal.

Teachers Ass’n, 136 S. Ct. 1083 (2016), and Janus v.

Am. Fed’n State, Cty. & Mun. Emps., Council 31, 138

S. Ct. 2448 (2018).

1 Pursuant to this Court’s Rule 37.2(a), all parties have consented

to the filing of this brief. Counsel of record for all parties received

notice at least 10 days prior to the due date of the Amicus

Curiae’s intention to file this brief.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

The Seventh Circuit panel majority concluded in

this case that a portion of Wisconsin’s 2015 right-towork law, which imposes a time limit on dues checkoff authorizations, is preempted by federal law under

Sea Pak v. Indus., Tech., & Prof’l Emps., 400 U.S. 985

(1971) (mem.), which was a summary affirmation of a

Georgia district court opinion of dubious continued

vitality. Pet. App. 41a; id. at 43a-44a (Manion, J.,

dissenting). In addition to the reasons stated in the

petition for writ of certiorari, this Court should grant

review to consider whether the line of cases

culminating in Janus further calls into doubt Sea

Pak’s reasoning and result. These cases vindicated the

individual right of each public employee not to

subsidize union speech. Here, they counsel against an

expansive preemption doctrine that prohibits states

from protecting employees’ freedom of choice. PLF

urges this Court to grant the petition so that it can

consider the effect of its decision in Janus on the law

challenged here.

REASONS TO GRANT THE PETITION

THIS COURT SHOULD RECONSIDER SEA

PAK IN LIGHT OF CHANGES IN FIRST

AMENDMENT EFFECTS ON LABOR LAW

Although the panel majority below observed no

“sea-change in labor-law preemption or preemption

more generally” that would justify a departure from

this Court’s 1971 affirmance in Sea Pak, Pet. App.

16a, there has been such a sea-change in First

Amendment doctrine as it relates to labor law. In

Janus, this Court recently reaffirmed that the First

Amendment places significant restrictions on the

ability of federal and state governments to mandate

the speech of their employees. Janus, 138 S. Ct. at

2460. The Court’s emphasis on the freedom of the

individual employees vis-à-vis the union calls into

question a union’s ability to rely on preemption to

support an effort to restrict employee choice.

The First Amendment limits the reach of federal

labor law. BE & K Constr. Co. v. N.L.R.B, 536 U.S.

516, 536 (2002) (holding that the National Labor

Relations Board violated the First Amendment’s

Petition Clause by deciding that a company violated

federal labor law by prosecuting an unsuccessful suit

with a retaliatory motive); Smith v. Ark. State

Highway Emps., Local 1315, 441 U.S. 463, 465 (1979)

(per curiam). While First Amendment challenges are

distinct from preemption claims, federal labor

statutes, and their preemptive effect, must be

construed with the First Amendment in mind. Bill

Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731,

743 (1983); id. at 753 (Brennan, J., concurring) (The

Court finds it “inappropriate to infer” that Congress

did not intend the National Labor Relations Act to

infringe upon First Amendment rights.). To avoid

First Amendment problems, this Court has, when

necessary, adopted a limiting construction of the

National Labor Relations Act to ensure that the Act

does not infringe upon protected speech, association,

and petition rights. See Edward J. DeBartolo Corp. v.

Florida Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568, 575 (1988) (holding that 29 U.S.C.

§ 158(b)(4) did not extend to hand billing, which is

protected by the First Amendment); Int’l Ass’n of

Machinists v. Street, 367 U.S 740, 749 (1961)

(emphasizing that the Court “pass[ed] narrowly” on

the relevant section of the Railway Labor Act to avoid

violation of the First Amendment). 2

In the context of compelled public employee union

dues, the critical First Amendment rights belong to

the employees, not the unions. Davenport v.

Washington Educ. Ass’n, 551 U.S. 177, 185 (2007)

(“[U]nions have no constitutional entitlement to the

fees of nonmember-employees.”); Knox, 567 U.S. at

321 (In the context of agency fees, the union is “the

side whose constitutional rights are not at stake.”)

(emphasis added). Building on these cases, Janus

recognized that “a significant impingement on First

Amendment rights occurs when public employees are

required to provide financial support for a union.” 138

S. Ct. at 2464 (internal quotes and citation omitted).

Hopes for “labor peace” do not justify compelled union

support, nor does the risk of “free riders.” Id. at 246667. (“[T]he First Amendment does not permit the

government to compel a person to pay for another

party’s speech just because the government thinks

that the speech furthers the interest of the person who

does not want to pay.”). The individual employee’s

right not to subsidize the union trumps both of these

concerns.

Though this case does not concern public

employee unions, the principles underlying the

Court’s analysis in Janus are nonetheless applicable

to private sector unions. Section 302(c)(4) of the TaftSee also Int’l Ass’n of Machinists and Aerospace Workers v.

Haley, 832 F. Supp. 2d 612, 634 (D.S.C. 2011), aff’d, 482 Fed.

App’x 759 (4th Cir. 2012) (interpreting National Labor Relations

Act to avoid the need to address whether it is “compatible with

the First Amendment”).

Hartley Act permits check-off agreements so long as

they are irrevocable for no longer than one year.

29 U.S.C. § 186(c)(4). Congress’ limitation on

irrevocability was meant to protect the employee’s

freedom of choice, not to grant the union a statutory

right to one year of check-off irrevocability. See

N.L.R.B. v. Atlanta Printing Specialists and Paper

Prods. Union 527, AFL-CIO, 523 F.2d 783, 786 (5th

Cir. 1975) (making the same point regarding Section

302’s voluntary written consent requirement). As the

Court said long ago, statutory restrictions on dues

check-off agreements exist to protect “the employee’s

individual freedom of decision” to revoke his

authorization. Felter v. S. Pac. Co., 359 U.S. 326,

333-34 (1959).

Like the Janus line of cases, the battle over dues

check-off agreements pits employee freedom against

union security. Janus counsels that courts should

privilege the former over the latter. Courts need not

read the National Labor Relations Act so broadly that

it preempts state and local attempts to bolster Section

302(c)(4) and further enhance employee choice. Such

attempts are consistent with the spirit of the First

Amendment, which makes clear that individuals

cannot be compelled to subsidize the private speech of

private organizations. These provisions do not violate

federal law.

Just like Abood, 431 U.S. at 226, this Court’s

summary affirmance in Sea Pak is an anomaly,

incompatible with the First Amendment’s protection

of individual speech rights. And just as Janus ended

“the oddity of privileging compelled union support[,]”

138 S. Ct. at 2484, this Court should grant the petition

in this case to hold that Sea Pak’s regime restricting

employee freedom to revoke check-off agreements no

longer remains viable after Janus.

STARE DECISIS IS NO BAR TO

RECONSIDERING SEA PAK

Stare decisis should not deter this Court from

reconsidering Sea Pak. An exceptionally important

constitutional issue is presented in this case: whether

restricting employee freedom to revoke dues check-off

agreements violates the First Amendment rights of

workers. Stare decisis is a high bar to overcome, but it

is “not an inexorable command.” Pearson v. Callahan,

555 U.S. 223, 233 (2009). The doctrine applies “with

perhaps the least force of all to decisions that wrongly

denied First Amendment rights: ‘This Court has not

hesitated to overrule decisions offensive to the First

Amendment (a fixed star in our constitutional

constellation, if there is one.).’” Janus, 138 S. Ct. at

2478 (quoting Fed. Election Comm’n v. Wisconsin

Right to Life, Inc., 551 U.S. 449, 500 (2007) (Scalia, J.,

concurring in part and concurring in judgment)). It is

particularly appropriate to overrule previous

decisions when intervening changes have “removed or

weakened the conceptual underpinnings from the

prior decision.” Patterson v. McLean Credit Union, 491

U.S. 164, 173 (1989).

In this case, the Janus line of cases has

significantly weakened the already precarious Sea

Pak summary affirmance. See Edelman v. Jordan, 415

U.S. 651, 670-71 (1974) (summary affirmances

command lesser “precedential value”). This Court’s

Sea Pak decision itself is a summary affirmance of

Fifth Circuit affirmance issued with no additional

analysis. Sea Pak v. Industrial, Technical, and

Professional Employees, Division of National

Maritime Union, 423 F.2d 1229, 1230 (5th Cir. 1970).

The sole opinion in the case was rendered by a district

court without the benefit of the significant body of

First Amendment law in the labor context that later

developed.

Sea Pak is a relic and should no longer be

sufficient support for a plan which severely restricts

worker choice. When this Court summarily affirmed

Sea Pak in 1971, the Court had not yet begun to

regularly consider—much less uphold—the First

Amendment rights of employees in the union context.

Since then, due in part to concerns about worker

rights and freedom, this Court has prohibited:

•

using nonmember and dissenters’ funds,

even temporarily, for political purposes,

Abood, 431 U.S. at 235; Ellis v. Bhd. of Ry.,

Airline, & S.S. Clerks, 466 U.S. 435, 444

(1984);

•

taking compulsory fees from public and

private sector nonmembers without having

procedural safeguards in place, Chicago

Teachers Union v. Hudson, 475 U.S. 292,

302-3 (1986); Commc’ns Workers of Am. v.

Beck, 487 U.S. 735, 745-47 (1988);

•

forcing nonmembers to contribute to any

union activities, like supporting political

speech or causes, not germane to collective

bargaining, Lehnert v. Ferris Faculty Ass’n,

500 U.S. 507, 519 (1991); Beck, 487 U.S. at

745 (extending Hudson protections to

private sector workers); and

•

imposing a special assessment or dues

increase without notice and affirmative

consent from nonmembers, Knox, 567 U.S.

at 322.

This Court recognized that Abood was on its last

legs in Harris v. Quinn, refusing to extend Abood to

nonunion Medicaid-funded home healthcare workers

because the scheme prohibited workers from choosing

not to subsidize the union they did not support. 134 S.

Ct. at 2638. Last year, Janus overruled Abood in the

most recent example of this Court’s gradual shift

towards the understanding that the First Amendment

places significant restrictions on the ability of federal

and state governments to limit employees’ speech and

associational choices. Janus, 138 S. Ct. at 2460.

In dismantling a longstanding case like Abood,

this Court showed its willingness to overturn

precedent which conflicts with the First Amendment

rights of workers in relation to labor unions. There is

little difference between forcing nonmembers to

subsidize a union through an agency fee and forcing

nonmembers to subsidize a union through a dues

check-off authorization. Both instances severely limit

worker choices regarding their protected speech and

association rights. However, while the former is

unconstitutional under Janus, the latter is currently

being propped up by now-discredited Sea Pak

summary affirmance.

The Court’s emphasis on protecting the First

Amendment freedom of individual employees over the

extraordinary statutory powers granted to unions

calls into question any union’s ability to rely on

preemption doctrine as a means to restrict employee

choice. To the extent that Sea Pak supports

restrictions on the rights of workers to revoke dues

check-off agreements, which unconstitutionally

funnel employee funds to unions they no longer

endorse, it should be overruled. This Court should

seize this opportunity to address this important and

timely issue.

CONCLUSION

The briefing and argument in this case before the

Seventh Circuit concluded almost a year before Janus

was decided, and therefore the lower court did not cite

it. Post-Janus, the Seventh Circuit rejected a request

for rehearing in light of that substantial change in the

law surrounding the intersection between labor law

and the First Amendment rights of employees.

Although this is not a First Amendment case, the

principles espoused in Janus counsel against utilizing

broad preemption doctrines to stifle state and local

attempts to secure employee choice in this area. The

Court should grant the petition for writ of certiorari to

reexamine how Janus affects the required preemption

analysis and decide whether Sea Pak is still good law.

DATED: February, 2019.

Respectfully submitted,