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

Supreme Csurt, US.

FILED

NOV 12 2015

No. 14-915 OFFICE OF THE CLERK

NRO OE TE LTT A,

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 AMICUS CURIAE CALIFORNIA

SCHOOL EMPLOYEES ASSOCIATION

IN SUPPORT OF RESPONDENTS

MICHAEL R. CLANCY

CHRISTINA C. BLEULER

Counsel of Record

CALIFORNIA SCHOOL EMPLOYEES

ASSOCIATION

2045 Lundy Avenue

San Jose, CA 95131

(408) 433-1312

cbleuler@csea.com

Counsel for the Amicus Curiae

TABLE OF CONTENTS

Page(s)

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

an Detcccensenecssnccssnscsssssscorsscnsnsssseuveseenenes 2

TN Te 6

I. STATES HAVE THE RIGHT TO

ESTABLISH A REQUIREMENT

FOR PAYMENT OF AN AGENCY

FEE TO THE EXCLUSIVE

REPRESENTATIVE AS PART

OF THEIR PUBLIC SECTOR

LABOR RELATIONS STATUTES. ......... 6

RE ete ccsssecescesesssesssensecssscsssecsscesssnsescsscoossee 19

i

TABLE OF AUTHORITIES

Page(s)

CASES

Abood v. Detroit Board of Education,

ee ee Be iiicitninsninniininainenndss 2, 3, 7, 8, 19

Chicago Teachers Union, Local No. 1, AFT,

AFL-CIO v. Hudson,

Se iccncctensnsnnntncnsesenencienemnnenes 7,12

City of Madison, Joint School District No. 8

v. Wisconsin Employment Relations

Commission,

Ne a itiiniiiniinnrricrnricnastnnbintenisiauseigs 18

Garcetti v. Ceballos,

I eel 8

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

I a nil 7,8

Harris v. Quinn,

en INI iniiiciciiericiadenedadinenintion 10, 11

Lehnert v. Ferris Faculty Ass'n.,

TE aa aa SR 7,19

Locke v. Karass,

TSE eT I ED 7,19

il

Minnesota State Board for Community

Colleges v. Knight,

| Eee 7

Pickering v. Board of Education of Township

High School District 205,

3 eT 8

United States v. National Treasury

Employees Union,

613 U.S. 464 (1996) (NTEU)...........0ccccccccseseseeccsees 8

United States v. United Foods, Inc.,

I i asin 7,8

CALIFORNIA GOVERNMENT CODE

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CALIFORNIA EDUCATION CODE

CALIFORNIA REGULATIONS

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INTEREST OF THE AMICUS CURIAE!

California School Employees Association (“CSEA”) is

a California public school employee union which

represents, through its 740 separate chapters, the

non-certificated employees (i.e., non-teachers) — the

custodians, maintenance workers, groundskeepers,

bus drivers, clerical workers, instructional

assistants, and food service workers — in K-12 school

districts, community college districts, and county

offices of education. Each CSEA chapter is the

exclusive representative of a unit of these employees

in each district. Each school district is a separate

school employer. School districts in California vary

enormously in size: some are small rural districts

with only one or two school sites, while some are

large urban school districts. The majority of school

districts falls somewhere in between. The aggregate

number of non-certificated employees represented by

the 740 CSEA chapters is approximately 225,000

employees; however, since each CSEA chapter is the

exclusive representative in an individual district,

CSEA’s representational activities occur within these

individual bargaining units, which vary from a few

1 Pursuant to Rule 37.6, counsel for the amicus curiae

certifies that no counsel for any party authored this brief in

whole or in part and that no person or entity other than the

amicus curiae or its counsel made a monetary contribution

intended to fund the brief’s preparation or submission. Letters

from the parties consenting to the filing of this brief are on file

with the clerk.

2

employees to, in a small percentage of cases, more

than 1,000 employees.

As a California public school employee union, CSEA

is regulated by the Educational Employment

Relations Act (“EERA”), Cal. Gov't Code § 3540 et

seq., the statute at issue in this case. As a result,

CSEA and all of the employees it represents will be

directly affected by the Court’s decision in this case.

Under EERA, all of the employees in a bargaining

unit share the costs of their representation equally.

If Petitioners, with nothing but their overblown

rhetoric that “everything is political,” prevail in this

case, the entire cost of union representation would be

foisted onto those unit employees willing to pay not

only their own portion of those costs, but also the

costs of the employees who would reap the benefits of

representation without payment.

INTRODUCTION

Petitioners have asked the Court to ignore almost 40

years of thoughtful Court precedent in the area of

public sector labor and constitutional law, and to

overrule Abood v. Detroit Board of Education, 431

U.S. 209 (1977). Petitioners have asked this Court to

hold that all public sector union representational

activities on behalf of bargaining unit employees

constitute political advocacy, thereby triggering

Petitioners’ First Amendment rights, so _ that

Petitioners do not have to pay anything — not even

an agency fee — to the union for their representation.

Not only do Petitioners assert that this Court has

3

been wrong for 40 years on this issue, but also that

the courts, including this Court, are suddenly

incapable of adequately discerning the Abood

distinction between chargeable expenditures (those

germane to collective bargaining) and nonchargeable

expenditures (those not germane to collective

bargaining, including political advocacy) in the

public sector.

Petitioners are, in effect, asking this Court to, by

judicial fiat, convert all state public sector labor

statutes into “right to work” statutes, thus

abrogating the right of the states to fashion their

own public sector labor statutes, including an agency

fee provision, in the manner that the states

determine best effectuates the states’ public policies.

CSEA’s concerns are several. CSEA’s most

important concern is that the Court understand and

squarely face, rather than ignore, the actual

workplace realities of public sector labor relations.

At the end of the day, the Court’s decision in this

case will be of little use if it is predicated on nothing

more than Petitioners’ hyperbolic complaints about

union political expenditures and alleged union

political influence rather than an understanding of

the very focused, work-related contract negotiation

and enforcement activities that public sector unions

— including CSEA— engage in.

Year in and year out, in order to fulfill their

representational duties under EERA, CSEA

representatives and chapter leaders deal with

4

myriad bargaining and other representational issues,

as do all other public sector unions. Not only during

the work day, but in the evenings and on weekends,

CSEA representatives meet with #members

individually or in groups to assist them with

individual or collective employment issues. Every

day, CSEA representatives sit down with school

district administration perscnnel to bargain and to

resolve these issues, through both formal and

informal! actions. It is grinding, hard work which

focuses intensively on the employees and their work

place at each public school site. That is the world in

which CSEA representatives live. The

characterization of union representational activity as

per se “political advocacy” or “influencing public

policy” is so far outside the real world of public school

employment and labor relations as to be ludicrous. A

public employer, while clearly a governmental entity,

is also, in the final analysis, just an employer with

much the same work-related issues as a private

sector employer. These are the issues that are

addressed by public sector unions on behalf of the

unit employees. Imagine a custodian who asks the

CSEA representative to help him on a sick leave

problem with the human resources administrator in

the school district office: the custodian, the CSEA

representative, and the school administrator would

all be surprised to hear that their discussion

implicates important First Amendment issues of

“public policy” or “political advocacy.” Imagine a

CSEA negotiating team and a school district

negotiating team meeting over a bargaining proposal

for a 3% wage increase for its food service workers, or

a proposal regarding the process for the district’s bus

5

drivers to bid on their bus routes: both teams would

be surprised to hear that their negotiations implicate

important First Amendment issues.

It is true that these union representational activities

do not make the headlines, and pundits from all

points of view do not focus their comments, their

articles, or their time, on these activities since,

admittedly, there is limited public interest in such

mundane activities. That does not mean that these

bread-and-butter activities — which are the raison

d’étre of union representation — do not exist. It is

critical that this Court not ignore this reality in its

consideration of this case.

The bottom line is that the Court has not been

mistaken for the past four decades of agency fee

jurisprudence. The Court has engaged in a very

sensible line-drawing in applying the distinction

between chargeable and non-chargeable

expenditures, which protects an agency fee payer’s

First Amendment rights not to subsidize the political

activities of a public sector union and which, at the

same time, affirms the states’ rights to enact public

sector labor statutes which establish the exclusive

representative status of a union, chosen by the

majority of the unit employees, and which require or

permit the use of agency fee to ensure that all

members of a bargaining unit pay their fair share of

union representation. Nothing has occurred in the

intervening decades to change this legal equation:

while not headline-making, unions’ representational

activities and obligations have not evaporated into

thin air. Nevertheless, Petitioners demand that the

6

Court abandon its traditional judicial role of

determining the constitutionality of an expenditure,

i.e., whether it is chargeable or nonchargeable, on a

case-by-case basis. Petitioners’ demand that the

Court simply impose a blanket prohibition on fair

share payments instead, must be rejected.

ARGUMENT

I. STATES HAVE THE RIGHT TO

ESTABLISH A REQUIREMENT FOR

PAYMENT OF AN AGENCY FEE TO THE

EXCLUSIVE REPRESENTATIVE AS

PART OF THEIR PUBLIC SECTOR

LABOR RELATIONS STATUTES.

Petitioners demand that the Court eliminate all

agency fee payments in the public sector. Even

though the union has a statutory duty to represent

all unit employees, Petitioners assert that

employees, who do not want to pay anything to the

union, cannot be constitutionally compelled to pay

for representation provided to them. Petitioners

assert that they should be allowed to reap the

benefits of the union’s efforts as to their employment

— their wages, their health benefits, their vacation

leave, their sick leave, their differential pay, their

promotional opportunities, their grievances, their

issues with their supervisors, etc. — gratis. Payment,

from Petitioners’ viewpoint, rests with all the other

unit employees in the unit, who must bear

Petitioners’ costs.

7

Petitioners’ arguments make no inroads on the

Court’s well-established precedent that union

representational activities germane to collective

bargaining in the public sector do not constitute

“political advocacy” or “ideological advocacy” so as to

infringe impermissibly upon an agency fee payer's

First Amendment rights.

To arrive at their desired conclusion, Petitioners

request the Court to ignore the settled judicial

criteria for evaluating First Amendment rights,

specifically, the consideration of the context in which

the issue arises and the balancing of the interests

involved. First, Petitioners request the Court to

ignore the undisputed fact that the states have the

right to enact public sector labor statutes which

provide for exclusive representation by a union

regarding employee wages, hours, and terms and

conditions of employment. Minnesota State Board

for Community Colleges v. Knight, 465 U.S. 271, 279

(1984). Second, Petitioners request the Court to

ignore the fact that the states, in imposing a duty of

fair representation on the union to represent all of

the unit employees, have a vital interest in ensuring

that all unit employees also share the costs of such

representation fairly. This Court’s well-reasoned

precedent — from Abood through Chicago Teachers

Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475

U.S. 292, 302 (1986), Lehnert v. Ferris Faculty Ass'n.,

500 U.S. 507 (1991), Glickman v. Wileman Bros. &

Elliott, Inc., 521 U.S. 457 (1997), United States v.

United Foods, Inc., 533 U.S. 405 (2001), and Locke v.

Karass, 555 U.S. 207 (2009) — have repeatedly

recognized that states have the right to require

8

agency fee payments in the public sector to prevent

free riders and thereby prevent a situation where

only some of the employees in a bargaining unit

shoulder the burden of the entire cost of union

representation.

Third, Petitioners request the Court to ignore the

fact that a government workplace is still just that — a

workplace — and that the function of a public sector

union is to represent employees on _ their

employment-related matters in the workplace.

Public entities do not function simply as sovereigns

over the citizenry, but also as employers vis-a-vis

their employees and, as the Court has consistently

recognized, must have wide latitude to manage their

operations. Employees’ First Amendment rights are

therefore determined in the context of the public

entity functioning as an employer, and not as a

sovereign entity. Garcetti v. Ceballos, 547 U.S. 410

(2006); United States v. National Treasury

Employees Union, 513 U.S. 454 (1995) (NTEU);

Pickering v. Board of Education of Township High

School District 205, 391 U.S. 563 (1968). Fourth,

Petitioners request the Court to ignore the

constitutional validity of an agency fee requirement

as affirmed by the Court’s precedent on “forced

subsidization” of associations in the context of an

important regulatory scheme: the Abood agency fee

is appropriately considered by the Court as the

textbook example of a legitimate requirement to pay

a fee. Glickman, supra, 521 U.S. 457; United Foods,

supra, 533 U.S. 405.

9

The determination of a First Amendment issue

requires judicial balancing of the governmental

interests in promulgating a law or taking a

particular action with an employee’s free speech

interests. Petitioners have not articulated their free

speech interests at stake here beyond their abstract

invocation of what they characterize as_ the

“quintessentially political act” of collective

bargaining. See, e.g., Pet. Brief, p. 9. Respondent

California Teachers Association and other amici

curiae address the above legal issues at length.

However, CSEA wishes specifically to address

Petitioners’ unqualified assertion that union

representation under public sector labor statutes

constitutes per se “ideological advocacy” which

impermissibly infringes upon Petitioners’ First

Amendment rights. Petitioners’ refusal to

acknowledge the express purpose of these statutes,

including the Educational Employment Relations Act

at issue here, and the express representational

functions of public sector unions, warrants further

comment.

The essence of exclusive representation is that the

union represents, and speaks for, all unit employees

on employment issues pertaining to wages, hours,

and terms and conditions of employment (hence the

term “collective bargaining”). The states have a

strong governmental interest in enacting such

exclusive representation statutes to provide for

systems to manage the workforce of public entities in

regard to their employees’ wages, hours, and terms

and conditions of employment. These statutes

recognize that a governmental entity is an employer

10

and therefore acts qua employer vis-a-vis its

employees; the statutes also establish that the union,

as the exclusive representative, works within that

traditional employer-employee framework. Thus,

public sector employers and public sector unions

engage in the same traditional employer-employee

activities as do their counterparts in the private

sector.?

These statutes establish the circumscribed nature of

the union’s representational duties and the specific

workplace forum in which the union performs these

duties. The union’s statutory duty is to be the voice

of all the unit employees; its representational

2 The Court in Harris v. Quinn, 134 S.Ct. 2618 (2014),

expressly recognized the traditional employer functions of a

public employer. In distinguishing between the employment of

in-home care personal assistants, whose employers were

essentially the private individuals who had hired them, and the

employment by the State of “full-fledged public employees,” the

Court recognized that, as an employer, the State engages in

routine employment-related activities:

[T]he State establishes all of the duties

imposed on each employee, as well as all of the

qualifications needed for each position. The

State vets applicants and chooses the

employees to be hired. The State provides or

arranges for whatever training is needed, and

it supervises and evaluates the employees’ job

performance and imposes corrective measures

if appropriate. If a state employee's

performance is deficient, the State may

discharge the employee in accordance with

whatever procedures are required by law.

Id., at 2634.

11

purpose is to improve their wages, hours, and terms

and conditions of employment. The union thereby

provides a collective voice that employees would not

have if they attempted to negotiate over their wages

and workitig conditions individually. By the same

token, this system provides that the employer need

communicate only with the exclusive representative

on these work-related matters, and need not contend

with a cacophony of employee voices. Under these

statutes, public entities do not cede their policy-

making authority to either their rank-and-file

employees or to their representatives. Governmental

policies are not driven by rank-and-file governmental

employees, whether represented by a union or not.

The Educational Employment Relations Act

(“EERA”), Cal. Gov't Code § 3540 et seq., which

covers California public school employment, is such a

typical public sector labor statute. Under EERA,

unlike the statutory framework in Harris, the public

school employer possesses the traditional employer

control over the public school employees, while the

exclusive representative has the traditional

responsibility of representing the employees in

collective bargaining, contract administration, and

other employment matters related to wages, hours,

and terms and conditions of employment.

The purpose of EERA is “to promote the

improvement of personnel management and

employer-employee relations within the public school

systems” through a_i system of = exclusive

representation. Cal. Gov't Code § 3540. Under

EERA, the exclusive representative is selected by a

12

majority of the employees of a public school

employer, e.g., a school district, in an e»propriate

bargaining unit. Cal. Govt Code § 3544. The

exclusive representative has the right to represent

the unit employees “in their employment relations

with the public school employer.” Cal. Gov't Code §

3543.1 (emphasis added). EERA expressly imposes a

duty of fair representation on the _ exclusive

representative: the union must “fairly represent

each and every employee in the appropriate unit.”

Cal. Gov’t Code § 3544.9 (emphasis added).

3 EERA provides that certificated employees and non-

certificated employees must be in separate bargaining units.

Cal. Gov’t Code § 3545(b)(3).

4 EERA also requires that each unit employee pay an agency

fee to the exclusive representative, which may not exceed union

dues and which “shall cover the cost of negotiation, contract

administration, and other activities of the employee

organization that are germane to its functions as the exclusive

bargaining representative.” Cal. Gov't Code § 3546(a). EERA

thus protects agency fee payers from having to pay fees other

than those for activities germane to collective bargaining.

Agency fee payers have the right to a reduction of the fee not

devoted to the above cost, as set forth in regulations of the

California Public Employment Relations Board (PERB). Ibid.

The PERB agency fee regulations establish the procedural and

substantive requirements for annual Hudson notices, including

objection procedures, challenge procedures, and the escrow of

agency fees. 8 CCR §§ 32990-32997. EERA also provides for

control over the agency fee by the employees in the unit, who

can rescind agency fee by majority vote in an election, and can

also reinstate agency fee by majority vote. Cal. Gov't Code §

3546(d)(1), (d)(2).

13

Thus, under EERA, the exclusive representative

represents unit employees, individually or

collectively, in a wide variety of representational

activities, all specifically focused on employment-

related matters. These are normal, mundane

employment matters that all public school employers

and public school unions must deal with, whether

during contract negotiations, contract

administration, or in resolving work-related issues

as they arise. For example, CSEA representatives

and employers collectively bargain over a wide

variety of issues, all of which are directly focused on

work-related matters: wages, health benefits, rest

periods, meal periods, shift differential pay,

disciplinary procedures, promotional opportunities,

evaluation procedures, site transfers, reassignments,

on-call pay, standby pay, equipment, uniform

allowances, workweek and work hours, vacation

leave, sick leave, bereavement leave, etc.

CSEA representatives also represent employees or

groups of employees on a daily basis on a wide range

of work-related matters: these matters may be

resolved formally through a grievance process if

covered by contract, by filing an unfair practice

charge with the state labor board, or through other

means. For example, a food services department

does not provide required training on food safety to

the food services workers: the CSEA representative

will ensure that the training is_ given. A

maintenance department does not _ provide

appropriate safety gear to its mechanics in operating

certain equipment: the CSEA representative will

ensure that the proper gear is provided. A

14

transportation department changes the work

schedule of a group of bus drivers: the CSEA

representative will demand to bargain if it is a

unilateral change or file a grievance if the work

schedule is set by contract. A school administration

office does not allocate the correct amount of sick

leave days to an employee and thereby depletes the

employee’s sick leave hours bank incorrectly: the

CSEA representative will ensure that the sick leave

bank is correct. A maintenance and operations

department head calls a groundskeeper into a

meeting for an interview about his conduct which

might lead to discipline: the CSEA representative

will be present to represent the employee.

These activities, all inextricably tied to work-related

matters, are the very essence of union representation

in the public sector and cannot be characterized as

political advocacy. The workplace reality in which

public sector unions such as CSEA function, in

carrying out their contract bargaining and

enforcement duties, cannot be ignored.

It should also be noted that EERA confines collective

bargaining to wages, hours, and terms and

conditions of employment. EERA provides that the

public school employer has the duty to meet and

negotiate with the exclusive representative over

“matters within the scope of representation.” Cal.

Gov't Code §§ 3540.1(h), 3543.5(c). The scope of

representation is “limited to matters relating to

wages, hours of employment, and other terms and

conditions of employment.” Cal. Govt Code §

3543.2(a)(1). EERA expressly provides that “/a/ll

15

matters not specifically enumerated are reserved to

the public school employer and may not be a subject

of meeting and negotiating,” except that an employer

may consult, if it so chooses, with employees or

unions on matters outside the scope of

representation. Cal. Govt Code § 3543.2(a)(4)

(emphasis added). EERA does not require or

authorize negotiations over matters of school district

policy or managerial prerogatives.

Thus, a school district retains complete managerial

discretion under EERA to run its operations, to

determine the type and level of services to be offered

to the students, and to make public policy as it sees

fit. Even as to collective bargaining over wages,

hours, and working conditions (“matters within the

scope of representation”), there is nothing in EERA

that requires a school employer actually to agree to

any matter within the scope of representation. The

school employer is required only to meet and

negotiate with the exclusive representative with the

good faith intent of reaching agreement. Cal. Gov't

Code § 3540.1(h). Once the school employer has

completed the negotiation and impasse procedures in

EERA, the employer may implement its final offer.

Cal. Gov't Code §§ 3548-3548.3.

Petitioners nevertheless assert that, since wages and

benefits® entail governmental expenditures, all union

5 Pointing to articles on public sector unions, Petitioners refer

to employee pension benefits as a major public policy issue

affected by unions. Pet. Brief, pp. 25, 26. Petitioners ignore the

fact that, in California, pension benefit levels are not negotiable

for certificated school employees such as respondents, under the

16

representational activities, including collective

bargaining over wages, hours, and terms and

conditions of employment, are somehow transformed

into “ideological advocacy,” arguing that government

spending implicates “public policy.” Petitioners

ignore the workplace realities, as well as the express

purpose of public sector labor statutes. In enacting

statutes which provide for exclusive representation

and agency fees, state legislatures are obviously

aware that collective bargaining could have an effect

on the expenditures of a public employer, but have

concluded that any incidental effect on public policy

is outweighed by the vital public interests furthered

by a fair share allocation for union representation.

Petitioners’ challenge to the validity of agency fees

seems less an attempt to vindicate the First

Amendment rights of fee payers than a back-door

assault on public sector collective bargaining. In

fact, so abstract is Petitioners’ challenge that they

cannot articulate how a fee payer’s free speech rights

are impermissibly infringed upon because that fee

payer personally opposes the union’s position on a

particular item in collective bargaining. Instead,

Petitioners assert that, if a unit employee disagrees

with the supposed public policy implications of a

State Teachers Retirement System, Cal. Educ. Code § 22000 et

seq., or the non-certificated school employees represented by

CSEA, under the California Public Employees Retirement

System, Cal. Gov't Code § 20000 et seq., since the pension

benefit levels are set by statute. Cal. Educ. Code § 24202; Cal.

Gov't Code §§ 21353, 21354.1.

17

single issue affected by the union’s bargaining

position, the employee has the constitutional right

not to pay for any of the representation provided by

the union. Under this wholly unworkable scenario, a

fee payer who objects to the union’s bargaining for a

5% wage increase, on the ground that it involves

public policy, would not have to pay for any of the

other representation provided to the fee payer by the

union.

Under public sector labor statutes, including EERA,

a unit employee’s rights in collective bargaining and

representation are necessarily subordinate to

majority rule: that is the essence of collective

representation and collective bargaining. If the

service fee payer feels that the fiscal consequences of

a bread-and-butter bargaining issue advocated by

the union offends the fee payer’s sense of public

policy, the fee payer remains free to speak out in a

public forum and express how he or she thinks the

public money should be spent.

Indeed, EERA provides for a public forum for the

school district to receive public input in regard to the

initial proposals for a _ collective bargaining

agreement, as well as the final agreement. Cal.

Gov't Code §§ 3547, 3547.5. By the same token,

EERA ensures that the collective bargaining forum,

i.e., the negotiation process and any subsequent

mediation or factfinding in the impasse process, is

not open to the public and is confined to the exclusive

representative. Cal. Gov't Code § 3549.1. EERA

thus creates a public forum whereby citizens,

including district employees, may voice their

18

opinions, while reserving the negotiating forum to

the exclusive representative. See City of Madison,

Joint School District No. 8 v. Wisconsin Employment

Relations Commission, 429 U.S. 167 (1976) (school

employee had the constitutional right to speak at

public forum of school board meeting, even though

the bargaining forum was reserved to the exclusive

representative).

In sum, EERA reflects the state’s vital interest in

managing the workforce in school employment with a

system of exclusive representation, if the employees

so choose, and to ensure that the costs of

representation are fairly allocated among all unit

employees. EERA also protects any First

Amendment rights of non-union members: they are

not required to contribute to union political

activities, their agency fee procedural rights are

protected, and they are not prohibited from

expressing their concerns in a _ public forum.

Therefore, Petitioners’ First Amendment rights have

not been violated. Any infringement on Petitioners’

free speech rights caused by compelled payment of

an agency fee for their workplace representation is so

attenuated that it is far outweighed by the state’s

vital interest in authorizing a system of exclusive

representation in public sector employment and

payment of a fair share fee to be allocated equally

among all the unit employees for their

representation.

For four decades, the Court has successfully and

rationally decided the constitutionality of

expenditures in the public sector, with its line-

19

drawing between chargeable and nonchargeable

expenditures. Abood, 431 U.S. at 236; Lehnert, 500

U.S. at 518; Locke v. Karass, 555 U.S. 207 (2009).

Petitioners now urge the Court to abandon its

judicial role of determining the constitutionality of

expenditures as they arise — which is the very

essence of the judicial function — and instead urge

the Court to make a sweeping legislative declaration

that states can no longer authorize payment by

public employees to their union for their own

representation. Petitioners’ suggestion to simply

avoid these issues by determining that all union

representational activities constitute political

advocacy, in a classic “throwing the baby out with

the bath water” scenario, must be rejected.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted, Date: Nov. 12, 2015

Michael R. Clancy

Christina C. Bleuler

Counsel of Record

California School Employees Association

2045 Lundy Avenue

San Jose, CA 95131

(408) 433-1312

cbleuler@csea.com

Counsel for the Amicus Curiae

California School Employees Association