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

MOV 13924

No. 14-915 LOC one

In the Supreme Court of the Anited States

REBECCA FRIEDRICHS, et al.,

Petitioners,

Vv.

CALIFORNIA TEACHERS ASSOCIATION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF STEVE BULLOCK,

GOVERNOR OF MONTANA,

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

KARL ENGLUND DEEPAK GUPTA

Kari J. Englund, P.C. Counsel of Record

401 North Washington Street MATTHEW W.H. WESSLER

P.O. Box 8358 Gupta Wessler PLLC

Missoula, MT 59807 1735 20th Street, NW

(406) 721-2729 Washington, DC 20009

(202) 888-1741

deepak@guptawessler.com

Counsel for Amicus Steve Bullock, Governor of Montana

November 13, 2015

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TABLE OF CONTENTS

I iiisctiesiniceceinniinnniinciniensinscpieninianitinininnenniae il

er II caittincsicceccrsissnnsictincnendiiannsiscnsonenasnnsiiee 1

TT shcrccikieiiniiabstiasiocieimnissiniisieesippccessaspdictianpemnaiciiniliiiienstets 1

re i eininessininctcatenstarscceninsiniainsensinepinnntasiinitintia 4

SEIT is isis cesiiccciaiincipahdnciiniiteshianibasinianapanatinnictiinigiiieenniel 5

I. Montana’s sovereign authority to structure

its own government programs is well

SIE: ‘sisisariiiuisstiiceiadinbiidiiavebeintaiinaiendioieineed 5

II. Montana’s longstanding reliance on its

freedom to organize relations with its State

labor force is constitutional. .................:ccsseeeseeeeees 11

A. A collective-bargaining system that

includes exclusive representation and

agency fees serves important State

TUTE cnncisiadseasianiiitsstntetiaienssdabiainnnpnesincssnstins 13

B. Montana has a strong interest in

maintaining its system of exclusive

II: cxcieiesnitecnnicriciciincsmnuinsinnmuctnnsiaions 15

EER A eevee ene ve eNO ST RMT ve RVR TT ORO 18

-ii-

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

I ceenintrsnineronepncenineninemesanesite passim

Allied Stores of Ohio v. Bowers,

ET 12

Bonner School District No. 14 v. Bonner

Education Association,

I 10

Borough of Duryea, Pennsylvania v. Guarnieri,

RR a 12

Broadrick v. Oklahoma,

EERE eA 12

Burlington Northern Railroad Co. v. Brotherhood of

Maintenance of Way Employees,

gE SC a 7

Civil Service Commission v. Letter Carriers,

| SESE EI Renee ae one 12

Communications Workers of America v. Beck,

I lilt 8

Davenport v. Washington Education Association,

ee Se ee nniciichiininicsipnincintnietitiviiinlianitimstenitaanneieed 8,9

Ellis v. Brotherhood of Railway, Airline and

Steamship Clerks, Freight Handlers,

Express and Station Employees,

I ietedeiicilantiieiiisiaisnepanictmsinnsininisinenteupead 8,9

-jii-

Emporium Capwell Co. v. Western Addition

Community Organization,

a as ee iaitntitincernnittiiinininainimel 8

Engquist v. Oregon Department of Agriculture,

Se a CS Ie insicinineicnstntsnsieiniicibipiseumpastinninaanld 6, 9, 12

Equal Employment Opportunity Commission v.

Wyoming,

SF I citinsininsitincicscinieiapialiiistindiniealintaieat 5, 6

First National Maintenance Corp. v. National

Labor Relations Board,

a ee ee iiesnitinitniiecsiscciciccnsacsinctinnteninaiemensiiaias 8

Ford v. University of Montana,

ee 11

Garcetti v. Ceballos,

a Te Se eninsseninitinintnnepiensnnadiisaaiain 5, 12

Gregory v. Ashcroft,

ee le SI cisntsinccenncntniepniciiiniisindiiiaiiidipniaiaieal 6

International Association of Machinists v. Street,

a ee See ictintitiesintinctensniiesstaiinaacalitaiaiiniaal 7,8,9

Katzenbach v. Morgan,

ee ee i itcicerscstcrsicccdaameneineiiaiintaiaatedtinedl 12

Lincoln Federal Labor Union No. 19129, American

Federation of Labor v. Northwestern Iron &

Metal Co.,

En eee vee 7

National Labor Relations Board v. Jones &

Laughlin Steel Corp.,

Be i ae Ott icceccctissainihassinsnenctubtentesienitinctencdaiatanatta tibial -

-jv-

Railway Employees’ Department v. Hanson,

ee 7

Reeves, Inc. v. Stake,

Te eS 13

Roth v. United States,

TE a 5

San Antonio Independent School District v. Rodriguez,

EEE 2 12

Teamsters Local No. 45 v. State,

TS EER ll

Texas v. White,

ET 6

United Public Workers v. Mitchell,

ET 12

Waters v. Churchill,

EEE 6

Statutes

Se 7

Ee ll

EERE EE 7

EER RC 11

SEE SC ene ee 7

EGTRRA PSC Le Oe Ra 7

Mont. Code Ann. § 39-31-1021 oo... cece ccccceeccceceeeeeees 3, 10

Mont. Code Ann. § 39-31-20] ................cccecceccceccceeeeceseeees ll

-V-

Mont. Code Ann. § 39-31-20B.................c.cececscsscssessseeseeees 1]

Mont. Code Ann. § 39-31-208(5) ............ccsscsecersesesereeseees 11

Mont. Code Ann. § 39-31-401(3) ..............cccccccscsseeseeeeees 4,11

Miscellaneous

14 Men Shot in Butte Strike, Great Falls Daily

ee He as SE cctereeternsetteninetmnsiemennennneti 2

A.C.M. Gunmen Under Personal Direction of

Roy Alley Shoot Down Miners In Cold

Blood on Anaconda Rd, The Butte Daily

I scciumisieniai 2

Alley Openly Urges Murder, The Butte Daily

ne 2

Dan Boyce, Montana’s State-Run Free Clinic

Sees Early Success, Montana Public Radio,

Dan Boyce, Senate Passes First State Employee

Base Pay Raises in Four Years, Montana

Public Media, Apr. 16, 2013. ...........c..sssssssssssssesseeeseeee 14

Butte Shocked by Unwarranted Slaughter of

Unarmed Workers by Alley and A.C.M. Gun-

Thugs, The Butte Daily Bulletin, Apr. 22, 1920. ......... l

Collective Bargaining Agreement Between

Montana Public Employees Association and

the Montana University System, July 1, 2013

Susan Dunlap, Health Center for State Employees

Opens in Anaconda, The Montana Standard,

ee 15

-vi-

First of Victims of A.C.M. Murderers To Die

Shown Last Honor, The Butte Daily

Se I SII ccinientcsnctiemnuccatennsimmenemintetmeecannel 2

Hearing on H.B. 13 Before the Montana House

Appropriations Committee (January 23,

Robert Hebdon and Robert Stern, Do Public-

Sector Strike Bans Really Prevent Conflict ?,

Industrial Relations, Vol. 42, No. 3 (July

RE ee TS 14

Charles Johnson, Barrett Working with Unions

to Put Pension Funds to Work, Montana

I SS SING CRUNES cxengeenmsieenstisensnatesemnteggeesens 15

Charles Johnson, Right-to-Work Bill Draws No

Support Except for Sponsor, Missoulian,

ED Ratiitatnenteapetscteminnnmiancngineengeioel 17

State and Union Official Discuss Investing Union

Funds, Associated Press, Mar. 29, 2005. .................... 15

The Federalist No. 45 (James Madison) (C.

ETERS A 6

Dave Walter, More Montana Campfire Tales:

Fifteen Historical Narratives (2002) ...................-+- 1,2

Jeffrey Zax and Casey Ichniowski, The Effects of

Public Sector Unionism on Pay,

Employment, Department Budgets, and

Municipal Expenditures, in When Public

Sector Workers Unionize (1988). ..............s-cseseesesnevenes 14

iS.

INTEREST OF AMICUS CURIAE’

Steve Bullock, the Governor of Montana, files this

brief to inform the Court about Montana’s unique labor

history and explain how the State’s sovereignty is at

stake in this case. Montana’s collective-bargaining sys-

tem has been crucial to ensuring labor peace in the

State’s public sector and to securing essential public

services for all Montanans. Governor Bullock files this

brief as the State’s chief executive, charged with super-

vising the conduct of the executive officers he appoints

and the administration of the departments those appoin-

tees oversee. As chief executive, he has a strong interest

in avoiding the significant disruption that would occur if

agency-fee arrangements were invalidated by this Court.

STATEMENT

In the dying light of late afternoon on April 21, 1920,

hundreds of miners gathered on Anaconda Road—

outside the Anaconda Copper Mining Company’s Ne-

versweat Mine, just a few blocks east of the courthouse

in Butte, Montana—to strike. Their demands were sim-

ple: higher wages, an eight-hour day, and an end to “rus-

tling cards,” a work-permitting system that allowed

employers to blacklist workers from the mines.’

Tensions that day were already high. The previous

morning’s copy of the Butte Daily Bulletin reported that

a company lawyer and the mine owner’s personal secre-

' All parties consent to this brief, and ne party’s counsel au-

thored it in whole or part. Apart from amici, no person contributed

money to fund its preparation or submission.

* Butte Shocked by Unwarranted Slaughter of Unarmed Work-

ers by Alley and A.C.M. Gun-Thugs, The Butte Daily Bulletin, Apr.

22, 1920, http://1.usa.gov/IHyDXt0; Dave Walter, More Montana

Campfire Tales: Fifteen Historical Narratives 215-17 (2002).

-2.

tary had suggested that “some more killings and hang-

ings” would swiftly end any unrest.’ And the county

sheriff had “deputized” mine guards in an effort to con-

tain the strike.‘ For their part, the striking miners pre-

vented any willing workers from entering the mine—

possibly with threats of violence. Several skirmishes

broke out across the picket line.°

Strike leaders, company management, and police

tried to mediate the dispute. Several times, the miners

began to disperse only to be called back by their leaders.

It was hard to know if progress was being made. Then,

suddenly, gunfire rang out as bullets ripped through the

crowd. All told, over a hundred shots were fired. People

fled from the violence, but at least fourteen mine work-

ers were shot, and one died.° Eyewitness and newspaper

accounts yield no clear consensus on who shouldered the

blame for what is known in Montana lore as the “Ana-

conda Road Massacre.” The culprits were never pun-

ished.

Montana has a rich and unique labor history. Some

of the earliest unions in the country were founded in the

mines outside of Butte. And the Butte Teachers Union,

* Alley Openly Urges Murder, The Butte Daily Bulletin, Apr.

20, 1920, http://1.usa.gov/IMAyy4Y

* ACM. Gunmen Under Personal Direction of Roy Alley

Shoot Down Miners In Cold Blood on Anaconda Rd, The Butte

Daily Bulletin, Apr. 22, 1920, http://1.usa.gov/1 Y4vjH4.

* 14 Men Shot in Butte Strike, Great Faillls Daily Tribune, Apr.

22, 1920, http://1.usa.gov/1IIXHq1.

° First of Victims of ACM. Murderers To Die Shown Last

Honor, The Butte Daily Bulletin, Apr. 28, 1920,

http://1.usa.gov/1 HyEtHs

’ Walter, Fifteen Historiwal Narratives at 215-17.

-3-

AFT Local No. 332, negotiated the first public-employee

labor agreement in America in 1935. Yet, for years, labor

unrest plagued the State. A patchwork of fractious and

competitive unions long dotted the public- and private-

sector landscape, making it difficult for employers—the

State included—to effectively negotiate terms and condi-

tions for their workers. And paralyzing strikes and work

stoppages were commonplace. Although the Anaconda

Road Massacre was one of the State’s bloodiest strikes,

it was by no means its last.

In the 1970s, the State went hunting for a better sys-

tem. Like many other States, Montana turned to the

federal model of collective bargaining, first adopted by

Congress in the 1930s, as a template that could be tai-

lored to fit the State’s particular needs. Under this

scheme, a process of collective bargaining founded on

exclusive representation governs labor relations. To

protect the effective operation of the exclusive represen-

tation system, federal law also authorized “agency shop”

agreements requiring all represented employees to pay

fees to cover costs of collective bargaining. These fees,

however, could only be used to compensate the union for

actual collective-bargaining-related activities; they could

not fund unrelated political lobbying.

In 1973, Montana adopted a similar approach for its

State employees. In its view, a framework patterned on

the federal system would “promote public business by

removing certain recognized sources of strife and un-

rest” and encourage “the practice and procedure of

collective bargaining to arrive at friendly adjustment of

all disputes between public employers and their employ-

ees.” Mont. Code Ann. § 39-31-101. As under federal law,

when a majority of public employees in an administra-

tively determined bargaining unit vote to unionize, that

-4-

union becomes the exclusive representative of those

employees.

But, as one would expect in a federalist model of

government, Montana’s system differs from that of Cali-

fornia and other states in certain respects. For example,

although agency fees are permitted, they are not man-

dated in Montana; through a collective-bargaining pro-

cess, parties may mutually agree to add or strike such a

requirement from their contract. Mont. Code Ann. § 39-

31-401(3).

In the forty-plus years since its enactment, Mon-

tana’s public sector collective-bargaining system has

delivered on its promise. It has allowed Montana to

provide uninterrupted public services—from education

to prisons to snow removal—at considerably lower cost

than the national average.

Montana remains firmly committed to its model col-

lective-bargaining system for public employees. Alt-

hough the Legislature often considers other regulatory

options—a _ right-to-work bill, for instance, has been

introduced in nearly every legislative session for years—

Montanans of every political and economic stripe have

roundly rejected these efforts for one main reason: Pub-

lic unions now play a fundamental roie in Montana’s

ability to govern itself effectively and efficiently.

SUMMARY OF ARGUMENT

Under our system of dual sovereignty, States are

endowed with all the functions essential to a separate

and independent existence. Chief among these func-

tions—elevated above even the authority to regulate its

citizens—is a State’s power to structure labor relations

with its employees. That interest is, as Justice Powell put

it, “as sovereign a power as any a State possesses.”

-5-

EEOC v. Wyoming, 460 U.S. 226, 269 n.5 (1983) (Powell,

J., dissenting).

This Court has long recognized that the core chal-

lenge of establishing an appropriate, State-specific labor-

relations system is best left to the wisdom of the States.

See Abood v. Detroit Bd. of Ed., 431 U.S. 209, 222-23

(1977). Not only does that judgment reflect the interests

at stake when a State acts as employer, but it advances

one the key lessons of federalism—that “one of the great

strengths of our federal system is that we have, in the

forty-eight States, forty-eight experimental laborato-

ries.” Roth v. United States, 354 U.S. 476, 505 (1957)

(Harlan, J., concurring and dissenting).

Montana has faithfully relied on these lessons. In

1973, it chose to establish a labor-relations system for

public-sector employees premised on the model embod-

ied in the National Labor Relation Act. And the system

has worked: After many years of labor unrest, Montana

has now experienced decades of labor stability in the

public sector. The First Amendment does not prohibit

this type of State-management decision. Instead, this

Court has recognized that public employers may regu-

late even core First Amendment activities when they

have sufficient interest as an employer in doing so. Gar-

cetti v Ceballos, 547 U.S. 410, 423 (2006). Montana’s

interest—as employer—in tailoring its public-

employment labor-relations system to its needs more

than justifies a modest intrusion into a public employee’s

speech activities.

ARGUMENT

I. Montana’s sovereign authority to structure its

own government programs is well established.

A. “As every schoolchild learns, our Constitution es-

tablishes a system of dual sovereignty between the

--

States and the Federal Government.” Gregory v. Ash-

croft, 501 U.S. 452, 457 (1991). This foundational princi-

ple offers “numerous advantages.” Jd. at 458. It “assures

a decentralized government,” encourages “more innova-

tion and experimentation in government,” and “makes

government more responsive by putting the States in

competition for a mobile citizenry.” Jd.

Although one can “fairly dispute” whether, in certain

respects, our “federalist system” has succeeded, there is

“no doubt about its design.” Jd. at 459. States are “en-

dowed with all the functions essential to separate and

independent existence.” Texas v. White, 74 U.S. 700, 725

(1868). As James Madison put it, the “powers reserved in

the State governments” extend “to all objects which, in

the ordinary course of affairs, concern the lives, liberties,

and properties of the people, and the internal order,

improvement, and prosperity of the State.” The Federal-

ist No. 45, pp. 292-93 (C. Rossiter ed. 1961).

Of those powers reserved to States, the authority to

structure labor relations with its employees “is as sover-

eign a power as any that a State possesses.” EEOC v.

Wyoming, 460 U.S. 226, 269 n.5 (1983) (Powell, J., dis-

senting). This Court has “long held” that the “govern-

ment as employer” has “far broader powers than does

the government as sovereign.” Engquist v. Ore. Dep't of

Ag., 553 U.S. 591, 598 (2008) (quoting Waters v. Church-

ill, 511 U.S. 661, 671 (1994) (plurality opinion)). A State’s

“extra power” to regulate its labor relations derives from

the “the nature of the government’s mission as employ-

er.” Waters, 511 U.S. at 674-75. To do its job, State gov-

ernments must hire workers, and, to de that well, the

State must be allowed to structure its labor relations “as

effectively and efficiently as possible.” /d.

-7-

B. That is why both Congress and this Court have

repeatedly recognized not only that States retain broad

authority over the basic structures of State and local

labor relations, but also that exclusive-representation

labor models accompanied by “agency-fee” authorization

are appropriate. See e.g., 29 U.S.C. § 151, et seg. (Nation-

al Labor Relations Act) (specifically excluding State

governments from the term “employer”); 29 U.S.C. §

158, et seg. (LMRA) (same); Lincoln Federal Labor

Union No. 19129, Am. Fed’n of Labor v. Nw. Iron &

Metal Co., 335 U.S. 525, 536 (1949); Abood v. Detroit Bd.

of Ed., 431 U.S. 209, 222-23 (1977).

1. Congress was first to act. Beginning in 1926,

“{flollowing decades of labor unrest” in the railroad

industry, Congress passed the Railway Labor Act, 45

U.S.C. § 151, to “create[) a system for dispute resolu-

tion.” Burlington N. R.R. Co. v. Bhd. of Maint. of Way

Employees, 481 U.S. 429, 444 (1987). At the heart of this

system was a model of exclusive representation: “[{I]n

recognition of the expenses and burdens incurred by the

unions,” the RLA enabled workers to select one union

that would serve as their exclusive representative in

collective-bargaining negotiations. The law also imposed

a corresponding duty on the union to represent all em-

ployees fairly, in good faith, and without discrimination.

See Int'l Ass’n of Machinists v. Street, 367 U.S. 740, 750-

60 (1961). As amended, the RLA specifically authorizes

“union-shop” arrangements and includes provisions

requiring workers to pay fees to the union designated as

their exclusive-bargaining representative as a condition

of continued employment. 45 U.S.C. § 152; See also Ry.

Emp. Dept. v. Hanson, 351 U.S. 225, 231 (1956).

Congress carried that framework forward when, in

1935, it passed the National Labor Relations Act—one of

-8-

the most far-reaching federal laws regulating private-

sector labor relations. As with the RLA, Congress

sought to end labor strife and to reduce the need for

labor strikes by fostering a collective-bargaining pro-

cess. And Congress once again selected a system found-

ed on exclusive representation as the best model for

achieving labor peace. See First Natl Maint. Corp. v.

NLRB, 452 U.S. 666, 674-75 (1981). To protect the effec-

tive operation of the exclusive-representation system,

the NLRA also authorized “agency shop” agreements

requiring all represented employees to pay fees to cover

costs of collective bargaining. See Commc’ns Workers of

Am. v. Beck, 487 U.S. 735, 738 & 744-45 (1988). But these

agency fees could not fund unrelated political lobbying;

instead, they could only compensate the union for actual

collective-bargaining-related activities. Street, 367 U.S.

at 749.

2. This Court, too, has repeatedly recognized the

important interests in excluSive representation in both

the private and public sectors. See, e.g., NLRB v. Jones

& Laughlin Steel Corp., 301 U.S. 1, 33-34 (1937); Empo-

rium Capwell Co. v. W. Addition Cmty. Org., 420 U.S.

50, 62 (1975); Ellis v. Bhd. of Ry., Airline and SS.

Clerks, Freight Handlers, Exp. and Station Emps., 466

U.S. 435, 448 (1984); see also Abood, 431 U.S. at 220-21;

Davenport v. Wash. Educ. Assoc., 551 U.S. 177, 181

(2007).

On the federal side, this Court has shown unwaver-

ing support for the exclusive-representation approach.

In Street, for instance, the Court explained that exclusive

representation gives unions “a clearly defined and delin-

eated role” in “stabilizing labor relations in [an] indus-

try.” 367 U.S. at 760. Its “purpose” is to “secur[e] self-

adjustment” between an “effectively organized” industry

-9-

and an “equally effective” union while eliminating the

problem of inter-union rivalries, which “undermine”

employees’ “participation in the process of collective

bargaining.” Jd. Exclusive representation accomplishes

these objectives, this Court has held, by conferring upon

one designated union “the status of exclusive representa-

tives in the negotiation and administration of collective

agreements,” and entitling it to “representation on the

statutory board to adjudicate grievances.” /d.

So too with the funding mechanisms that exclusive-

representation models employ. “Performance of [a un-

ion’s] functions” as an exclusive bargaining representa-

tive “entails the expenditure of considerable funds.” /d.

To comprehensively “perform[] their duties” in the

scheme, “fairness justified the spreading of the costs to

all employees who benefited.” /d. at 761. Eliminating the

“free rider” problem is, therefore, an “essential justifica-

tion” for union fees. Ellis, 466 U.S. 447. But this Court

has confirmed Congress’s requirement that chargeable

activities must be germane to collective-bargaining activ-

ity; they cannot include unrelated political lobbying.

Street, 367 U.S. at 764.

And, when it comes to State decisions to “authorize a

union and a government employer to enter into” exclu-

sive-representation agreements, this Court has been no

less clear: They are legitimate exercises of a State’s

authority to “regulate [its] labor relationships.” Daven-

port, 551 U.S. at 181. After all, “[t]he desirability of labor

peace is no less important” either at the State level or

within the public sector. Abood, 431 U.S. at 224. In fact, a

State’s interest in “effectively and efficiently” managing

its workforce—when it “acts as employer,” in other

words—is “elevated” even over its interests when it “acts

as sovereign.” Engquist, 553 U.S. 598.

-10-

For States that establish “rights parallel to those

protected under federal legislation,” the “interests”

supporting such a regime are “much the same as those

promoted by similar provisions in federal labor law.”

Abood, 431 U.S. at 223-224 The “confusion and conflict”

that would arise if “rival” unions “each sought to obtain

the employer’s agreement” are “no different in kind

from the evils” diagnosed in federal contexts. /d. And the

“risk of ‘free riders” is no “smaller.” Jd. So States re-

main free to use exclusive-representation models, includ-

ing agency-fee rules, that are patterned on those sanc-

tioned under federal law. Jd. at 231-32.

C. Montana has faithfully applied these lessons at

home. In 1973, after decades of unsettled labor relations,

the State established a comprehensive public-sector

labor-relations scheme designed to “promote public

business by removing certain recognized sources of

strife and unrest.” 1973 Mont. Laws Sec. 1, Ch. 441;

codified at Mont. Code Ann. § 39-31-101 (2015). The law’s

objective was to “encourage[] the practice and procedure

of collective bargaining to arrive at friendly adjustment

of all disputes between public employers and their em-

ployees.” Jd.

And Montana found that federal law provided an at-

tractive blueprint: While not identical, the Montana

Collective-Bargaining Act (MCA) is patterned on the

NLRA. See Bonner School Dist. No. 14 v. Bonner Educ.

Ass'n, 176 P.3d 262, 265-67 (Mont. 2008) (using the

NLRA as an “aid to interpretation”). Under the MCA,

rank-and-file employees of State and local governments

enjoy rights parallel to those protected under federal

legislation: the rights to organize themselves; to join,

form, and assist a labor organization; to bargain collec-

tively; and to engage in secret-ballot representation

-11-

elections. Compare § 39-31-201, § 208 with 29 U.S.C.

§ 157, § 159 (e)(1).

The similarities between the MCA and federal law

don’t end there. In Montana, as under federal regimes,

when a majority of employees of an administratively

determined bargaining unit vote to unionize, that union

is designated the exclusive representative of those em-

ployees. § 39-31-208(5). The chosen exclusive representa-

tive must also comply with a duty of fair representation

to all employees in the unit, whether or not they are

union members. See Ford v. University of Montana, 598

P.2d 604 (Mont. 1979); Teamsters Local No. 45 v. State,

724 P.2d 189 (Mont. 1986).

And, like federal frameworks, Montana law also

permits public employers and unions to enter into collec-

tive-bargaining agreements containing agency-shop

clauses. See § 39-31-401(3). But agency fees are permis-

sive—not mandatory—in Montana. Through a collective-

bargaining process, parties may mutually agree to add

or strike such a requirement from their contract. /d.

II. Montana’s longstanding reliance on its freedom

to organize relations with its State labor force is

constitutional.

Petitioners ask this Court to upend forty years of

carefully calibrated State labor policy that, as in Mon-

tana, has helped bring about peace after years of labor

unrest and improved government services. No law or

policy justifies such an extreme step.

To the contrary, this Court has repeatedly sought to

limit—not expand—those constitutional challenges

lodged against State action. When “interpreting any ..

pertinent constitutional provision” in such a case, courts

must address the “foremost consideration”—

“maintenance of the principles of federalism”—before

-12

invalidating State action. San Antonio Indep. Sch. Dist.

v. Rodriguez, 411 U.S. 1, 44 (1973) (quoting Allied Stores

of Ohio v. Bowers, 358 U.S. 522, 530, 532 (1959) (Bren-

nan, J., concurring); Katzenbach v. Morgan, 384 U.S.

641, 659, 661 (1966) (Harlan, J., dissenting)). And, as this

Court explained in San Antonio, “it would be difficult to

imagine a case having a greater potential impact on our

federal system” than one seeking to “abrogate systems .

.. presently in existence in virtually every State.” Jd.

These concerns are particularly evident when it

comes to matters of State government. In similar set-

tings, this Court has rightly blanched at constitutional

interpretations that would “subject a wide range of gov-

ernmental operations to invasive judicial superintend-

ence.” Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct.

2488, 2496 (2011). And so the Court has “often recog-

nized that government has significantly greater leeway

in its dealings with citizen employees than it does when it

brings its sovereign power to bear on citizens at large.”

Engquist, 553 U.S. 599.

That leeway, moreover, does not contract for claims

raising First Amendment challenges of the sort ad-

vanced here. Quite the opposite: Public employers may

regulate even core First Amendment activities when

they have sufficient interest as an employer in doing so.

See Broadrick v. Oklahoma, 413 U.S. 601 (1973); Civil

Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973);

United Public Workers v. Mitchell, 330 U.S. 75 (1947).

Were it otherwise, the First Amendment could be used

to blue pencil all manner of State management deci-

sions—an outcome roundly “inconsistent with sound

principles of federalism and separation of powers.” Gar-

cetti, 547 U.S. at 423.

-13-

Ultimately, Montana’s interest as employer in tailor-

ing the structure of its labor relations to the needs of its

workforce and citizenry more than justifies the modest

intrusion into a public employee’s speech activities.

There is no one “preferred” system for matters of State

labor policy. Instead, States have used their regulatory

flexibility to fashion “effective and creative programs for

solving local problems.” Reeves, Inc. v. Stake, 447 U.S.

429, 442 (1980). Montana’s longstanding and effective

choices in this regard should be celebrated, not ma-

ligned.

A. Acollective-bargaining system that includes

exclusive representation and agency fees

serves important State interests.

Decades ago, Montana made the decision that collec-

tive bargaining in the public sector would advance gov-

ernment employers’ managerial interests. Forty years

on, that decision remains sound: Montana’s collective-

bargaining system has resulted in numerous advantages

for both the State and public employees alike.

To begin, Montana’s system of exclusive representa-

tion has consistently promoted labor peace and predicta-

bility. It allows employers to gain employee input into

the terms and conditions of employment more efficiently

than bargaining with individual workers or rival groups.

Consider, for instance, Mortana’s use of “Labor Man-

agement Committees.” See Collective Bargaining

Agreement Between Montana Public Employees Associ-

ation and the Montana University System, July 1, 2013

through June 30, 2015, http://bit.ly/IkMIZI9. By incor-

porating these committees into their agreements, parties

“facilitate communication and resolve issues of mutual

interest” before they become costly subjects of litigation.

-14-

Id. at 3. Other facets of Montana’s system perform simi-

lar functions. See id.

The result has been lower costs for the State. Con-

trary to petitioners’ arguments that collective bargaining

artificially inflates States’ labor costs, Montana’s system

promotes labor stability quite efficiently. For the four

years after the Great Recession of 2008, State employees

in Montana did not receive an across-the-board base-pay

increase. In fact, in 2009 State employees came to the

bargaining table and agreed to a two-year pay freeze to

help Montana weather the impacts of the country’s eco-

nomic downturn. Dan Boyce, Senate Passes First State

Employee Base Pay Raises in Four Years, Montana

Public Media, Apr. 16, 2013, http://bit.ly/LHHZPwo0O. It is

not surprising, then, that in States like Montana, “to-

tal general expenditures of the municipality are not

increased by bargaining units, implying that some other

components of the expenditures of municipalities . . . will

be lower when bargaining units are present in municipal

functions.” Jeffrey Zax and Casey Ichniowski, The Ef-

fects of Public Sector Unionism on Pay, Employment,

Department Budgets, and Municipal Expenditures, in

When Public Sector Workers Unionize 323, 324 (1988).

Systems like Montana’ S are associated with lower

rates of strikes or other work stoppages. “When com-

pared with laws that permit limited strikes, job actions

were higher in States that had no law or no finality in the

law.” Robert Hebdon and Robert Stern, Do Public-

Sector Strike Bans Really Prevent Conflict?, Industrial

Relations, Vol. 42, No. 3, 495 (July 2003). In fact, state-

level public-employee strikes in Montana are a rarity:

the State has not experienced one in over two decades.

And the collective-bargaining system delivers sub-

stantial, tangible benefits to public workers. For in-

-15-

stance, in 2012, the State and its public-employee unions

set up the Montana Health Center, a health clinic espe-

cially for State employees. This clinic was widely hailed

as the first of its kind in the country—offering free pri-

mary healthcare services to its government workers

without copays. Susan Dunlap, Health Center for State

Employees Opens in Anaconda, The Montana Standard,

Mar. 19, 2015, http://bit.ly/LHKGwé6a. By structuring

flat-fee payments and increasing access to primary,

preventive care, the center immediately began “saving

money” for the State and is projected to save Montana

millions in long-term health costs for its workers. Dan

Boyce, Montana’s State-Run Free Clinic Sees Early

Success, Montana Public Radio, July 30, 2013,

http://n.pr/1MAzeHz.

Montana’s collective-bargaining system has also

produced innovative infrastructure support for Montana

communities. Ten years ago, the governor worked with

public unions to invest union pension funds in economic

development projects across the State. State and Union

Official Discuss Investing Union Funds, Associated

Press, Mar. 29, 2005, http://bit.ly/IPCIYTV; Charles

Johnson, Barrett Working with Unions to Put Pension

Funds to Work, Montana Standard, Mar. 29, 2005,

http-//bit.ly/

1HyFXBz.

B. Montana has a strong interest in maintaining

its system of exclusive representation.

1. Overturning Montana’s longstanding collective-

bargaining framework would generate massive costs for

the State. Two years ago, the Administrator of the State

Human Resources Division and the Governor’s Chief

Labor Negotiator told Montanans that the State must do

more “[tjo attract and retain a competent workforce.”

-16-

Hearing on H.B. 13 Before the Montana House Appro-

priations Committee (January 23, 2013) (testimony of

Paula Stoll at 3), available at http://bit.ly/IMKE4xvV. If

the State couldn’t “become an employer of choice,” the

“safety” and “public health” of “Montana citizens,” would

be at risk, as would the “quality of services Montana’s

citizens receive.” /d. Growing demand for public ser-

vices, combined with an aging workforce, meant that the

State was “at a precipice.” /d.

Upsetting the current scheme could push Montana

off that cliff. Agency fees are crucial for attracting a

competent workforce; eliminating them would weaken

the communication channels that workers currently use

to advocate for better working conditions, in turn un-

dermining the State’s ability to compete for the best

workers. Montana is already losing employees at an

unsustainable level. State employees are retiring “at

record rates”—in 2012 the number of retiring workers

increased by a full 25% from 2009. Jd. at 2. Current turn-

over is already high—13% in 2013—and costly: Every

employee that leaves costs the State up to one-and-a-half

times the annual salary to replace. And that doesn’t

account for “the resulting loss in service or the increased

liability of an untrained workforce.” Jd. at 3. Forcing the

State to restructure its collective-bargaining system will

only make it harder to replace those losses with compe-

tent workers.

2. Montana’s labor roots run deep. Unions have been

part of the State’s history since the late nineteenth cen-

tury, and their place in the State has consistently weath-

ered changing political tides. The State legislature has,

for years, considered—and rejected—a right-to-work bill

in nearly every session. And since the MCA was enacted

in 1973, no governor—Republican or Democrat—has

-17-

ever supported, much less advocated for, a change to the

public-sector collective-bargaining framework.

The current system, in short, works for Montana.

Indeed, one need look no further than the response to

one recent effort to adopt a right-to-work bill to see that

Montanans from across the political and economic spec-

trum understand the importance of Montana’s current

collective-bargaining system. After House Bill 462—

designed to repeal Montana’s agency-fee provision for

public employees—came up for debate this year, a

groundswell of opposition emerged. Not only were the

unions and State workers opposed to the bill, but indus-

try was as well. See Charles Johnson, Right-to-Work Bill

Draws No Support Except for Sponsor, Missoulian, Feb.

23, 2015, http://bit.ly/1J HxTih.

In Abood, this Court explained that a model of ex-

clusive representation serves several important inter-

ests: It “avoids the confusion that would result from

attempting to enforce two or more agreements specify-

ing different terms and conditions of employment,” pre-

vents “inter-union rivalries,” minimizes “dissension

within the work-force,” and “permits the employer and a

single union to reach agreements and settlements.” 431

U.S. at 220-21. Montana’s experience demonstrates

Abood’s wisdom; the State has long benefited from these

advantages in its collective-bargaining system. They

should not be so easily discounted.

-18-

CONCLUSION

The Court should affirm the judgment of the court of

appeals.

Respectfully submitted,

DEEPAK GUPTA

Counsel of Record

MATTHEW W.H. WESSLER

Gupta Wessler PLLC

1735 20th Street, NW

Washington, DC 20009

(202) 888-1741

deepak @guptawessler.com

KARL ENGLUND

KARL J. ENGLUND, P.C.

401 N. Washington Street

P.O. Box 8358

Missoula, MT 59807

November 13, 2015