Amicus Curiae Brief — Friedrichs v. Cal. Teachers Ass'n, 135 S. Ct. 2933 (2015) (No. 14-915)

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No. 14-915

In the Supreme Court of the United States

REBECCA FRIEDRICHS, ET AL., PETITIONERS

v.

CALIFORNIA TEACHERS ASSOCIATION, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENTS

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

M. PATRICIA SMITH EDWIN S. KNEEDLER

Solicitor of Labor Demity Solicitor General

EDWARD D. SIEGER JouN F. BASH uP

Senior Attorney Assistant to the Solicitor

ADAM R. PULVER General

ALEX VAN SCHAICK Department of Justice

Attorneys Washington, D.C. 20530-0001

Department of Labor SupremeCtBriefs@ usdoj.gov

Washington, D.C. 20210 (202) 514-2217

* , - &

Suis s _. =

OFFICE OF THES

«7

!

QUESTIONS PRESENTED

1. Whether Abood v. Detroit Board of Education,

431 U.S. 209 (1977), which held that public employers

may require their employees to pay a union selected

as their exclusive representative an “agency fee” to

cover a proportionate share of the union’s costs of

collective bargaining, contract administration, and

grievance adjustment, should be overruled.

2. Whether it violates the First Amendment for a

public employer to require employees to indicate an-

nually whether they object to paying the portion of an

agency fee that is not constitutionally chargeable.

(1D

TABLE OF CONTENTS

Page

ED BO iccccercancercnemnenmmns 1

iittala car prcrreennaannarintinctncesmenmmninennuimeans 1

III ccnsccsnscsundinnaggensennsenennsemnmnseueteesmesmmemenecte 8

Argument:

I. Abood was correctly decided and should

ee aeniestcctetinsetcneitstinnnsensennnnnminmmmnannnne 11

A. Conditions of public employment are

valid if they are reasonably related to

the government’s interest as an employer.......... 11

B. The line that Abood drew reflects a reason-

able accommodation of the government’s

interests as an employer with public em-

ployees’ First Amendment rights......................... 18

1. A public employer has a legitimate

interest in permitting agency fees

to solve the free-rider problem

inherent in exclusive representation ........... 19

2. Agency fees satisfy the standards

that this Court has applied to

evaluate conditions of public

a EE 26

C. Petitioners have identified no special

justification to overrule the Abood line

OF a cccecccereenesecenatingeasemmnsennsensenancseasnseenceses 30

II. The notice procedure permitted by California

law does not violate the First Amendment................. 34

I cccssnsnsteasencenicintninrsarcnicsillttnssiaeaniainiintanlbimesapsinescscsmnase 36

Appendix — Constitutional, statutory and regulatory

ED ctncncccenersenageccscssnnsncsncsnenmseemeneneecemeencsets la

(IIT)

IV

TABLE OF AUTHORITIES

Cases: Page

Abood v. Detroit Bd. of Educ., 431 U.S. 209

COPD ccarnsseenscassnennsnensssncsensenccsunmeensseseese passim

Air Line Pilots Ass'n v. Miller, 523 U.S. 866 (1998) a 20

American Ship Bldg. Co. v. NLRB, 380 U.S. 300

(1965)........ senhiplieeneennasiepesmenaiettitieninttenmneneemees 21

Board of County Come! rs v. Umbehr, 518 U.S.

i cenennerrequenseeccensemneasestntsinteememenennesmenenanmens 16

Board of Regents of Univ. of Wis. Sys. v.

Southworth, 529 U.S. 217 (2000) . yemenpemenementnens 31

Borough of Duryea v. Guarnieri, 131 S. Ct.

ae cocrnnrnsnsesnnssssscenesnnernepsemantensssesectimnesnnmnces 13, 18

Branti v. Finkel, 445 U.S. 507 (1980) ............ccccceceeseeeees 14, 28

Chicago Teachers Union, Local No. 1 v.

Hudson, 475 U.S. 292 (1986)..........cccccessesseceereeenees 31, 33, 35

City of Madison Joint Sch. Dist. No. 8 v.

Wisconsin Emp’t Relations Comm'n,

a ee ee ee rretetertcescctsntiterntncmnsemenseemeeenmnesen 27

City of Ontario v. Quon, 560 U.S. 746

(2010)....... soiesnsnediabeatnenenteesemntenmmmenmgmenee 15, 29

Communications Workers of Am. v. Beck,

487 U.S. 735 (1988)... 2, 3, 15, 20, 23, 33

Connick v. Myers, 461 U.S. 138 (1983)............c.cecceeseee 12, 13

Dickerson v. United States, 530 U.S. 428

SIE ccnittncatesvotennanscetisatuesdesatuentecesnaninenteeetemensssscmecsesncsents 31

Ellis v. Railway Clerks, 466 U.S. 435 (1984) sienenmmesnennginans 32

Elrod v. Burns, 427 U.S. 347 (1976) ........00+0++ .. 5, 15, 30

Engquist v. Oregon Dep't of Agric., 553 U.S. 591

Gi ccnccnsesetssesneantenenalinnmiiedbcemenmnemenmeremnee 14, 15

Fort Stewart Sch. v. Federal Labor Relations

Auth. , 495 U.S. 641 (1900).......0cccccccsecscccscsecccccsccsccsessecsecsee 30

Cases—Continued: Page

Garcetti v. Ceballos, 547 U.S. 410

CBG) .ncccccscscscecesccececrsnecocece 12, 13, 18, 28, 29, 30

Gilpin v. American Fed'n of State, County,

& Mun. Emps., AFL-CIO, 875 F.2d 1310

(7th Cir.), cert. denied, 493 U.S. 917 (1989) ..............000.- 20

Glickman v. Wileman Bros. & Elliott, Inc.,

Ee 32

Harris v. Quinn, 134 S. Ct. 2618 a 17, 26, 30, 32

International Ass'n of Machinists v. Street,

ET Te 3, 20, 33

Keller v. State Bar, 496 U.S. 1 (1990)................ 19, 20, 31, 33

Keyishian v. Board of Regents, 385 U.S. 589

Sainte lene nenta cham tees nratananatrsiitainee 5

Knoz v. Service Emps. Int'l Union, 132 S. Ct.

etait iaittiaaaetat iets iatiaerea inlet inane menanemanes 17, 34

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

ne passim

Locke v. Karass, 555 U.S. 207 (2009) ............ccccccsessceecseeeeees 16

McAuliffe v. Mayor, 29 N.E. 517 (Mass. 1892).................. 12

Metro-Goldwyn-Mayer Studios Inc. v. Grokster,

8 21

NASA v. Nelson, 562 U.S. 134 (2011)............cccccccesecseeeseesees 15

O'Connor v. Ortega, 480 U.S. 709 (1987) .........c.cceesceeees 15, 29

O’Hare Truck Serv., Inc. v. City of Northlake,

Tee 14, 18, 28

Ohio Bell Tel. Co. v. Public Utils. Comm’n,

LI) Te 36

Perry v. Sindermann, 408 U.S. 593 (1972) ..............0000+. 5, 14

Pickering v. Board of Educ. of Twp. High Sch. Dist.

A 13

Railway Employes’ Dep't v. Hanson, 351 U.S. 225

VI

Cases—Continued: Page

Rutan v. Republican Party, 497 U.S. 62 (1990)..... 12, 14, 18

United States v. United Foods, Inc., 533 U.S.

405 (2001) sestetnciensacecatiniienientsiatatmaignnmneemeetemmenceseenanetnats 32

Wainwright v. Sykes, 433 U.S 72 (1977) ene 34

Williamson County Reg Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985).............-cc-essesseeeseees 35

Constitution, statutes, regulations and rules:

U.S. Const.:

SE Ti laciahnscencsniaiinmmiennanimantinnismenmneened passim, la

II 1 scricrenapenienenniannieenisnsnmniattnmmenietinasenmuaguaietiin 13

BREE BF cence 15

National Labor Relations Act, ch. 372, 49 Stat. 449°

ESTE Ces ee 2

tia cneereannneiameneendeaniens 2

a ciinicreecnainnaammnmnnins ussheimanipies 3

Be eicceennenencesnneesesimenmmnecmanen 2, la

es Be itiicrnsnresenecnctenninpumemnennienieieens 3, 20, 2a

ane 2

29 U.S.C. 164(b)............. me sahinsiidenaialtlanaiainpesibi 3

Railway Labor Act, 45 U.S.C. 8 ease:

45 U.S.C. 162 (Eleventh) ................ccccccsssecsscessesess 3, 20, 3a

Taft-Hartley Act, ch. 120, 61 Stat. 136:

en 2

Cal. Gov’t Code (West 2010):

STITT this hadiaceespeaniaeiieinhaatemnenniannienatenneaseemnnneiainmiinatsionstion 6, 6a

Sasi cosinshintisseneniitaietinipennsinnamsenntiennemmnamenntinionemnel 6

§ 3543.2(a) (West Supp. 2015) ...........c.cccsesececeeeeneneseees 6, 6a

VII

Statutes, regulations and rules—Continued: Page

ESE ara eae ee eee 6, 10a

Siders iia clash tianaeiei iid 6, 10a

ce 6, lla

Cal. Code Regs. tit. 8 (2015):

STE RE ee OR 7, 13a

STITT isthe anesininliaiitiniidies 7, 15a

Fed. R. Civ. P.:

EE ae eee 35

Eee ee wee 35

TET EE Te a EE 35

Ec ee ae 35

Ee a eT ane 34

Miscellaneous:

H.R. Rep. No. 972, 74th Cong., Ist Sess. (1935)............. 1, 22

Casey Ichniowski & Jeffrey S. Zax, Right-to-Work

Laws, Free Riders, and Unionization in the Local

Public Sector, 9 J. Lab. Econ. 255 (July 1991) ................ 22

N.Y. Governor’s Comm. on Pub. Emp. Relations,

ict nteninineteiiieaistiniticanisnianinrinaanecmnenaee 4

Joseph E. Slater, Public Workers: Government

Employee Unions, the Law, and the State,

1900-1962 (2004)........ sslalineitibaiaibidianinbiaiineteneememmnatates 4

S. Rep. No. 105, 80th Cong., ist Sess. es 2

Richard H. Thaler & Cass R. Sunstein, Nudge:

Improving Decisions About Health, Wealth,

I etrcctninciccrincerenntcnensannttnnnsiacneninenecnsteas 35

In the Supreme Court of the Gnited States

No. 14-915

REBECCA FRIEDRICHS, ET AL., PETITIONERS

Vv.

CALIFORNIA TEACHERS ASSOCIATION, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The principal question in this case is whether

Abood v. Detroit Board of Education, 431 U.S. 209

(1977), should be overruled. Abood held that the First

Amendment permits public employers to require their

employees to pay a fee to a union selected as their

exclusive representative to cover the costs of collec-

tive bargaining, contract administration, and griev-

ance adjustment. Although the United States does

not require its employees to pay fees to their exclusive

representatives, the National Labor Relations Act and

the Railway Labor Act permit agency-fee arrange-

ments for covered employees.

STATEMENT

1. In the early twentieth century, the Nation expe-

rienced substantial “industrial unrest engendered

* * * by the denial of the right of employees to or-

(1)

2

ganize and by the refusal of employers to accept the

procedure of collective bargaining.” H.R. Rep. No.

972, 74th Cong., lst Sess. 6 (1935) (NLRA House

Report). In response to that problem, Congress en-

acted the National Labor Relations Act (NLRA) in

1935 to stabilize the Nation’s private-sector labor

relations. Ch. 372, 49 Stat. 449 (29 U.S.C. 151 et seq.).

Under the NLRA, a majority of employees in a unit

may select a union to serve as their exclusive repre-

sentative to bargain in good faith with the employer

“in respect to rates of pay, wages, hours of employ-

ment, or other conditions of employment.” 29 U.S.C.

159(a). The exclusive representative must fairly rep-

resent all employees in the unit. Communications

Workers of Am. v. Beck, 487 U.S. 735, 739, 743 (1988);

NLRA House Report 18-19. Congress determined

that this framework would “safeguard[] commerce

from injury, impairment, or interruption, and pro-

mote[] the flow of commerce by removing certain

recognized sources of industrial strife and unrest.” 29

U.S.C. 151.

The NLRA originally allowed employers to agree

to a “closed shop”—that is, to hire only union mem-

bers. 29 U.S.C. 158(3) (1940); see NLRA House Re-

port 17. In 1947, Congress amended the NLRA to

prohibit the closed shop. Taft-Hartley Act, ch. 120,

§ 101, 61 Stat. 140-141. But Congress was concerned

that with that change, “many employees sharing the

benefits of what unions are able to accomplish by

collective bargaining [would] refuse to pay their share

of the cost.” S. Rep. No. 105, 80th Cong., Ist Sess. 7

(1947); see Beck, 487 U.S. at 748-750 & n.5. To ad-

dress that “free rider” problem, Congress permitted

an employer and a union to enter into a “union shop”

3

agreement (if not prohibited by state law) requiring

all employees to join a union after being hired, but

barring their discharge for expulsion from the union

on a ground other than failing to pay dues. See 29

U.S.C. 158(a)(3), 164(b); see also Beck, 487 U.S. at 745.

And four years later, again recognizing the free-rider

problem, Congress amended the Railway Labor Act

(RLA) to authorize railroads to enter into such

agreements even where state law prohibits them. 45

U.S.C. 152 (Eleventh); see Beck, 487 U.S. at 750-751.

In Railway Employes’ Department v. Hanson, 351

U.S. 225 (1956), and International Ass’n of Machin-

ists v. Street, 367 U.S. 740 (1961), this Court consid-

ered First Amendment challenges to the RLA provi-

sion. In Hanson, the Court first held that RLA union-

shop agreements are imbued with governmental ac-

tion when they displace state-law prohibitions on such

agreements. 351 U.S. at 232. The Court then held

that “the requirement for financial support of the

collective-bargaining agency by all who receive the

benefits of its work” does not violate the First

Amendment. /d. at 238. Subsequently, in Street, the

Court construed the RLA provision to avoid a serious

constitutional question by holding that dues collected

from objecting employees may be used to “defray the

expenses of the negotiation or administration of col-

lective agreements, or the expenses entailed in the

adjustment of grievances and disputes,” but not “to

support candidates for public office, and advance polit-

ical programs.” 367 U.S. at 750, 768. The Court later

interpreted the NLRA to embody the same limitation.

Beck, 487 U.S. at 762-763.

2. The NLRA excludes public employees from cov-

erage. 29 U.S.C. 152(2). For decades after its enact-

4

ment, governments generally did not permit their

employees to bargain collectively. That prohibition

could produce volatile labor relations that threatened

disruptions of government services. See, eg., N.Y.

Governor’s Comm. on Pub. Emp. Relations, Final

Report 9 (1966); Att’y Gen. of Cal. Br. 2. But begin-

ning in 1959, many States adopted labor-relations

frameworks for public employees modeled on the

NLRA, including the right of workers to democrati-

cally select an exclusive representative, and the rep-

resentative’s corresponding duty to fairly represent

all employees in a unit. See Joseph E. Slater, Public

Workers: Government Employee Unions, the Law,

and the State, 1900-1962, at 71-72 (2004). Certain

States also authorized public employers to enter into

“agency shop” agreements requiring employees who

choose not to join the union selected as their exclusive

representative to pay the union “agency fees.”

In Abood v. Detroit Board of Education, 431 U.S.

209 (1977), public employees challenged an agency-

shop agreement on the ground that it violated the

“line of decisions holding that public employment

cannot be conditioned upon the surrender of First

Amendment rights.” Jd. at 226. Agreeing with the

challengers in part, the Court held that the First

Amendment permits public employers to authorize

fees only to the same extent as private-sector employ-

ers may do under the RLA and NLRA: to cover the

costs of the union’s activities “germane to its duties as

collective-bargaining representative,” including “col-

lective bargaining, contract administration, and griev-

ance adjustment,” but not to subsidize “the expression

of political views” or activities “on behalf of political

candidates, or toward the advancement of other ideo-

5

logical causes” unrelated to its bargaining duties. /d.

at 225-226, 235-236. That distinction, the Court held,

followed from the Court’s precedents addressing the

speech and expressive-association rights of public

employees. See id. at 234 (citing Elrod v. Burns, 427

U.S. 347 (1976); Perry v. Sindermann, 408 U.S. 593

(1972); and Keyishian v. Board of Regents, 385 U.S.

589 (1967)).

The Court later distilled from Abood and other

precedents a three-part standard for determining

which union expenditures are “chargeable” to non-

members. Lehnert v. Ferris Faculty Ass'n, 500 U.S.

507, 519 (1991). Chargeable activities “must (1) be

‘germane’ to collective-bargaining activity; (2) be

justified by the government’s vital policy interest in

labor peace and avoiding ‘free riders’; and (3) not

significantly add to the burdening of free speech that

is inherent in the allowance of an agency or union

shop.” Jbid. Four Justices would have defined “ger-

mane” activities to encompass only activities “reason-

ably necessary” to fulfillment of the union’s statutory

duties as a bargaining agent, see id. at 557 (Scalia, J.,

concurring in the judgment in part and dissenting in

part); id. at 564 (Kennedy, J., concurring in the judg-

ment in part and dissenting in part), while four other

Justices would have concluded that a somewhat

broader set of activities related “to the ratification or

implementation” of the union’s collective-bargaining

agreement are included in that term, id. at 520 (opin-

ion of Blackmun, J.). But eight Justices agreed, for

example, that lobbying expenses are not chargeable if

they do not relate exclusively to “the ratification or

implementation of [the relevant] collective-bargaining

agreement.” bid.

6

3. California permits its public-school employees to

bargain collectively over wages and other terms of

employment. Cal. Gov’t Code § 3540 (West 2010). As

under the NLRA, 2 majority of employees in a bar-

gaining unit may select an “employee organization” as

their exclusive representative, which then must fairly

represent every employee in the unit. Jd. §§ 3543.1(a),

3544, 3544.9. The scope of the exclusive representa-

tion includes “matters relating to wages, hours of

employment, and other terms and conditions of em-

ployment,” such as certain benefits, leave and transfer

policies, safety concerns, class-size issues, and evalua-

tion and grievance procedures. /d. § 3543.2(a)(1)

(West Supp. 2015).

California law provides that if an employee organi-

zation selected as an exclusive representative furnish-

es notice to a public employer, each employee within a

bargaining unit who has not joined the employee or-

ganization must, “as a condition of continued employ-

ment, * * * pay [a] fair share service fee” (7.¢., an

agency fee), unless a majority of employees vote to

rescind the fee. Cal. Gov’t Code § 3546(a) and (d)

(West 2010). The fee “shall cover the cost of negotia-

tion, contract administration, and other activities of

the employee organization that are germane to its

functions as the exclusive bargaining representative.”

Id. § 3546(a). Although the fee may cover other ex-

penses, nonmember employees “have the right * * *

to receive a rebate or fee reduction upon request, of

that portion of their fee that is not devoted to the cost

of negotiations, contract administration, and other

activities of the employee organization that are ger-

mane to its function as the exclusive bargaining repre-

sentative,” ibid. An exclusive representative must

7

furnish annual notice to each nonmember of the

amount of the agency fee, the percentage attributable

to chargeable expenses, and the procedure for object-

ing to payment of the nonchargeable portion or chal-

lenging the union’s calculations. Cal. Code Regs.

tit. 8, § 32992(a) (2015). The objection procedure

requires that employees have at least 30 days to file

written objections to paying the nonchargeable por-

tion. Id. § 32993.

4. Petitioners include California public-school

teachers who have elected in the past not to pay the

nonchargeable portion of the agency fees. Pet. App.

46a-5la. They object to many of the unions’ public-

policy positions, as well as to positions taken in collec-

tive bargaining. /d. at 46a-49a. Petitioners filed suit

against the unions, the unions’ state and national

affiliates, and the executive officers of their school

districts. Jd. at 4la, 52a-55a. They allege that the

agency-fee requirement violates the First Amendment

both by requiring nonunion employees to pay even the

chargeable portion of the fees and by requiring nonun-

ion employees to object annually if they decide not to

pay the nonchargeable portion. /d. at 69a-73a; see

J.A. 663. Respondent State of California intervened

to defend the constitutionality of its laws. Pet. App.

4a.

Petitioners moved for judgment to be entered

against them on the pleadings, acknowledging that

their claims were foreclosed by controlling precedent.

Pet. App. 7a. The district court granted the motion.

Id. at 8a. On petitioners’ motion, the court of appeals

summarily affirmed. /d. at la-2a.

8

SUMMARY OF ARGUMENT

I. This Court held in Abood v. Detroit Board of

Education, 431 U.S. 209 (1977), that a public employer

may require its employees to pay fees to an exclusive

representative to cover a proportionate share of the

costs of collective bargaining, contract administration,

and grievance adjustment. The Court should reaffirm

that holcing because it is correct.

A. Petitioners’ attack on Abood rests on a funda-

mental legal error: that conditions of public employ-

ment that advance a public agency’s interest as an

employer are subject to “exacting” scrutiny under the

First Amendment. This Court has never so held. To

the contrary, in an array of contexts, including the

political-affiliation cases on which petitioners rely, this

Court has afforded public employers broad leeway to

establish “reasonable” or “appropriate” conditions

that advance the government’s interest as an employ-

er, while remaining vigilant to ensure that the gov-

ernment does not leverage the employment relation-

ship to stifle employees’ broader expressive activities

as citizens. Petitioners’ attempt to demolish this

Court’s settled framework for analyzing conditions of

public employment would astonish the Founding gen-

eration and would stamp out the State-by-State varia-

tion in public-employment structures that has been

the hallmark of this Court’s First Amendment juris-

prudence for decades.

B. Considered in light of the principles that this

Court invariably employs to evaluate conditions on

public employment, Abood reached the right result,

for the right reasons. The time-tested collective-

bargaining framework instituted by the NLRA relies

crucially on the designation of a single, democratically

9

elected employee representative that is duty-bound to

fairly represent all employees in a unit. As Congress

has determined, and as this Court has explained on

numerous occasions, that framework inevitably pro-

duces a serious “free rider” problem—a problem that

petitioners fundamentally misunderstand. The prob-

lem is not merely that employees who object to the

union’s bargaining positions will “free ride” on the

union’s efforts. Rather, even the employees who favor

the union’s positions will have no incentive to fund the

union if they can reap the benefits of the union’s work

without spending a dime.

The consequence is that those who remain mem-

bers of the union—based on their own associational

choice—are statutorily obligated to subsidize the free

riders for the union’s work on their behalf. Abood

correctly held that public employers may reasonably

conclude that, by eliminating the moral hazard inher-

ent in exclusive representation, agency-shop agree-

ments significantly promote their vital interest in

productive collective-bargaining relationships, amelio-

rate the workplace resentments that could arise if

union members are required to shoulder the costs of

attaining. benefits for other employees, and foster a

productive and effective public workforce.

Abood alse correctly recognized that the burden on

the expressive activities of public employees who truly

object to the union’s bargaining positions—as opposed

to employees who simply want to free ride—is not so

substantial as to render the condition of employment

unreasonable or inappropriate. No public employee is

prohibited from speaking out against the union and its

positions in the workplace or in the public arena. And

Abood ensures that mandatory fees can never support

10

political campaigns, legislative lobbying outside of the

ratification or funding of a collective-bargaining

agreement, or other classically ideological activities—

i.e., those activities that have no connection to the

government’s concrete interest as an employer. As a

result, the Abood rule places both public employers

and public employees in the same position as their

private-sector counterparts who operate under

agency-shop agreements.

C. Petitioners have identified no special justifica-

tion to discard a precedent that has governed public-

sector labor relations for nearly four decades, has

been repeatedly applied by this Court, and has helped

form the foundation for other First Amendment doc-

trines. Overruling the Abood line of cases would dis-

rupt the many state and local government agencies

that have structured their labor relations in reliance

on this Court’s constitutional pronouncements.

II. Requiring public employees to indicate their

objection to paying nonchargeable expenses on an

annual form—a procedure this Court has repeatedly

approved—does not violate the First Amendment.

Contrary to petitioners’ unsupported supposition, it is

often true that an individual must object to invoke a

constitutional right. An employee who is unwilling to

exert even the minimal effort necessary to check a box

and mail in a form suffers no cognizable First

Amendment harm.

11

ARGUMENT

I. ABOOD WAS CORRECTLY DECIDED AND SHOULD

BE REAFFIRMED

This Court held in Abood v. Detroit Board of Edu-

cation, 431 U.S. 209 (1977), that a public employer

may require its employees to pay a proportionate

share of an exclusive representative’s costs of collec-

tive bargaining, contract administration, and griev-

ance adjustment, but that it may not require employ-

ees to subsidize the representative’s political or ideo-

logical activities. That holding should be reaffirmed

because it is correct.

A. Conditions Of Public Employment Are Valid If They

Are Reasonably Related To The Government’s Interest

As An Employer

Petitioners’ attack on Abood rests on a fundamen-

tally mistaken premise: that a condition of public

employment that advances the government’s legiti-

mate interests as an employer, rather than as a sov-

ereign or regulator, is subject to “exacting” scrutiny

under the First Amendment. See Pet. Br. 10, 15-20.

That view has no support in the original understand-

ing of the First Amendment, and it conflicts with this

Court’s long line of precedents addressing the rights

of public employees. Far from the “jurisprudential

outlier” that petitioners portray (Br. 2), Abood fits

comfortably within the broader constellation of consti-

tutional precedents governing conditions of public

employment. Indeed, what petitioners seek is an

exception to the general rule.

1. The First Amendment proscribes laws “abridg-

ing the freedom of speech.” A condition on public

employment related to an employee’s expressive

12

activities was not originally understood to be an

“abridg{ment)” of the freedom of speech at all. For

over a century and a half after the First Amendment

was adopted, “the unchallenged dogma was that a

public employee had no right to object to conditions

placed upon the terms of employment—including

those which restricted the exercise of constitutional

rights.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)

(quoting Connick v. Myers, 461 U.S. 138, 143 (1983)).

As Justice Holmes famously put it, a policeman “may

have a constitutional right to talk politics, but he has

no constitutional right to be a policeman.” McAuliffe

v. Mayor, 29 N.E. 517, 517 (Mass. 1892). Thus, for

example, the requirement that an employee be a

member of a particular political party “was, without

any thought that it could be unconstitutional, a basis

for government employment from the earliest days of

the Republic.” Rutan v. Republican Party, 497 U.S.

62, 96 (1990) (Scalia, J., dissenting).

This Court departed from that understanding of

the First Amendment “in the 1950’s and early 1960's,”

in cases involving requirements that “public employ-

ees * * * swear oaths of loyalty to the State and

reveal the groups with which they associated.” Con-

nick, 461 U.S. at 144. The Court in those cases sought

to address the emerging fear that the government

could “leverage the employment relationship to re-

strict, incidentally or intentionally, the liberties em-

ployees enjoy in their capacities as private citizens.”

Garcetti, 547 U.S. at 419. The Court has therefore

drawn a sharp distinction between conditions of public

employment reflecting the sorts of interests and con-

cerns ordinarily held by private-sector employers and

employees, for which public employers receive broad

13

deference, and conditions by which a public employer

might exploit the employment relationship to curtail

the exercise of public employees’ constitutional rights

as private citizens, outside the employment relation-

ship.

2. That basic distinction forms the foundation for a

number of well-settled constitutional rules.

a. In the line of cases beginning with Pickering v.

Board of Education of Township High School District

205, 391 U.S. 563 (1968), this Court has set out a

framework for analyzing claims that a public employer

unconstitutionally penalized an employee for her ex-

pressive activities. Under that framework, if an em-

ployee did not speak “as a citizen on a matter of public

concern,” the “employee has no First Amendment

cause of action” at all. Garcetti, 547 U.S. at 418. But

as the Court explained in Garcetti, even if the speech

related to a matter of public concern, the employee’s

claim fails if “the relevant government entity had an

adequate justification for treating the employee dif-

ferently from any other member of the. general pub-

lic.” Ibid. (emphasis added); see Borough of Duryea

v. Guarnieri, 1381 S. Ct. 2488, 2500 (2011) (applying

same framework to Petition Clause claim).

In applying Pickering’s adequate-justification

standard, a court may not impose “an unduly onerous

burden on the State.” Connick, 461 U.S. at 149. Ra-

ther, it must “balance * * * the interests of the [em-

ployee], as a citizen, in commenting upon matters of

public concern and the interest of the State, as an

employer, in promoting the efficiency »f the public

services it performs through its employees.” Picker-

ing, 391 U.S. at 568. That framework is necessary

because “(t]he government’s interest in achieving its

14

goals as effectively and efficiently as possible is ele-

vated from a relatively subordinate interest when it

acts as sovereign to a significant one when it acts as

employer.” Engquist v. Oregon Dep’t of Agric., 553

U.S. 591, 598 (2008) (citation omitted).

b. This Court has articulated a parallel set of prin-

ciples for assessing claims that a public employee

suffered adverse employment consequences on ac-

count of membership in a political party. In those

cases, this Court held that, while party affiliation in

many circumstances would relate only to an employ-

ee’s role as a private citizen, it may be considered in

making employment decisions if the government “can

demonstrate that party affiliation is an appropriate

requirement for the effective performance of the pub-

lic office involved,” as with many policymaking jobs.

Branti v. Finkel, 445 U.S. 507, 518 (1980) (emphasis

added); see Rutan, 497 U.S. at 64-65, 70-71 nn.4-5.

That rule embodies the same solicitude for the gov-

ernment’s interests as an employer as does the Pick-

ering standard. Indeed, the political-affiliation cases

expressly relied on a Pickering case, Perry v. Sin-

dermann, 408 U.S. 593, 597-598 (1972). See O’Hare

Truck Serv., Inc. v. City of Northlake, 518 U.S. 712,

718 (1996); Branti, 445 U.S. at 514-516; see also Elrod

v. Burns, 427 U.S. 347, 375 (1976) (Stewart, J., con-

curring in the judgment). And in its most recent deci-

sion in this area, the Court explained that the ultimate

inquiry is simply “whether the affiliation requirement

is a reasonable one.” O’Hare, 518 U.S. at 719; ef.

Rutan, 497 U.S. at 101-102 (Scalia, J., dissenting).

Petitioners’ insistence (Br. 18-19) that “exacting scru-

tiny” applies to all political-affiliation employment

requirements—which is apparently drawn from Jus-

15

tice Brennan’s opinion for three Justices in Elrod, 427

U.S. at 362—is therefore incorrect.

c. This Court has also afforded public employers a

broad range of discretion to advance legitimate

employment-related interests with respect to other

constitutional rights. In the Fourth Amendment con-

text, for example, the Court has held that a public

employer may conduct a search of its employees’

employer-issued pagers without a warrant so long as

the search is “motivated by a legitimate work-related

purpose” and is “not excessive in scope.” City of On-

tario v. Quon, 560 U.S. 746, 764 (2010). The Court

further concluded that such a search by a public em-

ployer “would be regarded as reasonable and normal

in the private-employer context” and therefore would

be permissible under the approach of Justice Scalia’s

opinion concurring in the judgment in O'Connor v.

Ortega, 480 U.S. 709, 732 (1987). See 560 U.S. at 764-

765 (citation and internal quotation marks omitted).

The Court has also held that, in light of the “unique

considerations applicable when the government acts

as employer as opposed to sovereign,” the “class-of-

one theory of equal protection does not apply in the

public employment context.” Engquist, 553 U.S. at

598. And most recently, the Court held that a federal-

government background-check form does not violate

any assumed right to informational privacy, given the

government’s “much freer hand in dealing with citizen

employees than * * * when it brings its sovereign

power to bear on citizens at large.” NASA v. Nelson,

562 U.S. 134, 138, 148-149 (2011) (citations and inter-

nal quotation marks omitted).

3. Abood reflects the application of these general

constitutional principles to the specific context of

16

agency fees required “as a condition of employment.”

421 U.S. at 211. That is clear on the face of the opin-

ion. The primary First Amendment argument that

Abood considered was that public-sector agency fees

violated the “line of decisions holding that public em-

ployment cannot be conditioned upon the surrender of

First Amendment rights,” id. at 226, and the chal-

lengers had expressly relied on Pickering and Sin-

dermann, see Appellants Br. 35, Abood, supra (No.

75-1153). The Court drew the central distinction be-

tween activities germane to collective bargaining

within the employment relationship and political or

ideological activities from its public-employee cases,

citing Sindermann and Elrod. 431 U.S. at 233-235.

This Court has thus long grouped the Abood rule with

other First Amendment doctrines protecting govern-

ment workers from “unconstitutional conditions” of

employment, including the rules of Pickering and

Branti. See Board of County Comm’rs v. Umbehr,

518 U.S. 668, 674-675 (1996).

In the course of its analysis, Abood found that

“{tJhe same governmental interests recognized in

* * * Hanson and Street” supporting RLA fee ar-

rangements presumptively supported public-sector

agency-fee arrangements. 431 U.S. at 225. That was

because the RLA decisions rested on the premise that

an RLA union-shop agreement is also imbued with

governmental action, id. at 226-227 & n.23, and be-

cause the Court concluded that public employees do

not have weightier First Amendment interests than

private employees in not being required to pay their

fair share of their exclusive representative’s expenses,

id. at 229-230. See Locke v. Karass, 555 U.S. 207, 213-

214 (2009); see also Lehnert v. Ferris Faculty Ass’n,

17

500 U.S. 507, 516 (1991). Differences in collective

bargaining between the public and private sectors, the

Court explained, result from the external incentives

and political accountability of the public employer, not

from any differences regarding the public employee,

who remains free as a citizen to express his disagree-

ment with the union’s actions. See Abood, 431 U.S. at

230-232.

In any event, even if the Court were to conclude

that Abood’s analysis was less than pellucid, petition-

ers have identified no good reason as an original mat-

ter to review agency fees differently from any other

condition of public employment. Petitioners rely on

the Court’s application of a higher standard of scruti-

ny in Knox v. Service Employees International Un-

ion, 182 S. Ct. 2277 (2012), and Harris v. Quinn, 134

S. Ct. 2618 (2014). Those decisions, however, involved

fees that did not advance the government’s interest as

an employer—a one-time exaction to fund a “union’s

political and ideological activities,” Knox, 132 S. Ct. at

2284, and fees imposed on individuals that the Court

held not to be full-fledged public employees at all,

which would have required “a very significant expan-

sion of Abood” to uphold, Harris, 134 S. Ct. at 2637.

In Harris, the Court, in discussing Pickering, held

only that, given the particular “features of the [state-

law] scheme” governing the home health workers in

that case, under which the :nion had a “very restrict-

ed role,” the governmental interests ordinarily justify-

ing agency fees were not sufficiently implicated to

sustain the fees. 134 S. Ct. at 2640, 2643. In contrast,

for true public employees, positions taken by their

exclusive representative in the course of agency-fee-

supported contract negotiation and administration

18

within the employment relationship are directly anal-

ogous to other employee expression within the em-

ployment relationship, which under Pickering and

Garcetti is subject to reasonable regulation.

Accordingly, because “the Constitution’s prohibi-

tion against laws ‘abridging the freedom of speech’

does not apply to laws enacted in the government’s

capacity as employer in the same way that it does to

laws enacted in the government’s capacity as regula-

tor of private conduct,” Rutan, 497 U.S. at 95 (Scalia,

J., dissenting), petitioners’ central premise that “ex-

acting” scrutiny applies to all agency fees, even those

that fund only activities that advance the govern-

ment’s bona fide interests as an employer, is out of

step with the original understanding of the First

Amendment and this Court’s decisions from Pickering

to O’Hare to Guarnieri. This Court has always coun-

seled a “cautious and restrained approach” to review-

ing conditions of public employment, Guarnieri, 131

S. Ct. at 2495, 2500, asking whether the public em-

ployer had an “adequate justification” for the chal-

lenged action, Garcetti, 547 U.S. at 418, or whether a

job requirement was “appropriate,” Branti, 445 U.S.

at 518, or “reasonable,” O’Hare, 518 U.S. at 719. The

types of agency fees approved in Abood plainly satisfy

those standards.

B. The Line That Abood Drew Reflects A Reasonable

Accommodation Of The Government’s Interests As An

Employer With Public Employees’ First Amendment

Rights

Abood reached the right First Amendment result,

for the right reasons. Like their private-sector coun-

terparts, public employers can reasonably determine

that agency fees covering the cost of matters germane

19

to collective bargaining, contract administration, and

grievance adjustment advance the “vital [governmen-

tal] interests in preserving industrial peace,” Keller v.

State Bar, 496 U.S. 1, 13 (1990), by ensuring a robust

and fairly representative counterparty in bargaining

over the terms of employment and ensuring compli-

ance with agreed-upon terms, avoiding the resentment

that could arise if some employees were required to

subsidize benefits for other employees, and fostering a

productive and effective public workforce.

1. A public employer has a legitimate interest in

permitting agency fees to solve the free-rider

problem inherent in exclusive representation

a. Like private-sector employers, a public employ-

er has a legitimate—indeed, “vital”—interest in good

labor relations. Keller, 496 U.S. at 13. If employees

lack an agreed-upon outlet for their preferences, con-

cerns, and grievances about the terms and conditions

of employment, public agencies could experience crip-

pling disruptions that would bring government ser-

vices to a halt and could find themselves unable to

attract and retain the most talented workers.

The modern labor-relations framework that Con-

gress instituted in the NLRA—an elected exclusive

representative with a duty to fairly represent all

employees—promotes that interest. By allowing

employees to express their views through a single,

democratically selected representative that can serve

as an effective bargaining counterparty, public em-

ployers can achieve more stable labor relations and a

more satisfied and productive workforce.

Congress, however, has found that exclusive repre-

sentation can give rise to a serious free-rider problem,

because employees will realize that they can attain the

20

benefits of exclusive representation without paying for

them. See pp. 2-3, supra. This Court has on numer-

ous occasions recognized the validity of Congress’s

judgment in that respect. See, e.g., Air Line Pilots

Ass’n v. Miller, 523 U.S. 866, 872-873 (1998); Keller,

496 U.S. at 12; Abood, 431 U.S. at 224; International

Ass'n of Machinists v. Street, 367 U.S. 740, 765-766

(1961). And Congress, like many States, further de-

termined that requiring each employee in a bargain-

ing unit to defray a representative’s costs is one ap-

propriate means of solving that problem. 29 U.S.C.

158(a)(3); 45 U.S.C. 152 (Eleventh); see Communica-

tions Workers of Am. v. Beck, 487 U.S. 735, 755-756

(1988).

Throughout their brief, petitioners mischaracterize

the nature of the free-rider problem. The free riders

that this Court’s decisions have discussed are not only

those employees “who oppose union policies” advanced

in collective bargaining and who are therefore in some

sense “compelled by the government to ‘free ride’ on

unions.” Pet. Br. 34, 36-37 (emphasis omitted). The

free-rider problem also, and more broadly, stems from

“the employee who is happy to be represented by a

union but won’t pay any more for that representation

than he is forced to,” and who therefore “wants mere-

ly to shift as much of the cost of representation as

possible to other workers, i.e., union members.” Gil-

pin v. American Fed’n of State, County, & Mun.

Emps., AFL-CIO, 875 F.2d 1310, 1313 (7th Cir.) (Pos-

ner, J.) (emphasis added), cert. denied, 493 U.S. 917

(1989). But once a fair-representation requirement is

imposed, it is impossible to tell who is a true objector

and who just wants a free ride.

21

Ignoring Congress’s express judgment to the con-

trary, petitioners declare it “implausible” (Br. 33) that

many employees who favor the union’s bargaining

positions would not “voluntarily” support the union

financially. It is undoubtedly true that many employ-

ees, out of affinity with the union’s overall goals or for

other reasons, will join the union even without the

agency-fee requirement. And the rates of voluntary

union membership may vary from State to State and

from profession to profession. But in no other context

could it be defensibly maintained that those who bene-

fit from something available for free—be it public

infrastructure, police protection, or music downloads

from the Internet—must invariably be counted on to

voluntarily pay for it. Cf. Metro-Goldwyn-Mayer

Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928-929

(2005).

b. For at least two reasons, a public agency has a

legitimate interest, as an employer, in solving the

free-rider problem through agency fees. See Abood,

431 U.S. at 224-226.

First, the traditional collective-bargaining frame-

work requires vigorous, “eoequal” advocates on both

sides. American Ship Bldg. Co. v. NLRB, 380 U.S.

300, 317 (1965). But depending on the composition

and preferences of the workforce and what other

services or benefits a union is able to offer members,

the free-rider problem can undermine the effective-

ness of the employee representative. Bargaining,

after all, is not a matter of just showing up to a nego-

tiation session. As Abood explained, “[tJhe tasks of

negotiating and administering a collective-bargaining

agreement and representing the interests of employ-

ees in settling disputes and processing grievances are

22

continuing and difficult ones” that can require “(t]he

services of lawyers, expert negotiators, economists,

and a research staff, as well as general administrative

personnel.” 431 U.S. at 221.

Petitioners’ assert (Br. 30) that the government’s

only interest is ensuring that the elected union

does not “go bankrupt.” But the whole idea of the

collective-bargaining framework—the basic reason

that it helps resolve the most intractable and difficult

problems that confront a workplace—is that employee

interests are soundly represented at the bargaining

table and in other settings within the employment

relationship. An exclusive representative that is hov-

ering just above bankruptcy may be hard-pressed to

fulfill its responsibilities effectively.

Second, a public employer can reasonably conclude

that requiring union members to bear the potentially

significant costs of a bargaining agent’s efforts on

behalf of other employees—even those who welcome

free union representation—is fundamentally unfair

because it effectively penalizes union members. See

Abood, 431 U.S. at 221-222. Absent agency fees for

collective-bargaining expenses, an exclusive repre-

sentative may be forced to “increase the net price that

union members must pay in order to obtain union

services for themselves,” since those members must

subsidize the cost of bargaining, contract administra-

tion, and grievance adjustment for nonmembers.

Casey Ichniowski & Jeffrey S. Zax, Right-to-Work

Laws, Free Riders, and Unionization in the Local

Public Sector, 9 J. Lab. Econ. 255, 257 (July 1991)

(emphasis added). In effect, union members end up

with lower take-home pay than nonmembers based

solely on their own choice to affiliate with a union. It

23

is perfectly reasonable for a public employer to de-

termine that such unequal distribution of costs will

spawn resentment that will hamper the fulfillment of

its public mission. See Beck, 487 U.S. at 749-750; cf.

NLRA House Report 18 (“{I}f better terms were giv-

en to nonmembers, this would give rise to bitterness

and strife.”).

c. Petitioners liken (Br. 34) the endemic free-rider

problem in collective bargaining to the moral hazard

created by any organization that advocates policies

favored by nonmembers. But as Justice Scalia has

explained, that analogy overlooks “[w)hat is distinc-

tive * * * about the ‘free riders’ who are nonunion

members of the union’s own bargaining unit.”

Lehnert, 500 U.S. at 556 (concurring in the judgment

in part and dissenting in part). “[T]hey are free riders

whom the law requires the union to carry—indeed,

requires the union to go out of its way to benefit, even

at the expense of its other interests.” /bid. (emphasis

omitted); accord id. at 562-564 (Kennedy, J., concur-

ring in the judgment in part and dissenting in part);

see Abood, 431 U.S. at 224. Put another way, the

public employer refuses to bargain at all unless it can

bargain with a representative statutorily bound to

represent—and reach an agreement on behalf of—all

employees.

That policy of exclusive representation serves the

government’s basic interest as an employer in bar-

gaining with a single employee representative. See

pp. 19-23, supra. But it also gives rise to the free-

rider problem that could, paradoxically, render the

elected union a less effective bargaining counterparty

and foster resentment among employees forced to

bear the costs of supporting benefits for others. It is

24

for that reason—to ensure that collective bargaining

achieves its basic purposes—that when “the state

imposes upon the union a duty to deliver services, it

may permit the union to demand reimbursement for

them” from nonmembers. Lehnert, 500 U.S. at 556

(Scalia, J., concurring in the judgment in part and

dissenting in part).

Petitioners disagree (Br. 37-44) with that analysis

of the governmental interests justifying agency fees.

But their three critiques do not hold up.

Petitioners first argue (Br. 37-38) that “unions vol-

untarily assume the nondiscrimination ‘duty’ in order

to obtain the extraordinary power of exclusive repre-

sentation.” That misses the point. Although it is

trivially true that no union is required to step forward

to serve as the exclusive representative, the premise

of American labor law is that employers and employ-

ees alike have a vital interest in the benefits that flow

from an exclusive representative that fairly repre-

sents all employees. Once employees democratically

select a union, an employer can reasonably conclude

that it is inefficient and unfair to foist the entire cost

of the union’s execution of its statutory duties on

those employees who have chosen to join the union.

Petitioners also argue (Br. 41) that the duty to fair-

ly represent all employees “does not impose any

meaningful obligation on unions,” even though half-a-

breath later they concede that an exclusive repre-

sentative is statutorily barred “from advocating wage-

and-benefit systems that facially favor union mem-

bers.” Their argument seems to be that most exclu-

sive representatives do not actually engage in such

preferential advocacy. But that is because it has been

prohibited in the private sector since at least 1935

25

(and even so unions have at times violated that prohi-

bition, see Att’y Gen. of Cal. Br. 18 (citing cases)), and

because the main benefit of the system, from the per-

spective of any employer, public or private, is the

ability to bargain with a single representative of all

employees. That the duty of fair representation is

uniformly imposed does not change the fact that the

union is statutorily required to expend resources on

behalf of nonmembers, which justifies agency fees.

Finally, petitioners advert (Br. 43-44) to the disa-

greement among the Justices in Lehnert over whether

the governmental interests supporting agency fees

justify only fees for activities that are “reasonably

necessary” to the discharge of the union’s statutory

duties. 500 U.S. at 556-558 (Scalia, J., concurring in

the judgment in part and dissenting in part). But

reaffirming that the governmental interest supporting

agency fees arises from the exclusive representative’s

statutorily required “duty of fair representation to all

employees in the unit,” Abood, 431 U.S. at 224, does

not require the Court to revisit that separate, later

debate. This case was decided on the pleadings with-

out evidence of the unions’ expenditures or an analysis

of whether they are chargeable to nonmembers under

California law. The possibility that in a future case

the Court might consider refining the “germaneness”

requirement says nothing about whether Abood’s

analysis of the governmental interests permitting

agency fees for at least some contract-negotiation and

administration activities was correct.

26

2. Agency fees satisfy the standards that this Court

has applied to evaluate conditions of public

employment

a. As discussed, this Court’s public-employment

cases have asked whether a requirement is “reasona-

ble,” “adequate,” or “appropriate” in achieving the

government’s interests as an employer. Agency fees

that finance the union’s activities germane to collec-

tive bargaining—defined, at minimum, to encompass

the union’s execution of its statutory duties on behalf

of all employees—satisfy those standards, because

they reasonably advance the government’s interest in

solving the free-rider problem. Although agency fees

and exclusive representation may not be “inextricably

linked,” Harris, 134 S. Ct. at 2640, agency fees are an

effective means of eliminating the intrinsic moral

hazard of exclusive representation.

As Abood acknowledged, those fees do represent a

limited “impingement” on the expressive-association

rights of those employees who truly object to the

union’s bargaining positions (as opposed to those who

only want a free ride). 431 U.S. at 225. But that im-

pingement is not so substantial as to render the condi-

tion on public employment invalid. The fees simply

support the efforts of the exclusive representative

within the special channels in the employment setting

for contract negotiation, contract administration, and

grievance resolution—transactional and workplace

activities that typically are quite different from the

sort of expression in which public employees might

engage as citizens. See Lehnert, 500 U.S. at 551 n.1

(Scalia, J., concurring in the judgment in part and

dissenting in part) (proceeding “on the assumption

* * * that all forced contributions to a union impli-

27

cate the First Amendment, whether or not the activi-

ties to which the contributions are directed are com-

municative”). Indeed, communications to the employ-

er concerning such matters by an individual employee,

in his capacity as an employee, would not, under this

Court’s precedents, be subject to heightened First

Amendment protection. The result should be no dif-

ferent for such communications on behalf of all em-

ployees in the unit by their exclusive representative.

Mandatory agency fees, moreover, do not force an

employee to affiliate or associate with the union in any

meaningfully expressive sense. No reasonable person

would conclude, upon learning that a teacher had paid

mandatory agency fees, but had refused to support a

union’s political or ideological activities, that the

teacher supported the union. If anything, he would

draw the opposite inference.

Nor is a different conclusion called for by the fact

that from the general public’s perspective, the deci-

sions the employer might make in the collective-

bargaining process could have significant fiscal and

public-policy effects or political implications. It is

from that distinct perspective that the issues involved

are matters of public concern. But the payment of

agency fees by individuals in their capacities as public

employees to their representative in the employment

context does not prevent those individuals, in their

capacities as citizens, from “petition[ing] their neigh-

bors and government in opposition to the union which

represents them in the workplace,” Lehnert, 500 U.S.

at 521 (opinion of Blackmun, J.), joining anti-union

organizations, or lobbying their elected representa-

tives. See Abood, 431 U.S. at 230; City of Madison

28

Joint Sch. Dist. No. 8 v. Wisconsin Emp'’t Relations

Comm ’n, 429 U.S. 167, 175-176 & n.10 (1976).

b. Petitioners contend (Br. 20-29, 33) that Abood’s

basic line is illusory because “there is no difference

between collective-bargaining advocacy and other

ideological advocacy.” That is not a realistic view of

the world. The typical worker would surely perceive a

significant difference between, on the one hand, con-

tributing to a union’s legal and research costs to de-

velop a collective-bargaining proposal for his own unit,

and, on the other hand, making a political contribution

to a union-favored candidate for governor.

But in any event, petitioners’ argument misses the

point not only of Abood, but also of this Court’s broad-

er employment-conditions jurisprudence, in such

decisions as Pickering, Branti, Garcetti, and Guar-

niert: The First Amendment generally permits condi-

tions of employment that impact employees’ expres-

sive interests within the context of the employment

relationship, so long as they bear a reasonable or

appropriate relationship to the government’s interest

as an employer. That is why, for example, an employ-

ee can be penalized even for speech on matters of

public concern when the public employer has an “ade-

quate” employment-related justification. Garcetti,

547 U.S. at 418. It is likewise why political affiliation

can be a job requirement when such a requirement is

“reasonable” or “appropriate.” O’Hare, 518 U.S. at

719; Branti, 445 U.S. at 518.

The line drawn by Abood reflects that same basic

reasonableness standard. The government qua em-

ployer has no interest in the union’s efforts to elect

particular candidates to a state board or run a pro-

union advertising campaign. See Lehnert, 500 U.S. at

29

520-521 (opinion of Blackmun, J.). But it does have a

vital interest in a sufficiently funded, robust bargain-

ing counterparty that, in accord with its statutory

duty, fairly represents all employees in a bargaining

unit, and provides an effective voice for their con-

cerns, preferences, and grievances.

That fundamental distinction also affects the mag-

nitude of the impingement on employees’ associational

rights. When public employees pay fees to cover the

costs of collective bargaining, they are required to do

no more than what “would be ‘regarded as reasonable

and normal in the private-employer context.’” Quon,

560 U.S. at 764-765 (quoting O’Connor, 480 U.S. at 732

(Scalia, J., concurring in the judgment)). But if public

employees were required to pay fees to cover a union’s

political and ideological activities unrelated to its

statutory duties, that would go beyond what private

employers may do under the NLRA or RLA, and it

would raise the specter that the purpose of the fees is

to “leverage the employment relationship” to bolster

political allies and infringe public employees’ freedom

of expression and association as private citizens.

Garcetti, 547 U.S. at 419. Abood thus prevents pre-

cisely the same threat to the First Amendment as this

Court’s other public-employee decisions.

ce. Our federalist system leaves room for different

public employers with different workforce composi-

tions, different histories, different needs, and differ-

ent values to reach different conclusions about how

best to ensure an effective bargaining counterparty

and a harmonious workplace. Some States do not

allow public employees to collectively bargain at all;

others allow collective bargaining but not agency fees;

and over 20 States have authorized agency fees for

30

some or all employees. See Harris, 134 S. Ct. at 2652

(Kagan, J., dissenting); Union Resps. Br. 4-5, 32. The

federal government does not allow agency fees, but it

also bars collective bargaining over wages for most

employees. See Fort Stewart Sch. v. Federal Labor

Relations Auth., 495 U.S. 641, 649 (1990). The diverse

models no doubt reflect varying assessments of the

impact and unfairness of the free-rider problem and

genuine policy disagreements about whether public-

sector collective bargaining is worthwhile.

But even under standards of scrutiny more de-

manding than the reasonableness review afforded to

conuitions on government employment, this Court has

not held that a governmental interest is insufficient to

support a challenged legal requirement because the

requirement has not been adopted by all 50 States and

the federal government. Particularly as applied to

conditions of public employment, such a homogenizing

constitutional doctrine would lead to “judicial inter-

vention in the conduct of governmental operations to a

degree inconsistent with sound principles of federal-

ism and the separation of powers,” Garcetti, 547 U.S.

at 423, and would “unnecessarily constitutionalize[]

another element of American life,” Elrod, 427 U.S. at

389 (Powell, J., dissenting).

C. Petitioners Have Identified No Special Justification

To Overrule The Abood Line Of Cases

For the reasons given above, Abood was correctly

decided. But even if the Court harbored some doubt

about that conclusion, stare decisis would strongly

favor declining to revisit a question that has been

settled for nearly four decades. Although “stare deci-

sis is not an inexorable command, * * * even in

constitutional cases, the doctrine carries such persua-

31

sive force that [the Court has] always required a de-

parture from precedent to be supported by some spe-

cial justification.” Dickerson v. United States, 530

U.S. 428, 443 (2000) (emphasis, citations, and internal

quotation marks omitted). No such special justifica-

tion has been established here.

1. Overruling Abood would destabilize First

Amendment law. It would require the Court also to

overrule at least Lehnert, Locke, and Chicago Teach-

ers Union, Local No. 1 v. Hudson, 475 U.S. 292

(1986). In addition, given the state-action holding of

the RLA cases (see pp. 3, 16, supra), overruling Abood

would raise doubt about the constitutionality of an

RLA provision that this Court has upheld for nearly

70 years against First Amendment challenges. More-

over, it would leave lower courts, state and local gov-

ernments, and the broader public at a loss as to why

the Court has jettisoned the traditional deferential

standard of scrutiny for conditions of public employ-

ment only in the context of public-sector unions.

Discarding Abood would also shake the doctrinal

foundations of this Court’s decisions in other areas.

For example, the Court’s unanimous opinion in Keller

permitted mandatory dues for an integrated bar

largely on the strength of Abood, relying on the “sub-

stantial analogy” between a union and a state bar. 496

U.S. at 12, 14. Likewise, in evaluating student activity

fees, the Court has held that “Abood and Keller * * *

provide the beginning point for our analysis.” Board

of Regents of Univ. of Wis. Sys. v. Southworth, 529

U.S. 217, 230-231 (2000). And this Court’s decisions

considering the constitutionality of statutory schemes

imposing assessments to fund generic advertising

relied expressly on a “proper application of the rule in

32

Abood.” United States v. United Foods, Inc., 533 U.S.

405, 413-417 (2001); see Glickman v. Wileman Bros. &

Elliott, Inc., 521 U.S. 457, 471-474 (1997).

Petitioners assert (Br. 53) that “nobody defends

[Abood’s] original rationale,” but that rests on the

mistaken view that Abood did not apply general prin-

ciples of this Court’s public-employee cases. See pp.

15-18, supra. They also contend (Br. 55-56) that

Abood conflicts with subsequent decisions of this

Court. But they do not identify any holding of the

Court that conflicts with Abood, because none exists.

They rely (Pet. Br. 54-55) on dicta in Knoz and then in

Harris, but Harris made clear that the Court was not

disturbing Abood. 134 S. Ct. at 2638 n.19. As between

declining to give effect to dicta and overruling multi-

ple holdings of this Court stretching back almost 40

years, the former is obviously more consistent with

jurisprudential stability.

2. Petitioners contend (Br. 56-57) that the Abood

rule has proven “entirely ‘unworkable,’” noting Har-

ris’s observation that Abood had overlooked the

“‘conceptual difficulty’” of distinguishing between

union expenditures germane to collective bargaining

and those that are not germane. Br. 56 (quoting Har-

ris, 134 S. Ct. at 2632). With respect, that view lacks

support. Since Abood was decided in 1977, this Court

has decided two cases drawing the line between

chargeable and nonchargeable expenses for public

employees (Lehnert and Locke), and one other case

addressing that issue under the RLA (Ellis v. Rail-

way Clerks, 466 U.S. 435 (1984)). Locke was unani-

mous; Ellis was 8-1; and Lehnert was 8-1 on the result

for a number of the challenged expenditures.

33

Overruling Abood, moreover, would not free courts

from having to apply the “germaneness” requirement,

because the same issue arises for private-sector em-

ployers under the NLRA. Beck, 487 U.S. at 745, 762-

763. And in neither context is it particularly difficult

in the mine-run of cases to distinguish between union

activities directed at an employer as part of bargain-

ing, contract administration, and grievance adjust-

ment, and speech directed to the broader political

arena. Cf. Keller, 496 U.S. at 15-16. Any residual

concerns or conceptual difficulty should be addressed

by refining the “germaneness” requirement, not by

sweeping away decades of precedent authorizing fees

even for activities that are clearly constitutionally

chargeable.

3. Most troubling, overruling Abood would invali-

date numerous state collective-bargaining frameworks

erected in reliance on this Court’s longstanding, re-

peated pronouncements that agency fees are permis-

sible. See Att’y Gen. of Cal. Br. 45-46; Union Resps.

Br. 32-34. That would require public employers and

unions to find new sources of funding—for example,

by raising dues for union members—to subsidize em-

ployees who elect to abstain from paying for a free

benefit. Upending decades of settled expectations

would thus inflict substantial costs and disruption on

state and local governments.

34

Il. THE NOTICE PROCEDURE PERMITTED BY

CALIFORNIA LAW DOES NOT VIOLATE THE FIRST

AMENDMENT

Petitioners briefly contend (Br. 60-63) that the pro-

cedure under California law for declining to pay fees

for nonchargeable expenses—essentially, checking a

box on a form and mailing it in—violates their First

Amendment right not to be terminated from employ-

ment for refusal to support the union’s political or

ideological activities. That argument lacks merit.

This Court first held in Street in 1961 that an objec-

tion to paying nonchargeable expenses must “affirma-

tively be made known to the union by the dissenting

employee,” 367 U.S. at 774, and it has adopted the

same rule in the context of public employers, see

Hudson, 475 U.S. at 306 & n.16. Employees, however,

must have a clear, simple opportunity to object each

year to the portion of a fee that is nonchargeable. As

this Court explained in Knoz, it is constitutionally

“tolerable” to give employees “one opportunity per

year” to object “if employees are able at the time to

make an informed choice.” 132 S. Ct. at 2291.

Contrary to petitioners’ evident assumption, an in-

dividual often must interpose an objection to invoke a

constitutional right, even for many rights deemed

fundamental. For example, in criminal trials, most

rights must be invoked by the criminal defendant,

which is why unobjected-to claims are reviewed only

for plain error. See Fed. R. Crim. P. 52(b). A failure

to raise a timely objection to the denial of a constitu-

tional right in state court generally precludes federal

habeas review, precisely because States may permis-

sibly condition federal rights on timely objections.

Wainwright v. Sykes, 433 U.S. 72, 86-88 (1977). Like-

35

wise, in civil litigation, a party must affirmatively

object that a court lacks personal jurisdiction, see

Fed. R. Civ. P. 12(h)(1), must affirmatively opt out

of a Rule 23(b)(3) class action, Fed. R. Civ. P.

23(c)(2)(B)(v), and must request a jury trial, see Fed.

R. Civ. P. 38(d). And when the government takes an

individual’s property, she must affirmatively seek just

compensation through the procedure that the gov-

ernment has established. See Williamson County

Reg'l Planning Comm’n v. Hamilton Bank, 473 U.S.

172, 194-195 (1985).

Of course, if the mechanism for invoking a constitu-

tional right were unduly burdensome, it would raise a

serious constitutional question. But the procedure

authorized by California law is nowhere close to the

line. The notice in the record, for example, states in

plain language that the employee can obtain “a rebate

of the nonchargeable portion of [the] fees.” J.A. 663-

664. The employee is asked only to check a box and

mail in a form. It is difficult to believe that anyone

with a genuine objection would find that annual pro-

cedure overly taxing. And if an objecting employee

challenges the union’s calculations, the union has the

burden of proving the percentage of chargeable ex-

penses. Hudson, 475 U.S. at 306.

Petitioners cite no general constitutional principle,

much less a “venerable” one (Br. 60), suggesting that

requiring employees to state an objection is unlawful,

but rather rely primarily on the latest social-science

theories. See Pet. Br. 61 (quoting Richard H. Thaler

& Cass R. Sunstein, Nudge: Improving Decisions

About Health, Wealth, and Happiness 8 (2009)). The

First Amendment’s prohibition on the “abridg{[ment)”

of speech, however, does not encompass “nudges.”

36

The First Amendment protects those who truly object

to subsidizing the union’s political activities; it is not

designed for public employees who are so indifferent

that they do not make the effort to check a box and

mail in a form. Although courts “do not presume

acquiescence in the loss of fundamental rights,” Ohio

Bell Tel. Co. v. Public Utils. Comm’n, 301 U.S. 292,

307 (1937), no such presumption is required where an

employee is provided clear notice and a simple way to

object, yet does nothing.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

DONALD B. VERRILLI, JR.

M. PATRICIA SMITH Solicitor General

Solicitor of Labor EDWIN S. KNEEDLER

EDWARD D. SIEGER Deputy Solicitor General

Senior Attorney JOHN F. BASH

ADAM R. PULVER Assistant to the Solicitor

Auax VAN SCHAICK General

Department of Labor

NOVEMBER 2015

APPENDIX

1. U.S. Const. Amend I provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of griev-

ances.

2. 29 U.S.C. 158 (1940) provides in pertinent part:

Unfair labor practices by employer defined.

> * * » *

(3) By discrimination in regard to hire or tenure

of employment or any term or condition of employment

to encourage or discourage membership in any labor

organization: Provided, That nothing in sections

151-166 of this title or in any other statute of the

United States, shall preclude an employer from mak-

ing an agreement with a labor organization (not estab-

lished, maintained, or assisted by any action defined in

sections 151-166 of this title as an unfair labor prac-

tice) to require as a condition of employment mem-

bership therein, if such labor organization is the rep-

resentative of the employees as provided in section

159 (a) of this title, in the appropriate collective bar-

gaining unit covered by such agreement when made.

(la)

2a

3. 29 U.S.C. 158 provides in pertinent part:

Unfair labor practices

(a) Unfair labor practices by employer

* * * * s

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment to

encourage or discourage membership in any labor or-

ganization: Provided, That nothing in this subchapter,

or in any other statute of the United States, shall preclude

an employer from making an agreement with a labor or-

ganization (not established, maintained, or assisted by

any action defined in this subsection as an unfair labor

practice) to require as a condition of employment mem-

bership therein on or after the thirtieth day following the

beginning of such employment or the effective date of

such agreement, whichever is the later, (i) if such labor

organization is the representative of the employees as

provided in section 159(a) of this title, in the appropriate

collective-bargaining unit covered by such agreement

when made, and (ii) unless following an election held as

provided in section 159(e) of this title within one year

preceding the effective date of such agreement, the Board

shall have certified that at least a majority of the em-

ployees eligible to vote in such election have voted to

rescind the authority of such labor organization to make

such an agreement: Provided further, That no employer

shall justify any discriminatioi against an employee for

nonmembership in a labor organization (A) if he has rea-

sonable grounds for believing that such membership was

not available to the employee on the same terms and con-

3a

ditions generally applicable to other members, or (B) if he

has reasonable grounds for believing that membership

was denied or terminated for reasons other than the fail-

ure of the employee to tender the periodic dues and the

initiation fees uniformly required as a condition of acquir-

ing or retaining membership;

4, 45 U.S.C. 152 provides in pertinent part:

General duties

* *+ * * *

Eleventh. Union security agreements; check-off

Notwithstanding any other provisions of this chapter,

or of any other statute or law of the United States, or

Territory thereof, or of any State, any carrier or carriers

as defined in this chapter and a labor organization or la-

bor organizations duly designated and authorized to rep-

resent employees in accordance with the requirements of

this chapter shall be permitted—

(a) to make agreements, requiring, as a condi-

tion of continued employment, that within sixty days

following the beginning of such employment, or the ef-

fective date of such agreements, whichever is the later,

all employees shall become members of the labor or-

ganization representing their craft or class: Provid-

ed, That no such agreement shall require such condi-

tion of employment with respect to employees to whom

membership is not available upon the same terms and

conditions as are generally applicable to any other

4a

member or with respect to employees to whom mem-

bership was denied or terminated for any reason other

than the failure of the employee to tender the periodic

dues, initiation fees, and assessments (not including

fines and penalties) uniformly required as a condition

of acquiring or retaining membership.

(b) to make agreements providing for the deduc-

tion by such carrier or carriers from the wages of its or

their employees in a craft or class and payment to the

labor organization representing the craft or class of

such employees, of any periodic dues, initiation fees,

and assessments (not including fines and penalties)

uniformly required as a condition of acquiring or re-

taining membership: Provided, That no such agree-

ment shall be effective with respect to any individual

employee until he shall have furnished the employer

with a written assignment to the labor organization of

such membership dues, initiation fees, and assess-

ments, which shall be revocable in writing after the

expiration of one year or upon the termination date of

the applicable collective agreement, whichever occurs

sooner.

(c) The requirement of membership in a labor or-

ganization in an agreement made pursuant to sub-

paragraph (a) of this paragraph shall be satisfied, as to

both a present or future employee in engine, train,

yard, or hostling service, that is, an employee engaged

in any of the services or capacities covered in the First

division of paragraph (h) of section 153 of this title de-

fining the jurisdictional scope of the First Division of

the National Railroad Adjustment Board, if said em-

ployee shall hold or acquire membership in any one of

5a

the labor organizations, national in scope, organized in

accordance with this chapter and admitting to mem-

bership employees of a craft or class in any of said ser-

vices; and no agreement made pursuant to subpara-

graph (b) of this paragraph shall provide for deduc-

tions from his wages for periodic dues, initiation fees,

or assessments payable to any labor organization other

than that in which he holds membership: Provided,

however, That as to an employee in any of said services

on a particular carrier at the effective date of any such

agreement on a carrier, who is not a member of any

one of the labor organizations, national in scope, orga-

nized in accordance with this chapter and admitting to

membership employees of a craft or class in any of said

services, such employee, as a condition of continuing

his employment, may be required to become a member

of the organization representing the craft in which he

is employed on the effective date of the first agreement

applicable to him: Provided, further, That nothing

herein or in any such agreement or agreements shall

prevent an employee from changing membership from

one organization to another organization admitting to

membership employees of a craft or class in any of said

services.

(d) Any provisions in paragraphs Fourth and Fifth

of this section in conflict herewith are to the extent of

such conflict amended.

*_ «+ *+ * *

6a

5. Cal. Gov’t Code § 3540 (West 2010) provides:

Purpose of chapter

It is the purpose of this chapter to promote the im-

provement of personnel management and employer-

employee relations within the public school systems in

the State of California by providing a uniform basis for

recognizing the right of public school employees to join

organizations of their own choice, to be represented by

the organizations in their professional and employment

relationships with public school employers, to select

one employee organization as the exclusive represent-

ative of the employees in an appropriate unit, and to

afford certificated employees a voice in the formulation

of educational policy. This chapter shall not super-

sede other provisions of the Education Code and the

rules and regulations of public school employers which

establish and regulate tenure or a merit or civil service

system or which provide for other methods of admin-

istering employer-employee relations, so long as the

rules and regulations or other methods of the public

school employer do not conflict with lawful collective

agreements.

It is the further intention of the Legislature that

this chapter shall not restrict, limit, or prohibit the full

exercise of the functions of any academic senate or

faculty council established by a school district in a

community college to represent the faculty in making

recommendations to the administration and governing

board of the school district with respect to district pol-

icies on academic and professional matters, so long as

the exercise of the functions does not conflict with law-

ful collective agreements.

Ta

It is further intention of the Legislature that any

legislation enacted by the Legislature governing

employer-employee relations of other public employ-

ees shall be incorporated into this chapter to the ex-

tent possible. The Legislature also finds and declares

that it is an advantageous and desirable state policy to

expand the jurisdiction of the board created pursuant

to this chapter to cover other public employers and

their employees, in the event that this legislation is

enacted, and if this policy is carried out, the name of

the Educational Employment Relations Board shall be

changed to the “Public Employment Relations Board.”

6. Cal. Gov’t Code § 3543.2 (West Supp. 2015) pro-

vides:

Scope of representation; requests to meet and negotiate

(a)(1) The scope of representation shall be limited

to matters relating to wages, hours of employment,

and other terms and conditions of employment.

“Terms and conditions of employment” mean health

and welfare benefits as defined by Section 53200,

leave, transfer and reassignment policies, safety con-

ditions of employment, class size, procedures to be

used for the evaluation of employees, organizational

security pursuant to Section 3546, procedures for

processing grievances pursuant to Sections 3548.5,

3548.6, 3548.7, and 3548.8, the layoff of probationary

certificated school district employees, pursuant to

Section 44959.5 of the Education Code, and alternative

compensation or benefits for employees adversely

affected by pension limitations pursuant to former

8a

Section 22316 of the Education Code, as that section

read on December 31, 1999, to the extent deemed

reasonable and without violating the intent and pur-

poses of Section 415 of the Internal Revenue Code.’

(2) A public school employer shall give reasonable

written notice to the exclusive representative of the

public school employer’s intent to make any change to

matters within the scope of representation of the em-

ployees represented by the exclusive representative

for purposes of providing the exclusive representative

a reasonable amount of time to negotiate with the pub-

lie school employer regarding the proposed changes.

(3) The exclusive representative of certificated

personnel has the right to consult on the definition of

educational objectives, the determination of the con-

tent of courses and curriculum, and the selection of

textbooks to the extent those matters are within the

discretion of the public school employer under the law.

(4) All matters not specifically enumerated are

reserved to the public school employer and may not be

a subject of meeting and negotiating, except that this

section does not limit the right of the public school

employer to consult with any employees or employee

organization on any matter outside the scope of rep-

resentation.

(b) Notwithstanding Section 44944 of the Educa-

tion Code, the public school employer and the exclusive

representative shall, upon request of either party,

meet and negotiate regarding causes and procedures

' Internal Revenue Code sections are in Title 26 of the U.S.C.A.

9a

for disciplinary action, other than dismissal, including

a suspension of pay for up to 15 days, affecting certifi-

cated employees. If the public school employer and

the exclusive representative do not reach mutual

agreement, Section 44944 of the Education Code shall

apply.

(c) Notwithstanding Section 44955 of the Educa-

tion Code, the public school employer and the exclusive

representative shall, upon request of either party,

meet and negotiate regarding procedures and criteria

for the layoff of certificated employees for lack of

funds. If the public school employer and the exclu-

sive representative do not reach mutual agreement,

Section 44955 of the Education Code shall apply.

(d) Notwithstanding Section 45028 of the Educa-

tion Code, the public school employer and the exclusive

representative shall, upon request of either party,

meet and negotiate regarding the payment of addi-

tional compensation based upon criteria other than

years of training and years of experience. If the pub-

lic school employer and the exclusive representative do

not reach mutual agreement, Section 45028 of the

Education Code shall apply.

(e) Pursuant to Section 45028 of the Education

Code, the public school employer and the exclusive

representative shall, upon the request of either party,

meet and negotiate a salary schedule based on criteria

other than a uniform allowance for years of training

and years of experience. If the public school em-

ployer and the exclusive representative do not reach

mutual agreement, the provisions of Section 45028 of

the Education Code requiring a salary schedule based

10a

upon a uniform allowance for years of training and

years of experience shall apply. A salary schedule

established pursuant to this subdivision shall not re-

sult in the reduction of the salary of a teacher.

7. Cal. Gov’t Code § 3544.9 (West 2010) provides:

Exclusive representative; duty

The employee organization recognized or certified as

the exclusive representative for the purpose of meet-

ing and negotiating shall fairly represent each and

every employee in the appropriate unit.

8. Cal. Gov’t Code § 3546 (West 2010) provides:

Member of recognized employee organization or pay-

ment of fair share service fee; condition of employment

(a) Notwithstanding any other provision of law,

upon receiving notice from the exclusive representa-

tive of a public school employee who is in a unit for

which an exclusive representative has been selected

pursuant to this chapter, the employer shall deduct the

amount of the fair share service fee authorized by this

section from the wages and salary of the employee and

pay that amount to the employee organization.

Thereafter, the employee shall, as a condition of con-

tinued employment, be required either to join the

recognized employee organization or pay the fair share

service fee. The amount of the fee shall not exceed

the dues that are payable by members of the employee

lla

organization, and shall cover the cost of negotiation,

contract administration, and other activities of the

employee organization that are germane to its func-

tions as the exclusive bargaining representative.

Agency fee payers shall have the right, pursuant to

regulations adopted by the Public Employment Rela-

tions Boards, to receive a rebate or fee reduction upon

request, of that portion of their fee that is not devoted

to the cost of negotiations, contract administration,

and other activities of the employee organization that

are germane to its function as the exclusive bargaining

representative.

(b) The costs covered by the fee under this section

may include, but shall not necessarily be limited to, the

cost of lobbying activities designed to foster collective

bargaining negotiations and contract administration,

or to secure for the represented employees advantages

in wages, hours, and other conditions of employment in

addition to those secured through meeting and negoti-

ating with the employer.

(c) The arrangement described in subdivision (a)

shall remain in effect unless it is rescinded pursuant to

subdivision (d). The employer shall remain neutral,

and shall not participate in any election conducted un-

der this section unless required to do so by the board.

‘3)(1) The arrangement described in subdivision

(a) may be rescinded by a majority vote of all the em-

ployees in the negotiating unit subject to that ar-

rangement, if a request for a vote is supported by a

petition containing 30 percent of the employees in the

negotiating unit, the signatures are obtained in one

academic year. There shall not be more than one vote

12a

taken during the term of any collective bargaining

agreement in effect on or after January 1, 2001.

(2) If the arrangement described in subdivision

(a) is rescinded pursuant to paragraph (1), a majority

of all employees in the negotiating unit may request

that the arrangement be reinstated. That request

shall be submitted to the board along with a petition

containing the signatures of at least 30 percent of the

employees in the negotiating unit. The vote shall be

conducted at the worksite by secret ballot, and shall be

conducted no sooner than one year after the rescission

of the arrangement under this subdivision.

(3) If the board determines that the appropriate

number of signatures have been collected, it shall

conduct the vote to rescind or reinstate in a manner

that it shall prescribe in accordance with this subdivi-

sion.

(4) The cost of conducting an election under this

subdivision to reinstate the organizational security

arrangement shall be borne by the petitioning party

and the cost of conducting an election to rescind the

arrangement shall be borne by the board.

(e) The recognized employee organization shall

indemnify and hold the public school employer harm-

less against any reasonable legal fees, legal costs, and

settlement or judgment liability arising from any court

or administrative action relating to the school district’s

compliance with this section. The recognized em-

ployee organization shall have the exclusive right to

determine whether any such action or proceeding shall

or shall not be compromised, resisted, defended, tried,

13a

or appealed. This indemnification and hold harmless

duty shall not apply to actions related to compliance

with this section brought by the exclusive representa-

tive of district employees against the public school

employer.

(f) The employer of a public school employee

shall provide the exclusive representative of a public

employee with the home address of each member of a

bargaining unit, regardless of when that employee

commences employment, so that the exclusive repre-

sentative can comply with the notification require-

ments set forth by the United States Supreme Court in

Chicago Teachers Union v. Hudson (1986) 89 L.Ed. 2d

232.

9. Cal. Code Regs. tit. 8, § 32992 (2015) provides:

Notification of Nonmember.

(a) The exclusive representative shall provide annu-

al written notice to each nonmember who will be required

to pay an agency fee. The notice shall include:

(1) The amount of the exclusive representative’s

dues and the agency fee;

(2) The percentage of the agency fee amount that is

attributable to chargeable expenditures and the basis for

this calculation;

(3) The amount of the agency fee to be paid by a

nonmember who objects to the payment of an agency fee

amount that includes nonchargeable expenditures (here-

inafter referred to as an “agency fee objector”); and

l4a

(4) Procedures for (A) objecting to the payment of

an agency fee amount that includes nonchargeable ex-

penditures and (B) challenging the calculation of the

nonchargeable expenditures.

(b)(1) The calculation of the chargeable and non-

chargeable expenditures will be based on an audited

financial report, and the notice will include either a copy

of the audited financial report used to calculate the

chargeable and nonchargeable expenditures or a certifi-

cation from the independent auditor that the summarized

chargeable and nonchargeable expenditures contained ir

the notice have been audited and correctly reproduced

from the audited report, or

(2) the calculation of the chargeable and non-

chargeable expenditures may be based on an unaudit-

ed financial report if the exclusive representative’s an-

nual revenues are less than $50,000 and a nonmember

is afforded a procedure sufficiently reliable to ensure

that a nonmember can independently verify that the

employee organization spent its money as stated in the

notice.

(c) Such written notice shall be sent/distributed to

the nonmember either:

(1) At least 30 days prior to collection of the agency

fee; or

(2) Concurrent with the initial agency fee collec-

tion provided escrow requirements in Section 32995

are met; or

(3) In the case of public school employees, where the

agency fee year covers the traditional school year, on or

15a

before October 15 of the school year, provided escrow

requirements in Section 32995 are met.

10. Cal. Code Regs. tit. 8, § 32993 (2015) provides:

Exclusive Representative’s Objection Procedure.

Each exclusive representative that has an agency fee

provision shall administer <2 Objection Procedure in ac-

cordance with the following:

(a) An agency fee objection shall be filed in writing

with the designated representative of the exclusive rep-

resentative.

(b) The procedure shall allow at least 30 days fol-

lowing distribution of the notice required under Section

32992 of these regulations for the filing of an agency fee

objection.

11. Cai. Code Regs. tit. 8, § 32994 (2015) provides:

Exclusive Representative’s Challenge Procedure.

(a) An agency fee payer who disagrees with the

exclusive representative’s determination of the chargea-

ble expenditures contained in the agency fee amount and

who files a timely agency fee challenge with the exclusive

representative shall be hereafter known as an “agency fee

challenger.” An agency fee challenger may file an unfair

practice charge that challenges the determination of the

chargeable expenditures contained in the agency fee

amount; however, no complaint shall issue until the agen-

l6a

cy fee challenger has first exhausted the Exclusive Rep-

resentative’s Challenge Procedure. No agency fee chal-

lenger shall be required to exhaust the Exclusive Repre-

sentative’s Challenge Procedure where it is insufficient on

its face.

(b) Each exclusive representative that has an agency

fee provision shall administer a Challenge Procedure in

accordance with the following:

(1) An agency fee challenge shall be filed in writ-

ing with the official designated by the exclusive rep-

resentative in the annual notice.

(2) The procedure shall allow at least 30 days fol-

lowing distribution of the notice required under Section

32992 of these regulations for the filing of an agency fee

challenge.

(3) Upon receipt of an agency fee challenge, the

exclusive representative shall within 45 days of the last

day for filing a challenge request a prompt hearing re-

garding the agency fee before an impartial decisionmak-

er.

(4) The impartial decisionmaker shall be selected by

the American Arbitration Association or the California

State Mediation Service. The selection between these

entities shall be made by the exclusive representative.

(5) Any party may make a request for a consolidated

hearing of multiple agency fee challenges based on case

similarities, including but not limited to, hearing location.

At any time prior to the start of the hearing, any party

may make a mot*9n to the impartial decisionmaker chal-

lenging any consoudation of the hearing.

17a

(6) The exclusive representative bears the burden of

establishing the reasonableness of the amount of the

chargeable expenditures.

(7) Agency fee challenge hearings shall be fair, in-

formal proceedings conducted in conformance with basic

precepts of due process.

(8) All decisions of the impartial decisionmaker shall

be in writing, and shall be rendered no later than 30 days

after the close of the hearing.

(9) All hearing costs shall be borne by the exclusive

representative, unless the exclusive representative and

the agency fee challenger agree otherwise.