Amicus Curiae Brief — Ben Branch, et al., Petitioners v. Massachusetts Department of Labor Relations, et al.
Supreme Court briefAug 7, 2019
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No. 19-51
IN THE
Supreme Court of the United States
BEN BRANCH, et al.,
Petitioners,
v.
MASSACHUSETTS DEPARTMENT
OF LABOR RELATIONS, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS
BRIEF FOR PIONEER INSTITUTE AS
AMICUS CURIAE SUPPORTING PETITIONERS
MARK MATUSCHAK
Counsel of Record
TASHA BAHAL
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
mark.matuschak@wilmerhale.com
QUESTION PRESENTED
Whether Mass. Gen. Laws ch. 150E § 4, which endorses a public-sector union as an exclusive bargaining
representative, unduly coerces Petitioners’ First
Amendment free speech and association rights by preventing them from having a voice and vote in the terms
of their employment unless they pay for union membership.
(i)
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................... i
TABLE OF AUTHORITIES .......................................... iv
INTEREST OF AMICUS CURIAE .............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................................... 1
ARGUMENT ....................................................................... 4
I.
THE PETITION PRESENTS QUESTIONS OF
GREAT AND RECURRING IMPORTANCE ..................... 4
II. MASS. GEN. LAWS CH. 150E § 4 SHOULD BE
SUBJECT TO STRICT SCRUTINY AS AN
ENCROACHMENT ON FREEDOM OF SPEECH
AND ASSOCIATION ........................................................ 8
A. This Court Should Resolve The
Distinct “Exacting” And “Strict”
Standards At Issue In Compelled
Speech Cases ....................................................... 10
B. Mass. Gen. Laws ch. 150E § 4 Cannot
Withstand Even The Less Demanding
Test Of Exacting Scrutiny ................................. 11
C. Mass. Gen. Laws ch. 150E § 4 Is An
Unconstitutional Encroachment On
Petitioners’ First Amendment Rights
That Involves State Action ............................... 15
CONCLUSION ................................................................. 21
(iii)
iv
TABLE OF AUTHORITIES
CASES
Page(s)
Abood v. Detroit Board of Education, 431 U.S.
209 (1977) ................................................................. 5, 17
Berman v. New York State Public Employee
Federation, No. 16-204, 2019 WL 1472582
(E.D.N.Y. Mar. 31, 2019) ............................................. 6
Bierman v. Dayton, 900 F.3d 570 (8th Cir.
2018) ............................................................................... 6
Boy Scouts of America v. Dale, 530 U.S. 640
(2000) ............................................................................ 12
Brentwood Academy v. Tennessee Secondary
School Athletic Ass’n, 551 U.S. 291 (2007) ............. 16
Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980) ..................... 11
Elrod v. Burns, 427 U.S. 347 (1976) ............................... 11
Hallinan v. Fraternal Order of Police of Chicago, 570 F.3d 811 (7th Cir. 2009) ............................ 19
Harmon v. Matarazzo, 162 F.3d 1147 (2d Cir.
1998) ............................................................................. 19
Harris v. Quinn, 573 U.S. 616 (2014) ................. 10, 11, 13
Healy v. James, 408 U.S. 169 (1972) ................................. 3
Hovan v. United Brotherhood of Carpenters &
Joiners of America, 704 F.2d 641 (1st Cir.
1983) ............................................................................. 18
International Ass’n of Machinists v. Street,
367 U.S. 740 (1961) ......................................... 16, 17, 18
v
TABLE OF AUTHORITIES—Continued
Page(s)
Jackson v. Temple University of Commonwealth System of Higher Education, 721
F.2d 931 (3d Cir. 1983) ............................................... 19
Janus v. American Federation of State, County, & Municipal Employees, 138 S. Ct. 2448
(2018) ................................................................... passim
Kidwell v. Transportation Communications
International Union, 946 F.2d 283 (4th Cir.
1991) ............................................................................. 18
Knox v. Service Employees International Union, 567 U.S. 298 (2012).............................. 8, 12, 16, 17
Lugar v. Edmonson Oil Co., 457 U.S. 922
(1982) ............................................................................ 15
Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019) ........................................ 15
Mentele v. Inslee, 916 F.3d 783 (9th Cir. 2019) ............... 5
Messman v. Helmke, 133 F.3d 1042 (7th Cir.
1998) ............................................................................. 19
Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984) .......................... 5, 14
NAACP v. Alabama ex rel. Patterson, 357
U.S. 449 (1958) .............................................................. 3
Railway Employment Department v. Hanson,
351 U.S. 225 (1956) ..................................................... 17
Rutan v. Republican Party of Illinois, 497 U.S.
62 (1990) ................................................................... 4, 20
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Steele v. Louisville & Nashville Railway Co.,
323 U.S. 192 (1944) ..................................................... 16
Turner v. Air Transport Lodge 1984 of International Ass’n of Machinists & Aerospace
Workers, 590 F.2d 409 (2d Cir. 1978) ....................... 18
United Steelworkers of America v. Sadlowski,
457 U.S. 102 (1982) ..................................................... 18
Uradnik v. Inter Faculty Organization, No.
CV 18-1895, 2018 WL 4654751 (D. Minn.
Sept. 27, 2018) ............................................................... 6
STATUTES AND RULES
Del. Code. Ann. tit. 19, § 1304 ............................................ 7
Haw. Stat. Ann. § 89-4 ........................................................ 7
Ill. Comp. Stat. ch. 5 § 315/6 ............................................... 5
Mass. Gen. Laws ch. 150E § 4 ................................. passim
N.J. Rev. Stat. § 52:14-15 ................................................... 7
R.I. Gen. Laws § 28-9.2-18 ................................................. 7
S. Ct. R. 10 ............................................................................ 8
OTHER AUTHORITIES
Alt, Robert & Andrew M. Grossman, Opinion,
It’s Time to Stop Forcing Workers To Labor Under Exclusive Representation, The
Hill (Aug. 30, 2018), https://thehill.com/
opinion/civil-rights/404246-its-time-to-stopforcing-workers-to-labor-under-exclusiverepresentation............................................................... 9
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Bivens, Josh, et al., Economic Policy Institute,
How Today’s Unions Help Working People: Giving Workers The Power To Improve
Their Jobs And Unrig The Economy (Aug.
24, 2017), https://www.epi.org/publication/
how-todays-unions-help-working-peoplegiving-workers-the-power-to-improvetheir-jobs-and-unrig-the-economy/............................ 9
Educators for Excellence, Awaiting Janus v.
AFSCME Decision, Teachers Weigh in on
Unions (May 23, 2018), https://e4e.org/
blog-news/press-release/awaiting-janus-vafscme-decision-teachers-weigh-unions.................. 14
Fisch, Marc E., Yankee Institute, AFSCME
Defies Janus, Tells Members They Can’t
Leave (Nov. 28, 2018), https://yankee
institute.org/2018/11/28/afscme-defies-janustell-members-they-cant-leave/ ................................... 7
Hunter, Robert P., Macinkac Center for Public
Policy, Exclusive Representation (May 1,
1997), https://www.mackinac.org/1007 ...................... 9
Malkus, Nat, American Enterprise Institute,
The Janus Case and the Future of Teachers Unions, http://www.aei.org/spotlight/
the-janus-case/ (visited Aug. 7, 2019) ...................... 13
Massachusetts H.B. 3854, 191st Gen. Assemb.,
Reg. Sess. (2019) ........................................................... 7
Massachusetts Society of Professors, Why
Join, https://umassmsp.org/join/why-join/
(visited Aug. 7, 2019) ................................................... 9
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Massachusetts Teachers’ Ass’n, Good Reasons
to Belong to MTA, https://massteacher.org/
about-the-mta/good-reasons-to-belong-to-mta
(visited Aug. 7, 2019) ............................................... 3, 8
National Right to Work Legal Defense Foundation, Right to Work Frequently Asked
Questions, https://www.nrtw.org/right-towork-frequently-asked-questions/ (visited
Aug. 7, 2019) ................................................................ 13
New York State Governor’s Office, In Response to Janus Decision, Governor Cuomo Signs Executive Order to Protect Union Members from Harassment and Intimidation (June 27, 2018) ................................................. 6
Orenstein, Walker, State Worker Unions Get
Court Victory in Public Records Clash
with Conservative Group, News Tribune
(Nov. 6, 2017)................................................................. 6
INTEREST OF AMICUS CURIAE1
Pioneer Institute (“Pioneer”) is an independent,
non-partisan, privately funded research organization
that seeks to improve the quality of life in Massachusetts through civic discourse and intellectually rigorous, data-driven public policy solutions. Pioneer seeks
to change policies that negatively affect freedom of association, freedom of speech, economic freedom, and
government accountability. Pioneer believes that the
First Amendment protects individuals from being
forced to associate with or subsidize political speech
with which they disagree. That protection promotes a
diverse and robust public discourse in service of the
common good, where individuals are free to follow and
express their own opinions rather than be involuntarily
pressed, as a condition of their right to earn a living, to
support causes with which they disagree.
INTRODUCTION AND SUMMARY OF ARGUMENT
Massachusetts has an exclusive representation
scheme for public employees that permits unions to exclude non-union members from participating in discussions regarding the terms of their employment. Mass.
Gen. Laws ch. 150E § 4 (“Exclusive Representation
Scheme” or “Mass. Gen. Laws ch. 150E § 4”) (“Public
employers may recognize an employee organization
1
Pursuant to this Court’s Rule 37.2(a), all parties have consented to the filing of 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.
2
designated by the majority of the employees in an appropriate bargaining unit as the exclusive representative of all the employees in such unit for the purpose of
collective bargaining.”). That scheme cannot withstand
constitutional scrutiny under the logic and analysis of
this Court’s decision in Janus v. American Fed’n of
State, Cty., & Mun. Emps., 138 S. Ct. 2448, 2483 (2018)
(holding that a non-union public employee must freely
consent before any agency fee is exacted).
In particular, the Exclusive Representation
Scheme impermissibly gives unions the ability to deny
non-union members any voice or vote on the terms of
their employment. That grant of authority from the
Commonwealth of Massachusetts—and the unions’ use
of it—infringes the non-union employees’ First
Amendment rights not to be forced to endorse or subsidize political speech, and not to associate with groups
or opinions with which they disagree.
In sum, the state grants a union the exclusive right
to bargain for public employees. Those employees then
face a Hobson’s Choice—either follow their conscience
and refuse to subsidize the union’s political speech (in
which case they will have no say whatsoever in the
terms and conditions of their job), or subsidize the union’s political speech with which they disagree in order
to have a say relating to their employment conditions.
This political coercion granted by state statute leaves
the First Amendment rights of employees who disagree with the union’s political speech in tatters.
Indeed, because the public employer—the state—is
required to reach an agreement with the collective bargaining agent, the state cannot (even if it wanted to)
consider the concerns of non-union members related to
the terms of their public employment. Cf. Janus, 138 S.
3
Ct. at 2469 (“[D]esignating a union as the exclusive
representative of nonmembers substantially restricts
the nonmembers’ rights.”).
By permitting the exclusive bargaining representative to preclude non-union members from effectively
communicating with their employers on matters of personal concern and communicating with the government
about matters of public concern, it is more than “likely”
that non-union members will face significant pressure
to forgo their rights not to associate with and subsidize
speech they disagree with, and join the union against
their wishes in order to preserve their voice. NAACP
v. Alabama ex rel. Patterson, 357 U.S. 449, 462-463
(1958) (explaining that laws impair First Amendment
rights when they “entail[] the likelihood of a substantial
restraint upon the exercise … of [the] right to freedom
of association,” are “likely to affect adversely the ability of [individuals] to pursue their collective effort to
foster beliefs which they admittedly have the right to
advocate,” or “may induce members” to forgo First
Amendment freedoms); see also Healy v. James, 408
U.S. 169, 183 (1972) (explaining that courts “are not
free to disregard the practical realities” that may indirectly impair First Amendment rights). In fact, the respondent unions in this case freely acknowledge that
membership is the price of admission for retaining
“First Amendment rights.” See, e.g., Massachusetts
Teachers’ Ass’n, Good Reasons to Belong to MTA,
https://massteacher.org/about-the-mta/good-reasons-tobelong-to-mta (visited Aug. 7, 2019) (explaining that
joining a union “[p]rovides legal protection of your
First Amendment rights to speak freely”).
As set forth below, the Supreme Judicial Court of
Massachusetts (the “SJC”) erred in finding constitutional the respondent unions’ application of Mass. Gen.
4
Laws ch. 150E § 4 to deprive non-members of a voice
and vote in the terms of their employment. This Court
should grant certiorari to correct this constitutional error. Petitioners, and others similarly situated throughout the country, should not be forced to subsidize political speech with which they fundamentally disagree as
the price of preserving their right to communicate with
their employer about their job or on matters of importance. This Court has invalidated such a false choice
in other contexts, and should do so again here. See Rutan v. Republican Party of Ill., 497 U.S. 62, 73 (1990)
(holding that an employer may not exclude or withdraw
benefits from an employee based on political affiliation).
ARGUMENT
I.
THE PETITION PRESENTS QUESTIONS OF GREAT AND
RECURRING IMPORTANCE
The First Amendment precludes the government
from coercing speech. Janus v. American Fed’n of
State, Cty., & Mun. Emps., 138 S. Ct. 2448, 2463 (2018)
(“Compelling individuals to mouth support for views
they find objectionable violates [a] cardinal constitutional command, and in most contexts, any such effort
would be universally condemned.”). Coerced speech is
not limited to forced speech, but also includes compulsory financial support of organizations with which one
disagrees. Id. at 2464 (“Compelling a person to subsidize the speech of other private speakers raises similar
First Amendment concerns. … As Jefferson famously
put it, ‘to compel a man to furnish contributions of
money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.’”). These
protections apply equally to non-union public employees. Id. at 2473.
5
In Janus, this Court considered an Illinois provision requiring that non-union public employees “pay [to
their exclusive bargaining representative] a fee which
shall be their proportionate share of the costs of the collective bargaining process, contract administration and
pursuing matters affecting wages, hours and other conditions of employment.”
Ill. Comp. Stat. ch. 5
§ 315/6(a). Overruling Abood v. Detroit Bd. of Educ.,
431 U.S. 209 (1977), this Court held the provision unconstitutional. Janus, 138 S. Ct. at 2486. The Court
held that “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages … unless the employee affirmatively consents to pay” that fee. Id. That is because coercing a
non-union employee to give financial support to union
speech with which a non-union employee disagrees “violates [the] cardinal constitutional command” against
compelled speech. Id. at 2463.
Despite this Court’s holding that laws coercing
non-union member public employee speech and association are unconstitutional, see Janus, 138 S. Ct. at 2483,
non-union members who do not wish to associate with
unions continue to be deprived of a voice and a vote in
their employment conditions. Litigation on this issue is
pervasive and lower courts have failed to apply Janus
consistently, instead erroneously upholding exclusive
bargaining arrangements that exclude non-members
from having a say in the terms of their employment,
often relying on Minnesota State Bd. for Cmty. Colls.
v. Knight, 465 U.S. 271 (1984). See, e.g., Mentele v.
Inslee, 916 F.3d 783, 788 (9th Cir. 2019) (“We
acknowledge that Knight’s recognition that a state cannot be forced to negotiate or meet with individual employees is arguably distinct from Miller’s contention
that employees’ associational rights are implicated
6
when a state recognizes an exclusive bargaining representative with which non-union employees disagree”);
Bierman v. Dayton, 900 F.3d 570, 574 (8th Cir. 2018),
cert. denied, 139 S. Ct. 2043 (2019); Uradnik v. Inter
Faculty Org., No. 18-1895, 2018 WL 4654751, at *3 (D.
Minn. Sept. 27, 2018) (finding that plaintiff’s compelled
speech arguments had little chance of success based on
an application of Knight); cf. Berman v. New York State
Pub. Emp. Fed’n, No. 16-204, 2019 WL 1472582, at *1-2
(E.D.N.Y. Mar. 31, 2019) (granting motion for reconsideration on a damages claim arising out of agency fee
collections after Janus). But nothing in Knight suggests—let alone compels—the conclusion that nonunion members may be constitutionally deprived of any
voice and vote in matters within the scope of their employment, unless they support the union’s speech
through a paid membership.
Moreover, both in anticipation of this Court’s invalidation of agency fees and as a reaction to Janus itself,
unions and state governments have enacted policies
that fly in the face of this Court’s decision in Janus.
For example, unions have sought injunctions to prevent
workers’ rights groups from gaining access to membership rolls to prevent workers from learning about their
options after Janus. See New York State Governor’s
Office, In Response to Janus Decision, Governor Cuomo Signs Executive Order to Protect Union Members
from Harassment and Intimidation (June 27, 2018)
(New York executive order preventing state agencies
from sharing the names and contact information of public employees with outside groups, presumably associated with the right to work movement); Orenstein,
State Worker Unions Get Court Victory in Public Records Clash with Conservative Group, News Tribune
(Nov. 6, 2017), https://www-1.thenewstribune.com/news/
7
politics-government/article181986881.html (outlining a
dispute between the AFSCME and right to work
groups that sought access to union member lists to explain new rights to public employees). Unions have also imposed undue logistical burdens on members who
hoped to end their membership following Janus. See
Fisch, Yankee Institute, AFSCME Defies Janus, Tells
Members They Can’t Leave (Nov. 28, 2018), https://
yankeeinstitute.org/2018/11/28/afscme-defies-janus-tellmembers-they-cant-leave/ (describing an ongoing dispute between Connecticut workers and their union,
which has placed severe restrictions around their contractual ability to leave the union).
Beyond internal union rules, legislation in New
York, Delaware, Hawaii, and California, among other
states, insulates unions from the impact of the Janus
decision at the expense of the First Amendment rights
of workers. These laws are not consistent with Janus.
See, e.g., N.J. Rev. Stat. § 52:14-15 (limiting opt-out period to 30-day window and prohibiting employees from
discouraging others to leave a public union); Haw. Stat.
Ann. § 89-4 (limiting opt-out period to 30-day window);
R.I. Gen. Laws § 28-9.2-18 (permitting unions to cease
representing non-union firefighters and police officers
in workplace grievance cases, thus depriving them of a
benefit of employment); Del. Code. Ann. tit. 19, § 1304
(limiting opt out period to 30-day window); see also
Mass. H.B. 3854, 191st Gen. Assemb., Reg. Sess. (2019)
(permitting unions access to new employees’ contact
information while limiting outside group access to union worker lists and allowing unions to charge nonmembers a “reasonable … fee []” for representation in
grievance cases).
As these laws and policies demonstrate, although
unions are no longer able to extract compulsory agency
8
fees, they have leveraged power in other ways, including
as exclusive representatives, to coerce employees to join
or remain in a union with which they do not wish to associate. The First Amendment questions raised by exclusive representation schemes like Mass. Gen. Laws ch.
150E § 4—including whether they violate non-members’
free speech and associational rights—are “important
question[s] of federal law that ha[ve] not been, but
should be, settled by this Court.” S. Ct. R. 10(c).
II. MASS. GEN. LAWS CH. 150E § 4 SHOULD BE SUBJECT
TO STRICT SCRUTINY AS AN ENCROACHMENT ON
FREEDOM OF SPEECH AND ASSOCIATION
Mass. Gen. Laws ch. 150E § 4 permits public sector
unions—including the respondent unions in this case—
to exclude non-union members from participating in union deliberations regarding the terms of their employment to be negotiated by the union on behalf of the
public employees. See, e.g., Pet. App. 78a (“WARNING: IF YOU ELECT [NOT] TO … BECOME A
MEMBER … YOU WILL NOT BE ENTITLED TO
THE FOLLOWING SERVICES[:] … [the] [a]bility to
… vote on … contract proposals or bargaining strategy.”). Such a scheme coerces employees to relinquish
at least two First Amendment rights: (1) the right to
freedom of association, see Knox v. Service Emps. Int’l
Union, 567 U.S. 298, 309 (2012); and (2) the right to
freedom of speech. Janus, 138 S. Ct. at 2475-2476.
The unions themselves acknowledge that union
membership is the price of admission for retaining
“First Amendment rights.” Mass. Teachers’ Ass’n,
Good Reasons to Belong to MTA, https://mass
teacher.org/about-the-mta/good-reasons-to-belong-tomta (visited Aug. 7, 2019) (explaining that joining a union “[p]rovides legal protection of your First Amend-
9
ment rights to speak freely”); Mass. Soc’y of Profs.,
Why Join, https://umassmsp.org/join/why-join/ (visited
Aug. 7, 2019) (“When you join the MSP, you have a
voice.”).2 But non-union members—like petitioners—
have neither any interest in associating with their public sector unions nor any interest in subsidizing union
speech. Pet. App. 6a (noting petitioner Dr. Ben
Branch’s aversion to the union because of his “belie[f]
that he and the [union] have dissimilar views on political causes, political candidates, approaches to compensation, and rules for work, promotion and tenure”); id.
5a (petitioner Dr. William Conner explaining that union
membership is not in his best interests and that he opposes the union’s political and ideological views); id. 8a
2
See also Bivens et al., Econ. Pol’y Inst., How Today’s Unions Help Working People: Giving Workers The Power To Improve Their Jobs And Unrig The Economy, at 2 (Aug. 24, 2017)
(“‘Collective bargaining’ is how working people gain a voice at
work … Joining a union simply means you and your colleagues
have a say …”); Hunter, Mackinac Ctr. for Pub. Pol’y, Exclusive
Representation, (May 1, 1997), https://www.mackinac.org/1007
(noting that under an exclusive representation scheme, “[when] a
union is selected to represent employees in an ‘appropriate’ unit of
workers, the union alone has the legal authority to speak for all
employees, including those who neither voted for nor joined the
labor organization. No other union, individual or representative
may negotiate terms and conditions of employment, and the individual employee is effectively deprived of the opportunity to represent his or her own interests. … [L]abor laws are usually portrayed as benefiting employees, but the laws take away legally
and practically an individual’s right to price his or her own labor
and to work under conditions which are personally agreeable.”);
Alt & Grossman, Opinion, It’s Time to Stop Forcing Workers To
Labor Under Exclusive Representation, The Hill (Aug. 30, 2018),
https://thehill.com/opinion/civil-rights/404246-its-time-to-stop-forcingworkers-to-labor-under-exclusive-representation (noting that “for
workers who have not voluntarily joined a union, the government
is literally appointing someone to speak for them, in their name
and on their behalf”).
10
(petitioner Dr. Andre Melcuk explaining that he has
“philosophical, political, emotional, ethical, and psychological” objections to unions).
But given the unions’ ability—delegated by statute—to deprive non-union members of a voice and vote
on collective bargaining matters, petitioners’ choice not
to associate with the union precludes them from participating in the negotiation of the terms of their public sector employment, a subject that this Court in Janus recognized as having “great public concern.” Janus, 138 S.
Ct. at 2473 (finding negotiation of public sector contracts is “a category of speech that is of public concern”
because, for example, “a 5% raise for the many thousands of employees … could have a serious impact on
the budget of the government unit in question, and by
the same token, denying a raise might have a significant
effect on the performance of government services”).
A. This Court Should Resolve The Distinct “Exacting” And “Strict” Standards At Issue In
Compelled Speech Cases
This case also presents an appropriate opportunity
to resolve an unanswered constitutional question:
whether strict or exacting scrutiny should govern review of restrictions that public sector unions (acting
under authority delegated by the state) place on the
speech of non-union members regarding subjects of
great public interest. In Janus, this Court held that
agency fees could not survive the “exacting” scrutiny
standard recognized in Knox and Harris v. Quinn, 573
U.S. 616, 651 (2014). See Janus, 138 S. Ct. at 2456. At
the same time, this Court declined to decide whether
exacting or strict scrutiny was the proper standard for
restrictions placed on political speech by public union
arrangements. Harris, 573 U.S. at 651.
11
Amicus urges the Court to adopt the strict scrutiny
test here, as more than “commercial speech” is at stake
in this case. See Central Hudson Gas & Elec. v. Pub.
Serv. Comm’n, 447 U.S. 557, 562-564 (1980) (adopting
an intermediate scrutiny standard where commercial
speech is at stake). This Court in Janus questioned
whether exacting scrutiny provides sufficient protection for free speech rights where a union compels
speech, since “it is apparent that the speech compelled”
in agency-fee cases “is not commercial speech.” Janus,
138 S. Ct. at 2465 (quoting Harris, 134 S. Ct. at 2639)
(internal quotation marks omitted).
B. Mass. Gen. Laws ch. 150E § 4 Cannot Withstand Even The Less Demanding Test Of Exacting Scrutiny
This Court in Janus ruled that when First Amendment rights are infringed in the context of public employment, that infringement can only be justified if the
provision, at minimum, survives exacting scrutiny. Janus, 138 S. Ct. at 2472 n.9 (“[I]n public employment, a
significant impairment of First Amendment rights must
survive exacting scrutiny.”); see also Elrod v. Burns, 427
U.S. 347, 362 (1976) (“It is firmly established that a significant impairment of First Amendment rights must
survive exacting scrutiny. … ‘This type of scrutiny is
necessary even if any deterrent effect on the exercise of
First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct.”’).
To survive exacting scrutiny, the respondent unions must show that coercing non-union member public
employees to pay for union membership or else lose
their voice and vote in the terms of their employment
somehow “‘serve[s] a compelling state interest that
12
cannot be achieved through means significantly less restrictive of associational freedoms.’” Janus, 138 S. Ct. at
2465 (quoting Knox, 567 U.S. at 310); see also Boy Scouts
of Am. v. Dale, 530 U.S. 640, 648 (2000) (discussing the
balancing test required under exacting scrutiny).
Here, by permitting the exclusion of non-members
from a voice and vote regarding the terms and conditions of their employment, Massachusetts’ statute impermissibly coerces public employees to join a union
just to be able to express their views about the terms of
their employment, which is of significant public interest. In effectively forcing employees to join the union
to express their constitutionally protected views about
a matter of significant personal importance and public
interest, Mass. Gen. Laws ch. 150E § 4 forces employees who do not wish to join a union to forgo their constitutional right to the freedoms of association and
speech. That coercion is unconstitutional, as none of
the purported “compelling reasons” offered by the unions—and relied on by the SJC—justifies such a serious
deprivation of rights.
First, the SJC cited the government’s need to promote labor peace as a compelling interest on which the
government’s use of exclusive representation rests.
Pet. App. 55a. But even conceding that the government has a compelling interest in employing an efficient
and peaceful workforce, that efficiency inheres in having an exclusive representative; it does not justify depriving non-union members of a vote on the strategy
for negotiation or the terms to be negotiated by the exclusive representative. See Janus, 138 S. Ct. at 2465
(disaggregating the question whether exclusive representation served a compelling interest from the question whether the exclusive representative charging
agency fees similarly served that interest, and conclud-
13
ing the latter did not); Harris, 134 S. Ct. at 2640 (“A
union’s status as exclusive bargaining agent and the
right to collect an agency fee from non-members are
not inextricably linked.”).
Moreover, the state’s interest in maintaining peaceful labor relations may be achieved through less restrictive means than presenting employees with the impossible choice of joining a union they disagree with or losing
all say in the conditions of their employment. For example, this Court has found that sole reliance on agency
fees to promote labor peace lacks empirical foundation.
The same is true here. There is no evidence that peaceful labor relations turns on allowing unions to compel
workers to fund political speech they disagree with by
otherwise depriving them of a voice and vote in the
terms of their employment. Indeed, at least 27 states
have enacted right to work laws and have not seen significant issues with labor relations. See Nat’l Right to
Work Legal Def. Found., Right to Work Frequently
Asked Questions, https://www.nrtw.org/right-to-workfrequently-asked-questions/ (visited Aug. 7, 2019).
Second, the SJC feared that permitting non-union
members a voice and vote on the strategy for negotiation, or the terms to be negotiated, will destroy
the respondent unions’ ability to successfully negotiate
with employers and would disrupt “labor peace.” Pet.
App. 56a n.21. But employees join unions “to more effectively pursue their shared interests—such as improved compensation and better working conditions.”
Malkus, Am. Enter. Inst., The Janus Case and the Future of Teachers Unions, http://www.aei.org/spotlight/
the-janus-case/ (visited Aug. 7, 2019). Unions will continue to serve that fundamental purpose even if nonunion members are afforded a voice and vote on the
terms of their employment to be negotiated by a union.
14
See Educators for Excellence, Awaiting Janus v. AFSCME Decision, Teachers Weigh in on Unions (May 23,
2018), https://e4e.org/blog-news/press-release/awaitingjanus-v-afscme-decision-teachers-weigh-unions (discussing a recent study showing that “teachers largely regard their unions as essential,” and that of those teachers, the majority believe it is “critically important” for
unions to “prioritize wages, benefits, and job protections over politics”). Moreover, public employees will
retain the right to band together to pursue more effectively their shared interests by electing an exclusive
bargaining representative.
Instead of applying strict, or even exacting, scrutiny, the SJC erroneously analyzed the Massachusetts
scheme under rational basis review. Abood’s use of rational basis review was an outlier in this Court’s First
Amendment jurisprudence, which was cured by its
overruling. See Janus, 138 S. Ct. at 2458-2459 (finding
that Abood’s application of rational basis review was an
“anomaly” in speech law, and “[o]verruling Abood [to]
end the oddity of allowing public employers to compel
union support (which is not supported by any tradition)
but not to compel party support (which is supported by
tradition).”). There is no longer any justification to apply rational basis review to public sector unions in First
Amendment cases.3
3
The lower courts have refused to subject exclusive representation schemes to strict or exacting scrutiny, primarily because
of this Court’s holding in Minnesota State Board for Community
Colleges v. Knight, 465 U.S. 271 (1984); see also Pet. App. 6a-7a.
amicus agrees with petitioners, Pet. 17-19, that Knight’s holding
does not support the conclusion that exclusive representation is
subject only to rational basis review. Such a conclusion cannot
reasonably be squared with Janus, nor is it in line with established
First Amendment precedents.
15
Strict scrutiny is the appropriate standard in this
case, and the respondent unions’ application of Mass.
Gen. Laws ch. 150E § 4 fails to meet that standard. Indeed, Mass. Gen. Laws ch. 150E § 4 even fails to meet
the lesser demanding standard of exacting scrutiny.
C. Mass. Gen. Laws ch. 150E § 4 Is An Unconstitutional Encroachment On Petitioners’ First
Amendment Rights That Involves State Action
An infringement of First Amendment freedoms
need not be the direct result of state conduct itself. Instead, “a private entity can qualify as a state actor in a
few limited circumstances—including, for example, …
when the private entity performs a traditional and exclusive public function, … when the government compels a private entity to take a particular action, … when
the government acts jointly with the private entity,”
when “private action is attributable to the state,” and
when the state delegates authority to a private entity.
Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.
1921, 1928 (2019); see Lugar v. Edmonson Oil Co., 457
U.S. 922, 939 (1982). The action taken by the respondent unions in this case is authorized by the state government and is at the very least an action taken pursuant to government delegated authority. Massachusetts
enables the unions to negotiate exclusively with a public employer, thereby empowering them to deny nonmembers a voice and vote in the terms and conditions
of their employment if they do not pay union dues and
join the union.
Mass. Gen. Laws ch. 150E § 4 impermissibly delegates authority to a union to do something that Massachusetts itself could not constitutionally do. The deprivation of constitutional rights by private associations
16
pursuant to a delegation of authority by the state is no
less a constitutional violation than if expressly commanded by state law. Brentwood Acad. v. Tennessee
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001)
(“We have treated a nominally private entity as a state
actor when … [the private party] has been delegated a
public function by the State”). And the state cannot
delegate to a private organization the power to effectuate what the Constitution precludes the state itself
from doing. Lugar, 457 U.S. at 939 (holding that state
action turns in part on “whether the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority”); International Ass’n of Machinists v. Street, 367 U.S. 740, 749, 760
(1961) (finding questions are of the “utmost [constitutional] gravity” when “‘Congress has seen fit to clothe
the bargaining representative with powers comparable
to those possessed by a legislative body both to create
and restrict the rights of those whom it represents’”
(quoting Steele v. Louisville & Nashville Ry. Co., 323
U.S. 192, 202 (1944))). That principle holds true irrespective of whether the statute delegating authority to
the private entity makes express reference to—or expressly approves of—the discretionary practice engaged in by the private association. What is determinative is whether the power delegated to the private
association may be used to infringe constitutional
rights. Cf. Brentwood, 531 U.S. at 301 (holding that the
repeal of an express grant of authority did not render
constitutional a practice that “now [operates] by winks
and nods”).
A statutory scheme empowering a union or other
association to be an exclusive bargaining representative is subject to constitutional scrutiny to the extent it
enables the exclusive bargaining representative to en-
17
gage in conduct that, if engaged in by the state itself,
would be unconstitutional. See Railway Emp’t Dep’t v.
Hanson, 351 U.S. 225, 232-233 (1956) (holding that an
exclusive bargaining representative’s effort to force
non-union members to support ideological and political
positions against their will violated the First Amendment); Street, 367 U.S. at 749, 750, 760-762 (similar);
Abood, 431 U.S. at 220-222 (1977) (similar), rev’d on
other grounds, Janus, 138 S. Ct. 2448; see also Janus,
138 S. Ct. at 2464-2465 (implicitly holding that a public
employee union’s use of its exclusive bargaining position to force non-members to support political speech of
the union was state action for purposes of constitutional
analysis); Knox, 567 U.S. at 314-317 (considering the
constitutionality of an opt-out requirement for a union’s
special assessment fee).
Here, Massachusetts has provided by statute that
public employers—state actors—“may recognize” an
exclusive bargaining representative, in turn empowering that exclusive bargaining representative to negotiate exclusively on behalf of public employees. Mass.
Gen. Laws ch. 150E § 4. That exclusive power affords
the union substantial discretionary authority to determine the terms and conditions upon which employees
may engage with their employers regarding the terms
and conditions of their employment. To the extent that
the exclusive bargaining representative uses that authority to prevent non-union members from exercising
their First Amendment rights—which the respondent
unions are doing here—the statute’s empowerment of
the exclusive bargaining representative to engage in
that practice is state action and therefore subject to
constitutional challenge.
The SJC erroneously ruled that “the link between
exclusive representation and the union’s membership
18
requirements” is “too attenuated to constitute State
action.” Pet. App. 65a. That conclusion is unsustainable. Just like agency fees in Janus, which this Court
implicitly found were state action, denying a voice and
vote through the power granted by Mass. Gen. Laws
ch. 150E § 4 is an equally coercive application of power
delegated by the state. The coercion at issue—
requiring paid union membership in order to have a
voice and vote on the conditions of one’s public employment—is no different from the use of agency fees
to coerce non-union member public employees to relinquish their First Amendment speech and association
rights, which this Court struck down in Janus. See 138
S. Ct. at 2483. Instead of a statutorily mandated agency fee, the state has delegated authority to the respondent unions to deny non-union members a voice
and vote on the terms and conditions of employment.
Contrary to the SJC’s decision, this delegation of power
is state action and cannot stand. See Street, 367 U.S. at
749, 760 (finding questions are of the “utmost [constitutional] gravity” when “‘Congress has seen fit to clothe
the bargaining representative with powers comparable
to those possessed by a legislative body both to create
and restrict the rights of those whom it represents’”).
The cases cited by the SJC do not save its analysis.
The SJC improperly relied on a number of cases involving private sector unions. Pet. App. 65a (citing United
Steelworkers of Am. v. Sadlowski, 457 U.S. 102 (1982);
Kidwell v. Transportation Commc’ns Int’l Union, 946
F.2d 283 (4th Cir. 1991); Hovan v. United Bhd. of Carpenters & Joiners of Am., 704 F.2d 641 (1st Cir. 1983);
Turner v. Air Transp. Lodge 1984 of Int’l Ass’n of Machinists & Aerospace Workers, 590 F.2d 409 (2d Cir.
1978). Private sector organizing lacks the essential
19
nexus to matters of public concern found when public
employees negotiate with government employers.
The few public sector union cases the SJC did cite
are distinguishable and do not support the SJC’s analysis. See Hallinan v. Fraternal Order of Police of Chi.
Lodge No.7, 570 F.3d 811, 817-818 (7th Cir. 2009) (finding the decision to fire plaintiffs was based entirely on
the “Union’s internal act” and implying that state action might be present if “the Union … was … acting
with powers delegated to it by the City or state law”);
Jackson v. Temple Univ. of Commw. Sys. of Higher
Educ., 721 F.2d 931, 933 (3d Cir. 1983) (affirming the
district court’s finding that “the Union’s action could
not be ‘fairly attributed’ to the state” because the “Union was [not] acting under color of state law”); Messman v. Helmke, 133 F.3d 1042, 1044-1045 (7th Cir.
1998) (assessing state action where the union denied
firefighters the ability to volunteer for other departments under the authority of a collective bargaining
agreement and union constitution, not a statute, and
further assessing state action based on an argument
that the union and the city “conspired to deprive them
of their First Amendment rights”); Harmon v. Matarazzo, 162 F.3d 1147, 1147 (2d Cir. 1998) (finding the
union was not a state actor where the plaintiff claimed
that the union discriminated against him based on his
race when it declined to reimburse him for legal fees
incurred as a result of a failed drug test).
Where, as here, the state and union act to cut off
access to the benefits of public employment based on a
worker’s political objection to union membership, they
violate that worker’s First Amendment rights. A union
and a state government may not condition a benefit of
employment—be it a voice in the terms of that employment or access to representation in grievance mat-
20
ters that other employees may access—on membership
in, and financial support of, a union that engages in political activity that the public employee does not support. See, e.g., Rutan, 497 U.S. at 75 n.8 (“the First
Amendment … protects state employees … from … ‘an
act of retaliation … intended to punish her for exercising her free speech rights”’).
*
*
*
The Exclusive Representation Scheme at issue is
not tailored to be the least restrictive of associational
freedoms. In the wake of Janus, public employees are
now free from compelled subsidization of union speech
through agency fees. But they continue to be forced to
associate with state-designated unions via exclusive
representation. It is illogical that public employees
cannot be obligated to fund union advocacy with agency
fees but are still compelled to associate with unions to
facilitate that advocacy in order to have a voice in the
terms of their employment. If anything, compelled association through an exclusive representative is an
even more severe impingement on First Amendment
freedoms than the agency fees found to be unconstitutional in Janus.
21
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
MARK MATUSCHAK
Counsel of Record
TASHA BAHAL
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
mark.matuschak@wilmerhale.com
AUGUST 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.