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

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MOY 13 2S

No. 14-915

IN THE

Supreme Court of the United States

REBECCA FRIEDRICHS, et al.,

Petitioners,

V.

CALIFORNIA TEACHERS ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AND THE AMERICAN

FEDERATION OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Of Counsel: LYNN K. RHINEHART

LAURENCE GOLD HAROLD C. BECKER

805 Fifteenth Street, NW James B. Coppess

Washington, DC 20005 (Counsel of Record)

815 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5337

jcoppess@aficio.org

WILLIAM LURYE

MATTHEW S. BLUMIN

1101 Seventeenth Street, NW

Washington, DC 20036

Peake OeLancey Printers, LLC - (301) 341-4600 - Cheverly MD

=>

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ..............00..00+

SUMMARY OF ARGUMENT...................eccceee

I. ABOOD CORRECTLY HELD THAT

PUBLIC SECTOR AGENCY SHOP

ARRANGEMENTS, AS SUCH, DO

NOT VIOLATE THE FIRST

| _________— A

A. Abood Correctly Looked to the

Court’s Prior Decisions in

Hanson and Street for

Interests Served by the

Union Shop Agreements

Authorized by the Railway

Labor Act as Relevant to the

Constitutionality of Public

B. Abood Took Careful Account

of the Unique Nature of

Public Sector Collective

Le

ii

TABLE OF CONTENTS—Continued

18

18

TABLE OF CONTENTS—Continued

A. Protection of Expressed Dissent

Was Essential to Street's Limiting

Construction of the Railway Labor

. Consistent with the First

Page

iv

TABLE OF AUTHORITIES

CASES: Page

Abood v. Detroit Bd. of Education,

ey I cteriiniicieninitinicteimegndnnernnmssens passim

Air Line Pilots v. Miller,

ic iterianehtnciane 28

American Mfrs. Mut. Ins. Co. v. Sullivan,

a SITIIT cnsicsihaiadenininienndinidntiniiiniiinatien Af)

Board of Commissioners v. Umbehr,

Py CAs Ge iisiticcccnsccnsccssscoesseces 19, 20, 21, 27

Chicago Teachers v. Hudson,

| eae 18

Civil Service Comm'n v. Letter Carriers,

ee nic ncinicpniineenesiinatanenssiecs 20

Communications Workers v. Beck,

TT ss inininttictedieiniannnteannaons 7, 9, 31

Connick v. Myers,

Be eI nccntctibdnsiintsnnseceniieebianes 27

Davenport v. Washington Education

Association, 551 U.S. 177 (2007).............. 28, 32

Eliis v. Railway Clerks,

tS I icricintccnctencsnnisensntnidiiiciinen 7, 10

Harris v. Quinn,

ly SN CD ccncccsnssccestansenmnncinnaseesta passim

Vv

TABLE OF AUTHORITIES—Continued

Page

Jackson v. Metropolitan Edison Co.,

ee I ircietiinntidericnninnnnintucsscees i)

Johanns v. Livestock Mktg. Ass’n,

ee a criscicecetencduinennnincensoes 33, 34

Keller v. State Bar of Cal.,

TEE Oe IIIT ninsninthbcieninnidemnanibiindianndincees 32, 34

Knight v. Minnesota Community College

Faculty Assn., 460 U.S 1048 (1983).......... 22

Knox v. Service Employees Local 1000,

ee Hy IT iichivenennrscnusiinbatesenastsins 29

Lehnert v. Ferris Faculty Ass’n,

500 U.S. 507 (1991)...........c.ssecceesees 7, 15, 17, 18, 29

Locke v. Karass,

I incinicnecdiicinigasigitudipeniinenie 7, 17, 21

Machinists v. Street,

gE passim

Marquez v. Screen Actors Guild,

8 Ee 3]

Minnesota State Board for Community

Colleges v. Knight, 465 U.S. 271 (1984)... 22

NLRB v. General Motors Vorp.,

Ie Pe CIN erccccocesnsnrscttancensssapesscenses 7

vi

TABLE OF AUTHORITIES—Continued

Page

O’Hare Truck Service, Inc. v. City of

Northlake, 518 U.S. 712 (1996)....... piciabaaalie 19

Pickering v. Board of Education,

LS 3, 19, 21, 27

Public Utility Comm'n v. Pollak,

I iio icsirccineccnentensoebuen i)

Railway Employes’ Dept. v. Hanson,

| eee passim

Rutan v. Republican Party of [inois,

gL a 26

United States v. National Treasury

Employees Union, 513 U.S. 454

EERIE SSE ERAE ESD Ae teororermne meee 19, 20, 27

U.S. Dept. of Agriculture v. United

Foods, Inc., 533 U.S. 405 (2001)................ 32

West Virginia Bd. of Ed. v. Barnette,

I scinrcnenncenecnncinintanisiinisanie 32, 33

White v. Communications Workers

Local 13000, 370 F.3d 346 (3d Cir. 2004) i)

Wooley v. Maynard,

ee IT cnriiscnsncnncsienieninescnensecenens 32, 33

vii

TABLE OF AUTHORITIES—Continued

STATUTES:

Fe Oe SR ciritensnccossecnscnnstvemnvenionaseinns

SN te I icrsnnctansiatensicbiannninepnseimension

45 U.S.C. § 152, Eleventh(a) .....................2200

MISCELLANEOUS:

Richard Musgrave and Peggy Musgrave,

Public Finance in Theory and Practice

GEE |. svatslbsininisensipiniduesoasusihinsbinisiabendunnseneiaiies

Richard A. Posner, Economic Analysis

yn

Page

7, 30

25

24

l

BRIEF OF THE AMERICAN FEDERATION

OF LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AND THE AMERICAN

FEDERATION OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES AS AMICI

CURIAE IN SUPPORT OF

RESPONDENTS

INTEREST OF AMICI CURIAE

The American Federation of Labor and Congress of

Industrial Organizations is a federation of 56 national

and international labor organizations with a total

membership of 12.5 million working men and women,

many of whom are public employees.' The American

Federation of State, County and Municipal Employees

represents 1.6 million public employees. This case ad-

dresses the constitutionality of a public sector collec-

tive bargaining system in which employees are

required to help finance the costs of negotiating and

enforcing their collective bargaining agreements.

SUMMARY OF ARGUMENT

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

209 (1977), this Court correctly began its considera-

tion of the First Amendment implications of public

sector agency shop agreements with a careful review

! All parties have filed consents to the filing of amicus briefs.

No counsel for a party authored this brief amici curiae in whole

or in part, and no person or entity, other than the amici, made

a monetary contribution to the preparation or submission of

this brief. Laurence Gold, who appears on this brief, appeared

on the respondent union's brief in opposition; since the filing of

the brief in opposition, Mr. Gold has not acted as counsel for

the respondent union.

2

of its prior decisions in Railway Employes’ Dept. v.

Hanson, 351 U.S. 225 (1956), and Machinists v. Street,

367 U.S. 740 (1961). Hanson and Street involved First

Amendment challenges to the similar union shop

agreements authorized by the Railway Labor Act.

While the state action analysis that led the Court to

perceive First Amendment implications in privately

negotiated union shop agreements is now outmoded,

the Court did proceed in those cases as though the

First Amendment applied. Abood, therefore, correctly

relied upon the First Amendment analysis in those

cases.

Hanson and Street explain the practical utility of

the union shop in the majority-rule, exclusive-repre-

sentative collective bargaining system erected by the

Railway Labor Act. Abood determined that the agency

shop serves the same practical purposes in a similar

public sector collective bargaining system. And, just

so long as the agency shop is confined to requiring fi-

nancial support for union activities within the collec-

tive bargaining system, Abood perceived no greater

impairment of First Amendment rights than occurs

under a government-authorized private agreement.

Abood took careful account of the unique aspects

of puDlic sector collective bargaining. To ensure that

a public sector agency shop agreement is not used to

compel support for political activities, the Court held

that fees paid by objecting employees cannot be ex-

pended for purposes that are unrelated to collective

bargaining and grievance adjustment.

The constitutional balance struck in Abood accords

with the balancing test for considering the employ-

ment-related First Amendment claims of public em-

3

ployees that was established in Pickering v. Board of

Education, 391 U.S. 563 (1968). That balancing test

requires weighing the government’s reasonable un-

derstanding of the employment interests served by the

agency shop against the degree to which it impinges

upon the First Amendment interests of covered em-

ployees.

The government's interest in bargaining with an ex-

clusive representative chosen by a majority of the af-

fected employees is obvious — without such a single

representative bargaining would be virtually impossi-

ble. The government'’s interest in generally allocating

the exclusive-representative's bargaining expenses to

the represented group, as opposed to the government

directly funding the representative, is equally obvious.

The government can reasonably further conclude that

allocating the bargaining expenses among all repre-

sented employees, rather than just the subset who are

union members, avoids the risk of free-riders.

So long as the required financial support is confined

to the exclusive representative's activities within the

public employer's collective bargaining and grievance

adjustment systems, the effect on employees’ First

Amendment rights is limited. To the extent that the

funded activities involve speech at all, they involve

speech occurring largely within the employer's labor re-

lations system and not in any public forum. The em-

ployees remain free to speak out against the

representative's activities, and they are not required to

personally associate with those activities. All that being

so, the government's reasonable understanding of the

utility of the agency shop is sufficient to justify any im-

pingement upon employees’ First Amendment rights.

4

Il. This Court has repeatedly held that employees

are protected from paying full agency fees only if they

express objection to so doing, a rule that derives from

the line of cases concerning compelled speech. This

rule was adopted in Street as an essential aspect of

the Court's reasoning in construing the Railway Labor

Act. Street’s strained construction of the RLA was de-

signed to avoid a perceived constitutional problem

that would arise if dissent were not protected by the

statute. Accordingly, the rule is reasonably under-

stood to reflect the constitutional requiremenits.

The protection of express dissent arises from the

relationship of cases like Street and Abood to the more

general line of compelled speech cases. Those cases

hold that citizens have a First Amendment right to

refrain from making government-prescribed state-

ments. The compelled speech cases require only

that the government allow the citizen to refrain

from making the prescribed statement. Likewise,

cases like Street and Abood require only that em-

ployees be allowed to refrain from financially

supporting activities outside of the realm of collec-

tive bargaining and grievance adjustment by ex-

pressing their objection to financing such expen-

ditures.

ARGUMENT

In Abood v. Detroit Bd. of Education, 431 U.S. 209,

211 (1977), the Court considered whether “a system

of union representation of local government employ-

ees” in which “[a] union and a local government em-

ployer are specifically permitted to agree to an

‘agency shop’ arrangement, whereby every employee

represented by a union — even though not a union

5

member — must pay to the union, a service fee equal

in amount to union dues . . . violates the constitutional

rights of government employees who object to

public-sector unions as such or to various union ac-

tivities financed by the compulsory service fees.”

Answering this question, the Court first held that

the system did not violate the First Amendment

“insofar as the service charge is used to finance

expenditures by the Union for the purposes of collec-

tive bargaining, contract administration, and griev-

ance adjustment.” Jd. at 225. However, the Court

went on to also “hold that a union cannot constitu-

tionally spend funds for the expression of political

views, on behalf of political candidates, or toward

the advancement of other ideological causes not ger-

mane to its duties as collective-bargaining represen-

tative” to the extent those “expenditures [are]

financed from charges, dues, or assessments paid by

employees who .. . object to advancing those ideas

and who are . . . coerced into doing so against their

will by the threat of loss of governmental employ-

ment.” Id. at 235-36.

The first question presented and the overwhelming

bulk of the petitioners’ brief concern Abood’s ruling

that public sector agency shop arrangements are con-

stitutional insofar as the agency fees are used by the

union for the purpose of collective bargaining, con-

tract administration and grievance adjustment. Pet.

16-60. The second question presented and the last

three pages of the petitioners’ brief concern Abood’s

holding that a union may not expend agency fees on

political or ideological activity unrelated to collective

bargaining over a fee payer's objection. Jd. at 60-63.

We take up each question in turn.

6

I. ABOOD CORRECTLY HELD THAT PUBLIC

SECTOR AGENCY SHOP ARRANGEMENTS,

AS SUCH, DO NOT VIOLATE THE FIRST

AMENDMENT.

In arguing that the Court should overrule Abood’s

central holding regarding the constitutionality of pub-

lic sector agency shop agreements, the petitioners

place great weight on the criticisms of Abood voiced

in Harris v. Quinn, 134 S.Ct. 2618 (2014). We, there-

fore, begin by showing that the two principal criti-

cisms of Abood in the Harris opinion — that Abood

placed excessive reliance upon prior decisions con-

sidering the constitutionality of union shop agree-

ments authorized by the Railway Labor Act, id., at

2632, and that Abood failed to appreciate the unique

nature of public sector collective bargaining, id. at

2632-33 — are without substance.

In place of the “constitutional balance” struck in

Abood, 431 U.S. at 229, the petitioners maintain that

public sector agency shop arrangements must be sub-

ject to strict scrutiny under the First Amendment. We

conclude this first section of our brief by showing that

government employment practices, such as the

agency shop, are subject to precisely the sort of bal-

ancing applied in Abood.

A. Abood Correctly Looked to the Court’s

Prior Decisions in Hanson and Street

for Guidance.

Abood’s “[cjonsideration of the question whether an

agency-shop provision in a collective-bargaining

agreement covering governmental employees is, as

such, constitutionally valid . . . begin{[s] with two cases

7

... that on their face go far toward resolving the issue

... Railway Employes’ Dept. v. Hanson, [351 U.S. 225

(1956)], and Machinists v. Street, 367 U.S. 740

[(1961)].” 431 U.S. at 217. Abood looked to Hanson

and Street for “guidance regarding what the First

Amendment will countenance” with respect to public

sector agency shop arrangements, because those

cases had considered analogous First Amendment

challenges to “a governmentally authorized union-

shop agreement” under the Railway Labor Act. Lehn-

ert v. Ferris Faculty Ass'n, 500 U.S. 507, 515 & 516

(1991).?

Taken together, “Hanson, Street, and Abood ... set

forth a general First Amendment principle: The First

Amendment permits the government to require both

public sector and private sector employees who do

not wish to join a union designated as the exclusive

collective-bargaining representative at their unit of

employment to pay that union a service fee as a con-

dition of their continued employment.” Locke v.

Karass, 555 U.S. 207, 213 (2009). See, e.g., Ellis v.

Railway Clerks, 466 U.S. 435, 455-56 (1984) (citing

2 The Railway Labor Act, like the National Labor Relations

Act, “permits an employer and a union to enter into an agree-

ment requiring all employees to become union members as a

condition of continued employment, but the ‘membership’ that

may be so required has been ‘whittled down to its financial

core.” Communications Workers v. Beck, 487 U.S.735, 745

(1988), quoting NLRB v. General Motors Corp., 373 U.S. 734,

742 (1963). See 29 U.S.C. § 158(a)(3); 45 U.S.C. § 152,

Eleventh(a). Thus, there is no legally effective difference be-

tween a “union shop” agreement requiring “membership” and

an “agency shop” agreement requiring payment of an amount

equal to membership dues. See General Motors, 373 U.S. at 743-

44.

8

Abood, Street and Hanson in support of the statement

that “[i]t has long been settled that such interference

with First Amendment rights [as caused by the union

shop] is authorized by the governmental interest in in-

dustrial peace.”).

1. Hanson and Street Are First Amendment

Precedents.

Harris asserts that “[t}he Abood Court seriously

erred in treating Hanson and Street as having all but

decided the constitutionality of compulsory payments

to a public-sector union” on the ground that those

cases merely “held. . . that the RLA was constitutional

in its bare authorization of union-shop contracts,”

while “the State of Michigan did more than simply au-

thorize the imposition of an agency fee,” it “actually

imposed that fee.” 134 S.Ct. at 2632 (emphasis in orig-

inal; citations, brackets and quotation marks omitted).

The Court's opinion in Hanson makes it plain that the

error here is in Harris, not in Abood.

In Hanson, this Court reviewed a decision of the

Nebraska Supreme Court holding that a private sec-

tor “union shop agreement violates the First Amend-

ment in that it deprives the employees of their

freedom of association and violates the Fifth Amend-

ment in that it requires the members to pay for many

things besides the cost of collective bargaining.” 351

U.S. at 230. The Hanson plaintiffs “argued that the

union shop agreement forces men into ideological and

political associations which violate their right to free-

dom of conscience, freedom of association, and free-

dom of thought protected by the Bill of Rights.” Jd. at

236. Addressing that argument, Hanson held that so

long as “[t]he financial support required relates . . . to

9

the work of the union in the realm of collective bar-

gaining,” id. at 225, “there is no more an infringement

or impairment of First Amendment rights than there

would be in the case of a lawyer who by state law is

required to be a member of an integrated bar,” id. at

238. Thus, “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{].” /bid.

As the Court later explained, “we ruled in Railway

Employes v. Hanson, 351 U.S. 225 (1956), that be-

cause the RLA pre-empts all state laws, the negotia-

tion and enforcement of [union shop] provisions in

railroad industry contracts involves ‘governmental ac-

tion’ and is therefore subject to constitutional limita-

tions.” Beck, 487 U.S. at 761 (emphasis added). In

other words, Hanson “found that the union's imple-

mentation of the union-shop provision amounted to

state action” on the ground that “such clauses bore

the imprimatur of federal law,” because “the RLA.. .

permits the use of union-shop clauses notwithstand-

ing any law of any state.” White v. Communications

Workers Local 13000, 370 F.3d 346, 352 (3d Cir. 2004)

(emphasis added).* Subjecting those contract provi-

3 We recognize that, in subjecting the union shop agreements

authorized by the Railway Labor Act to First Amendment

scrutiny on that ground, Hanson is out of line with the current

state action analysis. See Jackson v. Metropolitan Edison Co.,

419 U.S. 345, 362 (1974) (Douglas, J., dissenting) (citing Han-

son as contrary to the majority opinion) & 366-67 (Marshall, J.,

dissenting) (same). Mere statutory permission is no longer

deemed a sufficient ground for characterizing private conduct

as state action. Compare Public Utility Comm'n v. Pollak,

343 U.S. 462-63 (1952), with American Mfrs. Mut. Ins. Co. v.

10

sions to constitutional scrutiny, the Court concluded

that any “impingement on First Amendment rights” is

“justified by the governmental interest in industrial

peace.” Ellis, 466 U.S. at 455-56.

In short, Abood was entirely correct in observing,

“while the actions of public employers surely consti-

tute ‘state action,’ the union shop, as authorized by the

Railway Labor Act, also was found to result from gov-

ernmental action in Hanson,” and “(t]he plaintiffs’

claims in Hanson failed, not because there was no

governmental action, but because there was no First

Amendment violation.” 431 U.S. at 226. See also id. at

226-27 n. 23 & 233 n. 29.

2. Abood Correctly Treated the Discussion

in Hanson and Street of the Labor

Relations Interests Served by the Union

Shop Agreements Authorized by the

Railway Labor Act as Relevant to the

Constitutionality of Public Sector Agency

Shop Arrangements.

Abood recognized that “[t])o compel employees fi-

nancially to support their collective-bargaining repre-

sentative has an impact upon their First Amendment

interests,” because “[a]n employee may very well have

ideological objections to a wide variety of activities

undertaken by the union in its role as exclusive rep-

resentative.” 432 U.S. at 222. In considering the con-

Sullivan, 526 U.S. 40, 53-54 (1999). See Hanson, 351 U.S. at 232

(relying on Pollak’s state action analysis). While the state ac-

tion predicate for applying the First Amendment to RLA union

shop agreements no longer holds, the First Amendment analy-

sis in those cases is sound.

il

stitutionality of compelling public employees to fi-

nancially support their collective bargaining repre-

sentative, Abood correctly began from “the judgment

... made in Hanson and Street that such interference

[with First Amendment interests] as exists is consti-

tutionally justified by the legislative assessment of the

important contribution of the union shop to the sys-

tem of labor relations established by Congress” in the

Railway Labor Act. /bid.

In drawing upon Hanson and Street's consideration

of the government interests justifying the Railway

Labor Act union shop, Abood began by explaining the

role of exclusive representation within the labor rela-

tions system established by that statute:

“The principle of exclusive union representation,

which underlies the National Labor Relations Act as

well as the Railway Labor Act, is a central element in

the congressional structuring of industrial relations.

The designation of a single representative avoids the

confusion that would result from attempting to en-

force two or more agreements specifying different

terms and conditions of employment. It prevents

inter-union rivalries from creating dissension within

the work-force and eliminating the advantages to the

employee of collectivization. It also frees the em-

ployer from the possibility of facing conflicting de-

mands from different unions, and permits the

employer and a single union to reach agreements and

settlements that are not subject to attack from rival

labor organizations.” 431 U.S. at 220-21 (footnote and

citations omitted).

Abood then went on to describe the interests served

by allowing employers and unions covered by the RLA

12

to negotiate contract provisions that require covered

employees to contribute to the costs incurred by the

union in its role as exclusive representative:

“The designation of a union as exclusive repre-

sentative carries with it great responsibilities. The

tasks of negotiating and administering a collective-

bargaining agreement and representing the inter-

ests of employees in settling disputes and

processing grievances are continuing and difficult

ones. They often entail expenditure of much time

and money. The services of lawyers, expert nego-

tiators, economists, and a research staff, as well as

general administrative personnel, may be required.

Moreover, in carrying out these duties, the union is

obliged fairly and equitably to represent all em-

ployees..., union and nonunion, within the relevant

unit. A union shop arrangement has been thought

to distribute fairly the cost of these activities

among those who benefit, and it counteracts the in-

centive that employees might otherwise have to be-

come free riders - to refuse to contribute to the

union while obtaining benefits of union representa-

tion that necessarily accrue to all employees.” 431

U.S. at 221-22 (footnote, citations and quotation

marks omitted).

Turning to the public sector collective bargaining

system at hand, Abood observed that “Michigan has

chosen to establish for local government units a reg-

ulatory scheme which, although not identical in every

respect to the NLRA or the Railway Labor Act, is

broadly modeled after federal law,” and that “[t]he

governmental interests advanced by the agency-shop

provision in the Michigan statute are much the same

13

as those promoted by similar provisions in federal

labor law.” 431 U.S. at 223 (footnote omitted) & 224.

The Court explained:

“The confusion and conflict that could arise if rival

teachers’ unions, holding quite different views as to

the proper class hours, class sizes, holidays, tenure

provisions, and grievance procedures, each sought

to obtain the employer’s agreement, are no differ-

ent in kind from the evils that the exclusivity rule

in the Railway Labor Act was designed to avoid.

The desirability of labor peace is no less important

in the public sector, nor is the risk of ‘free riders’

any smaller.” Jd. at 224 (citation omitted).

Noting that, “although Michigan has not adopted

the federal model of labor relations in every respect,

it has determined that labor stability will be served by

a system of exclusive representation and the permis-

sive use of an agency shop in public employment,”

Abood determined that “there can be no principled

basis for according that decision less weight in the

constitutional balance than was given in Hanson to

the congressional judgment reflected in the Railway

Labor Act.” 431 U.S. at 229. With regard to the other

side of the balance, the Court found that “a public em-

ployee [does not have] a weightier First Amendment

interest than a private employee in not being com-

pelled to contribute to the costs of exclusive union

representation” and that “[t]he very real differences

between exclusive-agent collective bargaining in the

public and private sectors are not such as to work any

greater infringement upon the First Amendment in-

terests of public employees.” Jd. at 229-30. Given that

assessment of the competing interests, the Court con-

14

cluded that “insofar as the service charge is used to fi-

nance expenditures by the Union for the purposes of

collective bargaining, contract administration, and

grievance adjustment, [Hanson and Street] appear to

require validation of the agency-shop agreement be-

fore us.” Id. at 225.

While allowing compelled financial support for union

representation within the government employer's labor

relations system, Abood drew the line at employees

being “compelled to make . . . contributions for politi-

cal purposes,” which, the Court found, would be an un-

justified “infringement of their constitutional rights.”

Abood, 431 U.S. at 234. On this ground, Abood con-

cluded that the First Amendment “prohibit[s] the [state]

from requiring [public employees] to contribute to the

support of an ideological cause he may oppose as a

condition of holding a job.” Jd. at 235. Accordingly,

Abood held that, while “a union [may] constitutionally

spend funds for the expression of political views, on

behalf of political candidates, or toward the advance-

ment of other ideological causes not germane to its du-

ties as collective-bargaining representative ... , the

Constitution requires . . . that such expenditures be fi-

nanced from charges, dutes, or assessments paid by em-

ployees who do not object to advancing those ideas and

who are not coerced into doing so against their will by

the threat of loss of government employment.” /d. at

235-36.

Starting from the foundation laid in Hanson and

Street, Abood reached the conclusion that a state’s

“determinat{ion] that labor stability will be served by

a system of exclusive representation and the permis-

sive use of an agency shop in public employment” is of

15

sufficient “weight in the constitutional balance,” 431

U.S. at 229, to justify the “impact upon their First

Amendment interests” of “compel[ling] employees fi-

nancially to support their collective-bargaining repre-

sentative,” id. at 222. Abood then went on to hold that

that state interest is not sufficient to compel financial

support “for the expression of political views, on be-

half of political candidates, or toward the advance-

ment of other ideological causes not germane to [the

union’] duties as collective-bargaining representative.”

Id. at 235. In both regards, Abood had good reason “to

treat [Hanson and Street] as . . . reflecting the consti-

tutional rule.” Lehnert, 500 U.S. at 555 (Scalia, J., dis-

senting in part).

B. Abood Took Careful Account of the

Unique Nature of Public Sector Collec-

tive Bargaining.

Harris maintains that “Abood failed to appreciate

the difference between the core union speech invol-

untarily subsidized by dissenting public-sector em-

ployees and the core union speech involuntarily

funded by their counterparts in the private sector.”

134 S.Ct. at 2632. “[T]he importance of the difference

between bargaining in the public and private sectors

has been driven home,” according to Harris, “[i]n the

years since Abood, as state and local expenditures on

employee wages and benefits have mushroomed.”

Ibid.

Far from ignoring the differences between private

sector and public sector collective bargaining, the

Abood opinion, 431 U.S. at 227-29, engaged in an ex-

tensive and sophisticated consideration of the differ-

ences. In this regard, Abood first notes that, because

16

“[public] services are typically not priced, . . . a public

employer . . . lacks an important discipline against

agreeing to increases in labor costs that in a market

system would require price increases,” and “[a] public-

sector union is correspondingly less concerned that

high prices due to costly wage demands will decrease

output and hence employment.” Jd. at 227-28. Abood

next observes that “[t]he government officials making

decisions as the public ‘employer’ are less likely to act

as a cohesive unit than are managers in private in-

dustry, in part because different levels of public au-

thority . . . are involved, and in part because each

official may respond to a distinctive political con-

stituency.” Jd. at 228. “Finally,” Abood notes that, be-

cause “decisionmaking by a public employer is above

all a political process[,] . . . [t]hrough exercise of their

political influence as part of the electorate, the em-

ployees have the opportunity to affect the decisions

of government representatives who sit on the other

side of the bargaining table” with the result “that per-

mitting public employees to unionize and a union to

bargain as their exclusive representative gives the em-

ployees more influence in the decisionmaking process

than is possessed by employees similarly organized in

the private sector.” Jd. at 228-29.

In short, Abood not only “appreciate[d] the differ-

ence[s]” between private sector and public sector col-

lective bargaining, it examined in detail the policy

arguments as to why extending collective bargaining

rights to public sector employees might be thought to

cause “state and local expenditures on employee

wages and benefits [to] mushroom[].” Harris, 134

S.Ct. at 2632. Despite “[t]he distinctive nature of pub-

lic-sector bargaining,” the critical point for the Abood

17

Court, was that “Michigan . . . has determined that

labor stability will be served by a system of exclusive

representation and the permissive use of an agency

shop in public employment” and “there can be no prin-

cipled basis for according that decision less weight in

the constitutional balance than was given in Hanson

to the congressional judgment reflected in the Rail-

way Labor Act.” 431 U.S. at 229. Equally to the point,

Abood also determined that “(t]he differences be-

tween public- and private-sector collective bargaining

simply do not translate into differences in First

Amendment rights . . . insofar as the service charges

are applied to collective-bargaining, contract admin-

istration, and grievance-adjustment purposes.” Id. at

232.

Harris also criticizes Abood for failing “to have an-

ticipated the magnitude of the practical administra-

tive problems that would result in attempting to

classify public-sector union expenditures as either

‘chargeable’ . . . or nonchargeable.” However, Abood

expressly forecast that there will “be difficult prob-

lems in drawing lines between collective-bargaining

activities, for which contributions may be compelled,

and ideological activities unrelated to collective bar-

gaining, for which such compulsion is prohibited” par-

ticularly “in the public sector [where] the line may be

somewhat hazier.” 431 U.S. at 236. Harris asserts that

“the Court has struggled repeatedly with th[e] issue”

of “classify[ing] public-sector union expenditures as

either ‘chargeable’... or nonchargeable.” 134 S.Ct. at

2633. But of the four cases cited to support that as-

sertion, only two — Locke v. Karass, supra, and Lehn-

ert v. Ferris Faculty Association, supra — concern

classifying public sector union expenditures, and they

18

both indicate a remarkable level of agreement on this

issue. Locke was a unanimous opinion. In Lehnert,

Justice Marshall’s lone dissent concerning lobbying

was the only instance of disagreement among the

members of the Court over classifying activities that

were uniquely related to public sector collective bar-

ming 4

C. First Amendment Scrutiny of Govern-

ment Employment Policies Requires

Weighing the Government’s Reasonable

Assessment of Its Interests Against the

Policies’ Impact on Employees’ First

Amendment Rights.

1. Government Employment Polices

Are Subject to a First Amendment

Balancing Test.

The petitioners assert that public sector agency fee

arrangements “must satisfy exacting scrutiny,” which

requires that such arrangements be “narrowly tailored

to the compelling interests they serve.” Pet. Br. 16

‘ Harris suggests that “[e]mployees who suspect that a union

has improperly put certain expenses in the ‘germane’ category

must bear a heavy burden if they wish to challenge the union’s

actions.” 134 S.Ct. at 2633. Harris fails to take account of the

procedural protections required by Chicago Teachers v. Hud-

son, 475 U.S. 292 (1986). Under Hudson, unions must give

agency fee payers “sufficient information to gauge the propriety

of the union’s fee,” id. at 306, and offer them “a reasonably

prompt opportunity to challenge the amount of the fee before

an impartial decisionmaker,” id. at 310. At that proceeding, “the

union retains the burden of proof” with respect to the propriety

of the fee, id. at 306, and the objecting employee need do noth-

ing more than question the union’s categorization.

19

(capitalized heading in original) & 45. That level of

scrutiny is appropriate where the government “ha/[s]

exercised sovereign power’ in a manner that restricts

free speech but not in “government employment

cases.” Board of Commissioners v. Umbehr, 518 U.S.

668, 678 (1996) (emphasis added). “[T]he balancing

test from Pickering v. Board of Ed. Of Township

High School Dist. 205, [391 U.S. 563 (1968),]” is the

First Amendment standard that generally applies

“where a government employer takes adverse action”

that is alleged to violate “an employee's] . . . right of

free speech.” O’Hare Truck Service, Inc. v. City of

Northlake, 518 U.S. 712, 719 (1996), citing Umbehr,

518 U.S. at 675-78.

Pickering stands for the general proposition that

the government “may impose restraints on the job-re-

lated speech of public employees that would be

plainly unconstitutional if applied to the public at

large” and describes “a balancing test” to be applied

“[w]hen a court is required to determine the validity of

such a restraint.” United States v. National Treasury

Employees Union, 513 U.S. 454, 465-66 (1995). The

Court has explained the rationale for applying a bal-

ancing test in considering First Amendment chal-

lenges to government employment policies as follows:

“Government employees’ First Amendment rights

depend on the balance between the interests of the

employee, as a citizen, in commenting upon matters

of public concern and the interest of the State, as

an employer, in promoting the efficiency of the pub-

lic services it performs through its employees. In

striking that balance, we have concluded that the

government’s interest in achieving its goals as ef-

20

fectively and efficiently as possible is elevated from

a relatively subordinate interest when it acts as

sovereign to a significant one when it acts as em-

ployer. We have, therefore, consistently given

greater deference to government predictions of

harm used to justify restriction of employee speech

than to predictions of harm used to justify restric-

tions on the speech of the public at large.” Umbehr,

518 U.S. at 676 (citations, brackets and quotation

marks omitted).

Petitioners contend that “Pickering’s test governs

workplace discipline for employee speech” but “does

not apply to the sort of categorical, prospective com-

pulsion of political speech and association at issue

here.” Pet. Br. 14 & 47. However, in Treasury Em-

ployees, the Court applied that balancing test in con-

sidering a First Amendment challenge to “a law that

broadly prohibits federal employees from accepting

any compensation for making speeches or writing ar-

ticles[,] . . . even when neither the subject of the

speech or article nor the person or group paying for it

has any connection with the employee's official du-

ties.” 513 U.S. at 457. See also Civil Service Comm'n

v. Letter Carriers, 413 U.S. 548, 564 (1973) (applying

Pickering to a statutory restriction on employee

speech). If anything, “the government's interest in

achieving its goals as effectively and efficiently as pos-

sible,” Umbehr, 518 U.S. at 676, is implicated to a

greater extent where general employment policies are

at issue. See Treasury Employees, 513 U.S. at 468

(“We normally accord a stronger presumption of va-

lidity to a congressional judgment than to an individ-

ual executive's disciplinary action.”).

In short, if “Hanson, Street and Abood” had not al-

21

ready “set forth a general First Amendment principle”

regarding the extent to which the government may re-

quire employees to pay a “service fee” to their union

representative, Locke, 555 U.S. at 213, the question

would be decided by precisely the sort of balancing

test applied in Abood.

2. The State’s Reasonable Determina-

tion of Its Employment Interests

Justifies the Limited Infringement of

First Amendment Rights Implicated

by Requiring Employees to Finan-

cially Support the Collective Bar-

gaining and Grievance-Handling

Activities of Their Union Represen-

tative.

A “proper application of the Pickering balancing

test” requires a “fact-sensitive and deferential weigh-

ing of the government’s legitimate interests,” giving

“substantial deference . . . to the government’s rea-

sonable view of its legitimate interests.” Umbehr, 518

U.S. at 677-78. Under that general First Amendment

test, Abood correctly accorded significant weight to

Michigan's “determin|{ation] that labor stability will be

served by a system of exclusive representation and

the permissive use of an agency shop in public em-

ployment.” 431 U.S. at 229.

To begin with, there is not the slightest doubt that

the government's interest in allowing its employees to

select an exclusive collective bargaining representa-

tive is sufficient to justify the association that is en-

tailed in such a relationship. See Pet. Br. 12. When it

comes to setting the terms and conditions of public

employment, a government employer has, practicapy

22

speaking, only two choices of how to proceed. It can

set the terms unilaterally and let individual employ-

ees choose between working under those terms and

leaving government employment. Or the employer

can set the terms through collective bargaining. If it

chooses the latter course, there are strong practical

reasons for allowing units of similarly situated em-

ployees to choose an exclusive representative in order

to avoid “[t]he confusion and conflict that could arise

if rival . . . unions, holding quite different views as to

the proper [terms] each sought to obtain the em-

ployer’s agreement.” Abood, 431 U.S. at 224. See Har-

ris, 134 S.Ct. at 2640 (acknowledging the

government's interest in dealing with “an exclusive

bargaining agent”).

In Knight v. Minnesota Community College Fac-

ulty Assn., 460 U.S. 1048 (1983), the Court summarily

affirmed a three-judge district court decision that had

“rejected [an] attack on the constitutionality of ex-

clusive representation in bargaining over terms and

conditions of employment, relying chiefly on Abood v.

Detroit Board of Education, 431 U.S. 209 (1977).”

Minnesota State Board for Community Colleges v.

Knight, 465 U.S. 271, 278 (1984). As the Court ex-

plained, “it is rational for the State to give the exclu-

sive representative a unique role in the ‘meet and

negotiate’ process” leading to a collective bargaining

agreement, because “[t]he goal of reaching agreement

makes it imperative for an employer to have before it

only one collective view of its employees when ‘ne-

gotiating.’ See Abood v. Detroit Board of Education,

431 U.S. at 224.” Id. at 291. See also id. at 315-16

(Stevens, J., dissenting in part) (“It is now settled law

that a public employer may negotiate only with the

23

elected representative of its employees, because it

would be impracticable to negotiate simultaneously

with rival labor unions.”).

“The tasks of negotiating and administering a col-

lective-bargaining agreement and representing the in-

terests of employees in settling disputes and

processing grievances are continuing and difficult

ones” that “often entail expenditure of much time and

money.” Abood, 431 U.S. at 221. This fact raises the

practical question of how the exclusive representative

will marshal the financial resources necessary for car-

rying out its assigned role. Abood determined that

“the permissive use of an agency shop” was a reason-

able method of financing exclusive representation.

431 U.S. at 229.°

While there is no First Amendment impediment to

a state financially supporting the exclusive represen-

tative’s collective bargaining activities, the state has

“a strong interest in allocating to the members of the

[bargaining unit], rather than the general public, the

expense of ensuring that [the exclusive representative

can carry out its assigned role].” Harris, 134 S.Ct. at

2644. In the first place, the bargaining unit members

benefit more directly from the representation than

does the general public, so it is reasonable to allocate

the expense to members of the represented group.

Moreover, the state could reasonably conclude that a

conflict of interest might arise were the state or one of

5 As Abood was considering a “permissive use of an agency

shop,” ibid, it obviously did not rely on any “empirical assump-

tion . . . that the principle of exclusive representation in the pub-

lic sector is dependent on a union or agency shop.” Harris, 134

S.Ct. at 2634.

24

its political subdivisions to assume a role in deter-

mining the resources available to the union. Indeed, °

Congress considered the risk of conflicting interests .

to be so grave that made it a crime for an employer‘

covered by the National Labor Relations Act to pro-'

vide financial support to its employees’ union repre-

sentative. 29 U.S.C. § 186(a).

Given that the state has a sufficient interest to jus-

tify establishing a system of collective bargaining and

to justify allocating the costs of that system to the rep-

resented group, the only remaining question is

whether the First Amendment requires the state to al-

locate the costs to only those employees in the repre-

sented group who are voluntary members of the union

chosen as the exclusive representative. Precisely be-

cause “the union is obliged fairly and equitably to rep-

resent all employees..., union and nonunion, within

the relevant unit,” the state could reasonably conclude

that requiring all represented employees to contribute

“distribute[s] fairly the cost of the[ representational]

activities among those who benefit, and . . . counter-

acts the incentive that employees might otherwise

have to become ‘free riders’ — to refuse to contribute

to the union while obtaining benefits of union repre-

sentation that necessarily accrue to all employees.”

Abood, 431 U.S. at 221.

Viewing the collective bargaining system as a

whole, there is no question that “[t]he representation

election, the principle of exclusive representation, and

the union shop together constitute an ingenious set of

devices . . . for overcoming the free-rider problems

that would otherwise plague the union as a large-num-

bers cartel.” Richard A. Posner, Economic Analysis

25

of Law 430 (8th ed. 2011). See Richard Musgrave &

Peggy Musgrave, Public Finance in Theory and Prac-

tice 55-56 (1976) (discussing the problem of “free rid-

ers” with respect to the provision of “social goods”).

The state has a legitimate interest in adopting all three

elements of this set, as Abood held.

While recognizing the state’s legitimate interest

in requiring financial support for the collective bar-

gaining function of the exclusive representative,

Abood also held that “compelled . . . contributions for

political purposes” would be “an infringement of

[employees’] constitutional rights.” Abood, 431

U.S. at 234. Accordingly, while “a union [may]

constitutionally spend funds for the expression of po-

litical views, on behalf of political candidates, or to-

ward the advancement of other ideological causes not

germane to its duties as collective-bargaining repre-

sentative ., , such expenditures [must] be financed

from charges, dues, or assessments paid by employ-

ees who do not object to advancing those ideas.” /d.

at 235-36.

As a direct result of Abood 's limitation on the

agency shop, the free speech interests of the employ-

ees who wish to refrain from financially supporting

the union's collective bargaining activities are quite at-

tenuated. The collective bargaining activities fi-

nanced by agency fees concern the represented

employees’ terms and conditions of employment, and

the communications entailed in that representation

occur within the regulated negotiation and labor rela-

tions processes. Thus, the union communications

that the employees are compelled to financially sup-

port typically are not made in a public forum.

26

“A public employee who believes that a union rep-

resenting him is urging a course that is unwise as a

matter of public policy . . . is largely free to express

his views, in public or privat2, orally or in writing.”

Abood, 431 U.S. at 230. In this very important regard,

agency fee arrangements are completely unlike parti-

san political patronage, which causes public employ-

ees to “feel a significant obligation to support political

positions held by their superiors, and to refrain from

acting on the political views they actually hold.”

Rutan v. Republican Party of Winois, 497 U.S. 62, 73

(1990).

What is more, the employees are not required to

take any action that would personally associate them-

selves with the union's activities. The agency fee is

taken directly out of the employee's pay by the state

without any individual action being necessary. The

deduction is part of the employment conditions just

as union representation is part of the employment

conditions. Thus, the deduction causes no more than

a slight increase in the level of the employee's associ-

ation with the union from that entailed in the union’s

status as exclusive collective bargaining representa-

tive.

The free speech interests implicated by the use of

agency fees to finance collective bargaining are much

narrower than the free speech interests at issue in

United States v. National Treasury Employees

Union, supra, the one case cited by the petitioners in

their very cursory attempt to show that “agency fees’

flunk Pickering.” Pet. Br. 49. See id. at 49-51. Treas-

ury Employees concerned “a law that broadly pro-

hibits federal employees from accepting any

27

compensation for making speeches or writing

articles[,] . . . even when neither the subject of the

speech or article nor the person or group paying for it

has any connection with the employee's official du-

ties.” 513 U.S. at 457. “The speeches and articles for

which [the covered employees] received compensa-

tion in the past were addressed to a public audience,

were made outside the workplace, and involved

content largely unrelated to their Government

employment.” Jd. at 466. The Court concluded that,

“(t]he sweep of [the law] makes the Government's

burden heavy” and that the proffered government in-

terests did not justify the “wholesale deterrent to

a broad category of expression by a massive number

of potential speakers.” /d. at 466-67. The communi-

cations supported by agency fees are rarely addressed

to a public audience, rather, they are addressed almost

exclusively to the government employer and relate

exclusively to government employment. In other

words, the speech involved in collective bargaining

and grievance adjustment is the opposite of the

speech at issue in Treasury Employees in every per-

tinent respect.

“(T]he State’s burden in justifying a particular [em-

ployment practice] varies depending upon the nature

of the employee's expression.” Connick v. Myers, 461

U.S. 138, 150 (1983). The state’s “legitimate interests

as [employer], deferentially viewed, outweigh the free

speech interests at stake,” Umbehr, 518 U.S. at 685,

with regard to compelled financial support of collec-

tive bargaining and grievance adjustment. The con-

stitutional balance struck in Abood is thus completely

consistent with the basic First Amendment law es-

tablished by Pickering.

28

li. ABOOD CORRECTLY HELD THAT THE

FIRST AMENDMENT PROHIBITS THE

EXPENDITURE OF AGENCY FEES ON

NONCHARGEABLE ACTIVITIES ONLY

OVER THE FEE PAYER’S OBJECTION.

In establishing “[t]he constitutional floor for unions’

collection and spending of agency fees,” this Court’s

“cases have repeatedly invoked the following propo-

sition: Dissent is not to be presumed — it must affir-

matively be made known to the union by the

dissenting employee.” Davenport v. Washington Ed-

ucation Association, 551 U.S. 177, 185 (2007) (cita-

tions, quotation marks and brackets omitted). The

petitioners contend that the constitution requires the

opposite, i.e., that agency fee payers be presumed to

dissent to the collection and expenditure of agency

fees on political and ideological activities unrelated to

collective bargaining. Careful consideration of this

Court’s decisions demonstrates that this is not so.

A. Protection of Expressed Dissent Was

Essential to Street’s Limiting Con-

struction of the Railway Labor Act.

The proposition that “dissent is not to be presumed

-- it must affirmatively be made known to the union by

the dissenting employee,” Street, 367 U.S. at 774, was

an essential aspect of Street's “hold[ing] . . . that [RLA]

§ 2, Eleventh is to be construed to deny the unions,

over an employee's objection, the power to use his ex-

acted funds to support political causes which he op-

poses,” id., at 768-69, an interpretation that the Court

adopted in order to avoid serious First Amendment

questions. See Air Line Pilots v. Miller, 523 U.S. 866,

87 (1998) (“To avoid constitutional questions . . . , we

29

have held that costs unrelated to those representative

duties may not be imposed on objecting employees.”).

“(T]he Street Court construed the RLA to deny unions

the authority to expend dissenters’ funds in support of

political causes to which those employees objected”

based on the Court’s express “[r]ecogni[tion] that, in

enacting § 2 Eleventh of the RLA, Congress sought to

protect the expressive freedom of dissenting em-

ployees while promoting collective representation,”

Lehnert, 500 U.S. at 515 (emphasis added). Thus, pro-

tection of dissent — “protection for an employee who

disagreed with union policies or leadership,” Street,

367 U.S. at 765 - was an essential aspect of Street’s

construction of the RLA.

Knox v. Service Employees Local 1000, 132 S.Ct.

2277, 2290 (2012), characterizes this aspect of Street

as “dicta” and nothing more than an “offhand remark”

made “in passing.” Those statements concerning

Street are themselves dicta, as Knox did not concern

the interpretation of the Railway Labor Act.® They are

also completely inaccurate.

The language of RLA § 2, Eleventh contains not the

slightest suggestion that employees covered by a per-

mitted union shop agreement can opt out of paying

the normal union dues, fees and assessments. To the

contrary, the statute states that covered employers

and unions may enter into agreements requiring

6 Knox addressed “whether the First Amendment allows a

public-sector union to require objecting nonmembers to pay a

special fee for the purpose of financing the union's political and

ideological activities.” 132 S.Ct. at 2284. In deciding that ques-

tion, the Court expressly refrained from reconsidering its prior

decisions regarding the expression of dissent. Jd. at 2289.

30

employees to “become members of the labor

organization representing their class or craft” by “ten-

der[ing] the periodic dues, initiation fees, and assess-

ments (not including fines and penalties) uniformly

required as a condition of acquiring or retaining mem-

bership.” 45 U.S.C. § 152, Eleventh(a). By providing

that all covered employees must “tender the periodic

dues, initiation fees, and assessments . . . uniformly

required as a condition of acquiring or retaining mem-

bership” and excluding from the required exactions

only “fines and penalties,” the terms of § 2, Eleventh

make it exceedingly clear that the amount that must

be tendered is the full amount an employee would

have to pay to become and remain a member of the

union.

Street's “hold[ing] . . . that § 2, Eleventh is to be

construed to deny the unions, over an employee's

objection, the power to use his exacted funds to

support political causes he opposes,” 367 U.S. at

768-69, is the culmination of a long section of the opin-

ion headed, “THE SAFEGUARDING OF RIGHTS OF

DISSENT,” id. at 765. See id. at 765-70. From a careful

examination of § 2, Eleventh’s legislative history,

Street found that “[a] congressional concern over pos-

sible impingement on the interests of individual dis-

senters from union policies is . . . discernible.” Jd. at

766. That background allowed the Court to conclude

that “Congress incorporated safeguards in the statute

to protect dissenters’ interests.” Jd. at 765. On that

basis, the Court asserted that it was only “respect/ing]

this congressional purpose when [it] construe[d] § 2,

Eleventh as not vesting the unions with unlimited

power to spend exacted money” and as “denying the

unions the right, over the employee's objection, to use

31

his money to support political causes which he op-

poses.” Id. 768.’

The proposition that “dissent is not to be presumed

— it must affirmatively be made known to the union by

the dissenting employee” follows directly from the

Court’s understanding that “[t]he safeguards of § 2,

Eleventh were added for the protection of dissenters’

interests.” Street, 367 U.S. at 774. It also follows that

“an employee who makes no complaint of the use of

his money for . . . political uses” has no claim against

the union for making such expenditures. [bid.

Street’s holding that “dissent is not to be presumed,”

367 U.S. at 774, was, to be sure, a construction of the

Railway Labor Act. However, as the Abood Court

noted, “Street embraced an interpretation of the Rail-

way Labor Act not without its difficulties, see 367 U.S.

at 784-786 (Black, J., dissenting); id. at 799-803 (Frank-

furter, J., dissenting), precisely to avoid facing the

constitutional issues presented by the use of union-

shop dues for political and ideological purposes un-

related to collective bargaining, id. at 749-50.” Abood,

431 U.S. at 232. Street avoided addressing “the issue

of the use of exacted money for political causes which

were opposed by the employees,” 367 U.S. at 749,

7 The Court has found Street's construction of RLA § 2,

Eleventh to be “controlling” with regard to the construction of

§ 8(a)(3) of the National Labor Relations Act. Communications

Workers v. Beck, 487 U.S. 735, 745 (1988). Accordingly, in Beck,

the Court “held that § 8(a)(3) allows unions to collect and ex-

pend funds over the objection of nonmembers only to the extent

they are used for collective bargaining, contract administration,

and grievance adjustment activities.” Marquez v. Screen Actors

Guild, 525 U.S. 33, 36 (1998).

32

through a “construction” of the Railway Labor Act

“which denies the authority to a union, over the em-

ployee’s objection, to spend his money for political

causes which he opposes,” id. at 750. The Abood

Court thus had good grounds for concluding that

Street's construction of the Railway Labor Act — in-

cluding the “proposition: ‘[D]issent is not to be pre-

sumed” — established “[t]he constitutional floor for

unions’ collection and spending of agency fees.” Dav-

enport, 551 U.S. at 185.

B. Protection of Express Dissent is

Consistent with the First Amendment

Limitations on Compelled Speech.

It follows from basic First Amendment principles,

as well as from the holding of Street, that nothing

more is required than allowing a fee payer to avoid

subsidizing nonrepresentational union expenditures

by expressing dissent.

The basic constitutional analysis has been suc-

cinctly summarized by the Court as follows:

“Just as the First Amendment may prevent the

government from prohibiting speech, the Amend-

ment may prevent the government from compelling

individuals to express certain views, see Wooley v.

Maynard, 430 U.S. 705, 714 (1977); West Virginia

Bad. of Ed. v. Barnette, 319 U.S. 624 (1943), or from

compelling certain individuals to pay subsidies

for speech to which they object. See Abood v.

Detroit Bd. of Ed., 431 U.S. 209 (1977); Keller v.

State Bar of Cal., 496 U.S. 1 (1990).” U.S. Dept. of

Agriculture v. United Foods, Inc., 533 U.S. 405, 410

(2001).

33

This Court has elaborated on the relationship be-

tween the “compelled-subsidy” cases and the “com-

pelled-speech” cases, as follows:

“We have sustained First Amendment challenges

to allegedly compelled expression in two categories

of cases: true ‘compelled-speech’ cases, in which an

individual is obliged personally to express a mes-

sage he disagrees with, imposed by the government;

and ‘compelled-subsidy’ cases, in which an individ-

ual is required by the government to subsidize a

message he disagrees with, expressed by a private

entity. * * *

“We first invalidated an outright compulsion of

speech in West Virginia Bad. of Ed. v. Barnette, 319

U.S. 624 (1943). The State required every school-

child to recite the Pledge of Allegiance while salut-

ing the American flag, on pain of expulsion from the

public schools. We held that the First Amendment

does not ‘leave it open to public authorities to com-

pel [a person] to utter’ a message with which he

does not agree. /d., at 634. Likewise, in Wooley v.

Maynard, 430 U.S. 705 (1977), we held that requir-

ing a New Hampshire couple to bear the State’s

motto, ‘Live Free or Die,’ on their cars’ license

plates was an impermissible compulsion of expres-

sion. Obliging people to ‘use their private property

as a “mobile billboard” for the State’s ideological

message’ amounted to impermissible compelled ex-

pression. Id., at 715.

“The reasoning of these compelled-speech cases

has been carried over to certain instances in which

individuals are compelled not to speak, but to sub-

sidize a private message with which they disagree.

34

Thus, although we have upheld state-imposed re-

quirements that lawyers be members of the state

bar and pay its annual dues, and that public school

teachers either join the labor union representing

their ‘shop’ or pay ‘service fees’ equal to the union

dues, we have invalidated the use of the compul-

sory fees to fund speech on political matters. See

Keller v. State Bar of Cal., 496 U.S. 1 (1990); Abood

v. Detroit Bd. of Ed., 431 U.S. 209 (1977). Bar or

union speech with such content, we held, was not

germane to the regulatory interests that justified

compelled membership, and accordingly, making

those who disagreed with it pay for it violated the

First Amendment. See Keller, supra, at 15-16;

Abood, supra, at 234-235.” Johanns v. Livestock

Mktg. Ass'n, 544 U.S. 550, 557-558 (2005).

It goes without saying that for “an individual [to be]

obliged personally to express a message he disagrees

with, imposed by the government,” is a greater im-

‘pingement upon free speech interests than for “an in-

dividual [to be] required by the government to

subsidize a message he disagrees with, expressed by

a private entity.” Johanns, 544 U.S. at 557. Yet, there

is nothing in Barnette to suggest that the First Amend-

ment requires a school teacher to say, “All who feel

ike it, may now say the Pledge of Allegiance,” instead

of simply, “All rise for the Pledge of Allegiance.” Nor

is there anything in Wooley to suggest that the State

of New Hampshire must leave a blank spot on its li-

cense plates where the state motto may be affixed by

automobile owners who wish to do so. Rather, all that

is required in both circumstances is that those who

wish to refrain from uttering the prescribed message

be given a reasonable opportunity to refrain from

35

doing so. The same principle applies in situations

where the government requires the payment of fees

to subsidize the activities of a private organization,

such as a labor union or a bar association. So long as

the fee payer is given a reasonable opportunity to ex-

press dissent and refrain from subsidizing the non-

chargeable activity, the First Amendment is satisfied,

as Street and Abood both held.

The burden on the petitioners of expressing their

dissent to the payment of agency fee for purposes

other than collective bargaining is much less than that

faced by a school child whose religious principles re-

quire her to refrain from pleading allegiance to the flag

of the United States or a resident of New Hampshire

who wishes to refrain from displaying the state motto

on his automobile. Just so long as the petitioners are

accorded the opportunity to effectively dissent, their

First Amendment rights have been satisfied.

36

CONCLUSION

The judgment of the court of appeals should be af-

Respectfully submitted,

Of Counsel: LYNN K. RHINEHART

LAURENCE GOLD HAROLD C. BECKER

805 Fifteenth Street, NW JAMES B. Coppess

Washington, DC 20005 (Counsel of Record)

815 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5337

jcoppess@aficio.org

WILLIAM LURYE

MATTHEW S. BLUMIN

1101 Seventeenth Street, NW

Washington, DC 20036