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

No. 14-915

Supreme Court of the United 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 THE INTERNATIONAL

ASSOCIATION OF FIRE FIGHTERS

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

THOMAS A. WOODLEY

Counsel of Record

DOUGLAS L. STEELE

DONNA-MARIE K. MCKINNON

WOODLEY & MCGILLIVARY LLP

1101 Vermont Avenue, NW

Suite 1000

Washington, DC 20006

(202) 833-8855

taw@wmlaborlaw.com

Counsel for Amicus Curiae

The International Association

of Fire Fighters

November 13, 2015

Se

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

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TABLE OF CONTENTS

TABLE OF AUTHORITIES. .................:cccccseeeeees

INTEREST OF AMICUS CURIAE................0000+.

FIRE FIGHTERS’ SIGNIFICANT RELI-

ANCE INTERESTS IN THE STABILITY

AND FAIRNESS OF THE COLLECTIVE

BARGAINING SYSTEM, INCLUDING

THE COLLECTION OF FAIR SHARE

FEES, STRONGLY SUPPORT THIS

COURT'S REAFFIRMANCE OF ABOOD ....

I. It Is Imperative That Public Safety

Unions Be Fairly Funded to Best Serve

and Protect the Interests of Fire Fight-

ers, Paramedics, and Emergency Re-

sponse Personnel and the Communities

A. Full and Adequate Financial Resources

Are Crucial for IAFF Affiliates to

Obtain Essential Health and Safety

Protections for All Bargaining Unit

Members that They Are Obligated by

1. Adequate Staffing Levels and

Training for All Bargaining Unit

Members ......... puscntenadbeseneinetnoemneneenee

(i)

co nw = &E:

i

TABLE OF CONTENTS—Continued

Page

2. Improvements to Personal Protec-

tive Equipment, Fire Equipment,

and Apparatus to Safeguard All

Fire Fighters and the Public.......... 12

3. Enhanced Health and Welfare

Benefits, Annual Medical Exami-

nations, and Employee Wellness

Programs for All Fire Fighters...... 16

B. Fair Share Fees Are Integral to

Supporting and Maintaining a Stable

Collective Bargaining System, Which

Results in Better Protections for the

Safety, Health, and Welfare of Fire

Fighters and the Communities They

SE TSS ee Se eee ee 19

II. The Collection of Fair Share Fees Is

| EE” nea ar 25

Ill. Fire Fighter Unions and the Emergency

First Responders They Represent Have

Significant Reliance Interests in Abood.. 29

IIIS cavercenscenvcesensssseninaressssnsemenensnsenien 34

TABLE OF AUTHORITIES

CASES Page(s)

Abood v. Detroit Board of Education,

8 ET passim

Anderson v. Burke County,

239 F.3d 1216 (11th Cir. 2001)................. 24

Chicago Teachers Union v. Hudson,

EE 29

Ellis v. Railway Clerks,

TT 29

Harris v. Quinn,

134 S. Ct. 2618 (2014)............0..... 20, 27, 30, 32

Hilton v. S. Carolina Pub. Railways

Comm’n,

ean 33

Keller v. State Bar of California,

TT 29

Lehnert v. Ferris Faculty Association,

IN ccnesivccntsisiamensiindaniosninics passim

Locke v. Karass,

555 U.S. 207 (2009)...............sccceecseeees 25, 26, 29

Machinists v. Street,

ee 25

United States v. United Foods,

Eee 21

CONSTITUTION

2 8 SS Re eeeeeeee passim

(iii)

iv

TABLE OF AUTHORITIES—Continued

STATUTES Page(s)

Cal. Gov. Code § 3515.7(a) ................ccccccceeee

Mich. Comp. Laws § 423.210(3)(c)...............

Mich. Comp. Laws § 423.210(4)(a)(i) ...........

Mich. Comp. Laws § 423.210(4)(a)(ii)..........

Mich. Comp. Laws § 423.210(4)(b)...............

. 5 > - ee

OTHER AUTHORITIES

NAT'L FIRE PROTECTION ASSOC.:

NFPA 1500: STANDARD ON FIRE

DEPARTMENT OCCUPATIONAL SAFETY AND

HEALTH PROGRAM (2013 ed. 2012) ..... 11, 15, 17

NFPA 1582: STANDARD ON COMPREHEN-

SIVE OCCUPATIONAL MEDICAL PROGRAM

FOR FIRE DEPARTMENTS (2013 ed. 2013) .. 17, 18

NFPA 1583: STANDARD ON HEALTH-

RELATED FITNESS PROGRAMS FOR FIRE

DEPARTMENT MEMBERS (2015 ed. 2015)... 17

NFPA 1710: STANDARD FOR THE ORGAN-

IZATION AND DEPLOYMENT OF FIRE

SUPPRESSION OPERATIONS, EMERGENCY

MEDICAL OPERATIONS, AND SPECIAL

OPERATIONS TO THE PUBLIC BY CAREER

FIRE DEPARTMENTS (2016 ed. 2015). ........ i)

AO AAanannna

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

NFPA 1851: STANDARD ON SELECTION,

CARE, AND MAINTENANCE OF PROTECTIVE

ENSEMBLES FOR STRUCTURAL FIRE

FIGHTING AND PROXIMITY FIRE FIGHTING

I 12,13

NATL INSTITUTE FOR OCCUPATIONAL

SAFETY AND HEALTH: A SUMMARY OF A

NIOSH FIRE FIGHTER FATALITY INVES-

TIGATION: A CAREER LIEUTENANT AND

FIRE FIGHTER/PARAMEDIC DIE IN A

HILLSIDE RESIDENTIAL HOUSE FIRE —

CALIFORNIA (Mar. 1, 2012)..................00066- 10

NATL INSTITUTE FOR OCCUPATIONAL

SAFETY AND HEALTH, A SUMMARY OF

HEALTH HAZARD EVALUATIONS: ISSUES

RELATED TO OCCUPATIONAL EXPOSURE TO

FIRE FIGHTERS, 1990 TO 2001 (Jan.

NATL INSTITUTE FOR OCCUPATIONAL

SAFETY AND HEALTH, WORKPLACE SOLU-

TIONS: PROMOTING HEARING HEALTH

AMONG FIRE FIGHTERS, Pub. No. 2013-

is crticsseiinienieasennienneeneinanmens 13, 14

NATL INSTITUTE OF STANDARDS AND

TECHNOLOGY, REPORT ON RESIDENTIAL

FIREGROUND FIELD EXPERIMENTS (Apr.

REE EGE IS snore ie REID ere 4

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Press Release, IARC: Diesel Engine

Exhaust Carcinogenic, International

Agency for Research on Cancer (June 12,

SU Adancccninniudsgulseniinteniatianniidempntegteindiiemsbe

Randy L. Tubbs, Noise and Hearing Loss in

Firefighting, 10 OCCUPATIONAL MED.:

STATE OF THE ART REVIEWS 843 (Oct.-Dec.

ITT Sahoo eiceeeinceiiatinteit acted aaa taciiniatitan

Rita F. Fahy, Paul R. LeBlanc, and Joseph

L. Molis, NFPA’s Firefighter Fatalities in

the United States — 2014 (June 2015),

available at http://Wwww.nfpa.org/researc

h/reports-and-statistics/the-fire-service/f

atalities-and-injuries/firefighter-fatalities

-in-the-united-states ................cccscccssessceees

ROLAND ZULLO, UNIV. OF MICH. INST. FOR

RESEARCH ON LAB., EMP., AND THE ECON.,

RIGHT-TO-WORK LAWS AND FATALITIES IN

CONSTRUCTION (Mar. 2011). .....................

Stefanos N. Kales, Emergency Duties and

Deaths from Heart Disease among

Firefighters in the United States, 356

15

14

17

20

NEW ENG. J. MED. 1207 (Mar. 22, 2007). . 16, 17

Stefanos N. Kales, et al., Firefighters and

on-duty deaths from coronary heart

disease: a case control study, ENVTL.

HEALTH: A GLOBAL ACCESS SCIENCE

SOURCE (Nov. 6, 2003) ...............ccccccecssseees

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Stefanos N. Kales, et al., Firefighters’

Hearing: A Comparison With Population

Databases From _ the _ International

Standards Organization, 43 J. OF

OCCUPATIONAL AND ENVTL. MED. 7 (July

Stephen Kerber, Analysis of Changing

Residential Fire Dynamics and Its

Implications on Firefighter Operational

Timeframes, FIRE TECH. (Oct. 2012). .......

14

9

BRIEF OF THE INTERNATIONAL

ASSOCIATION OF FIRE FIGHTERS

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

Amicus curiae represents public safety employees

that serve and protect citizens and their communities

across the nation.' The International Association of

Fire Fighters (“IAFF”) is an organization representing

more than 300,000 professional fire fighters, para-

medics, and other emergency responders in the United

States and Canada. More than 3,200 IAFF affiliates

protect the lives and property of over 85 percent of the

continent’s population in nearly 6,000 communities in

every state in the United States and in Canada. The

IAFF’s mission includes improving the working

conditions of fire fighters and emergency medical

services employees, as well as advancing the general

health and well-being of those personnel through

collective bargaining, labor agreements, and other

appropriate means. The IAFF seeks to promote the

welfare of fire fighters and other emergency re-

sponders with respect to health and safety, education,

training, protective gear and equipment, and other

terms and conditions of employment.

This case addresses the constitutionality of agency

fees, which require public employees who benefit from

union representation to pay for their fair share of the

1 Pursuant to Rule 37, counsel for Petitioners and counsel for

Respondents have consented to the filing of this amicus curiae

brief. No counsel for a party authored this amicus curiae brief in

whole or in part, and no person or entity, other than the amicus

curiae, made a monetary contribution to the preparation or

submission of this brief.

2

costs of negotiating and administering collective bar-

gaining agreements. Many IAFF affiliates negotiate

collective bargaining agreements containing agency

fee arrangements.

SUMMARY OF ARGUMENT

Fire fighters routinely encounter hazards on the job,

and they risk their lives in order to protect their

communities. Through collective bargaining, the

IAFF and its local affiliates work to reduce those

hazards and risks. Collective bargaining and union

representation are therefore vital for public safety

unions and the employees they represent. In reliance

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

(1977), state and local governments have established

a collective bargaining system, granting the exclusive

bargaining representative the ability to collect agency

fees from non-union members to cover the costs of

collective bargaining because this structure serves

essential government interests in attracting and

retaining high quality personnel.

Fair share fees thus play a significant role in main-

taining a stable collective bargaining system where

the union serves as the exclusive representative of all

employees, and non-members benefit substantially

from the union’s collective bargaining efforts. This

long-established structure also fosters and encourages

a productive relationship between the employer and

the union. Fire fighter unions seek to obtain

important health and safety protections oan

collective bargaining, which include adequate staffing

levels, proper training and equipment, employee

wellness programs, and other health and safety

measures, in order to protect fire fighters, emergency

medical service personnel, and the communities they

3

serve. It is imperative that public safety unions fairly

receive adequate funds through membership dues and

fair share fees in order to best protect both public

safety employees and their communities.

Abood has been settled precedent for nearly 40

years. The Court has repeatedly reaffirmed and

clarified the principles set forth in Abood, and that

well-reasoned decision is now firmly embedded in the

Court’s First Amendment jurisprudence. In addition,

amicus curiae has significant reliance interests in

Abood and the system of collective bargaining and fair

share fees established pursuant to that decision, and

the Court’s precedents and the principle of stare

decisis militate against overturning Abood and

imposing a ban on the collection of fair share fees.

ARGUMENT

FIRE FIGHTERS’ SIGNIFICANT RELIANCE

INTERESTS IN THE STABILITY AND FAIR-

NESS OF THE COLLECTIVE BARGAINING

SYSTEM, INCLUDING THE COLLECTION OF

FAIR SHARE FEES, STRONGLY SUPPORT

THIS COURT'S REAFFIRMANCE OF ABOOD

Fire fighters and paramedics depend on the collec-

tive bargaining system established by state and local

governments in reliance on Abood v. Detroit Board of

Education, 431 U.S. 209 (1977), allowing for the

designation of an exclusive representative that can

collect fair share fees from non-union members to

cover the costs of collective bargaining. Public em-

ployers and their employees have significant interests

in a stable and working collective bargaining structure

that encourages cooperation and efficiency. Due to the

dangers and risks of public safety jobs, fairness

dictates that public safety unions receive adequate

4

funding through union dues and agency fees in order

to effectively bargain with employers and secure much

needed health and safety protections for public safety

employees and the communities in which they perform

their vital services. Furthermore, Abood crafted a

working constitutional balance and has been embed-

ded into the Court’s First Amendment jurisprudence

through subsequent decisions for almost four decades.

The significant reliance interests of the IAFF and its

many affiliated unions would be turned upside down if

Abood and its progeny are overruled and a prohibition

is established against the collection of fair share fees.

I. It Is lmperative That Public Safety Unions Be

Fairly Funded to Best Serve and Protect the

Interests of Fire Fighters, Paramedics, and

Emergency Response Personnel and the

Communities They Serve

Collective bargaining and union representation is of

paramount importance and value to fire fighters and

emergency response personnel who serve and safe-

guard their communities, and they are historically

essential to a cooperative and productive relationship

between government employers and public safety

personnel. The Court in Abood underscored the

“important contribution of the union shop to the

system of labor relations,” and the significance and

“desirability of labor peace.” Abood v. Detroit Board of

Education, 431 U.S. 209, 222, 224 (1977). The Court

further determined that the desirability for labor

peace “is no less important in the public sector.” Id. at

224.

5

In those jurisdictions where fire fighters may

engage in collective bargaining,’ state and local

governments overwhelmingly find that the collective

bargaining structure, including the ability of the

exclusive representative to collect fair share fees from

non-members, allows state and local governments to

advance their interests in effective operations by col-

lectively bargaining with one employee representative

and preventing free riding on the union’s obligation to

represent all members of the bargaining unit. All of

the elements of the collective bargaining structure,

including financia] resources for public safety unions

funded in part by fair share fees, are crucial to ensure

that collective bargaining functions as intended by

state legislatures to facilitate achiewement of the

government’s goal of delivering efficient services to its

citizens. In addition, governments recognize that the

community benefits from fire fighter collective bar-

gaining because fire fighter unions are well positioned

to protect the health and welfare of not just the first

responders, but also the citizens they safeguard.

As a result, it naturally follows that some states

have recognized that sound public policy demands that

state and local government employers allow public

safety unions the ability to collect fair share fees due

to the nature of their work, while also denying other

public unions this right. Significantly, at least two

? About half of the states allow for collective bargaiming and

fair share arrangements. See, e.g., Cal. Gov. Code § 3515.7(a).

6

state legislatures, Wisconsin’ and Michigan,‘ recog-

nized that public safety unions necessarily require the

ability to collect fair share fees, due to the critically

important and dangerous work performed by these

employees.

These states are making a nuanced judgment

about how to best structure the relationships between

their public employers and employees. In doing so,

Wisconsin and Michigan have made an eminently

reasonable judgment in the most critical area of

3 Wisconsin law provides, “A general municipal employee has

the right to refrain from paying dues while remaining a member

of a collective bargaining unit. A public safety employee or a

transit employee, however, may be required to pay dues in the

manner provided in a fair-share agreement ... .” Wis. Stat.

§ 111.70(2).

* Michigan law declares that “an individual shall not be

required as a condition of obtaining or continuing public em-

ployment to do any of the following . . . Pay any dues, fees,

assessments, or other charges or expenses of any kind or amount,

or provide anything of value to a labor organization or bargaining

representative.” Mich. Comp. Laws § 423.210(3Xc). Michigan

law, however, carved out public safety employees from this

mandate by stating, “Subsection (3) does not apply to any of the

following . . . A public police or fire department employee ....” Mich.

Comp. Laws § 423.210(4Xa\i). State troopers and sergeants are

also exempt as well. Mich. Comp. Laws § 423.210(4\XaXii).

Michigan law also goes on to state, “Any person described in

subdivision (a), or a labor organization or bargaining repre-

sentative representing persons described in subdivision (a) and a

public employer or this state may agree that all employees in the

bargaining unit shall share fairly in the financial support of the

labor organization or their exclusive bargaining representative

by paying a fee to the labor organization or exclusive bargaining

representative that may be equivalent to the amount of dues

uniformly required of members of the labor organization or

exclusive bargaining representative.” Mich. Comp. Laws

§ 423.210(4Xb).

7

public safety that a system of exclusive represen-

tation, which permits the public safety exclusive

representative to bargain for fair share fees with the

local government employer, is the optimal way to

ensure the continuous provision of high quality

services to the citizens of these states. This judgment

should be respected.

Petitioners seek to overturn Abood based, not only

on circumstances that are specific to a single sector

of public employment, but also on a record that is

completely devoid of factual development. Petitioners’

arguments do not take into account the wide variety

of public-sector employment arrangements to which

Abood applies—especially those involving fire fighters

and EMS workers, where collective bargaining sup-

ported by fair share fees is common. Petitioners

instead are requesting that the Court interfere with

states’ reasoned policy judgments and substitute their

own judgment in place of the states and the strong

public policies that justify fair share fee arrange-

ments. States are in the best position to assess

whether collective bargaining and agency fees serve

vital government interests in attracting and retaining

a stable, experienced, and qualified workforce and in

improving the services provided to citizens.

A. Full and Adequate Financial Resources

Are Crucial for IAFF Affiliates to Obtain

Essential Health and Safety Protections

for All Bargaining Unit Members that

They Are Obligated by Law to Represent.

The collective bargaining process for fire fighters

does not merely entail improving wages, which are of

course important to attract and retain top quality first

responders. Fire fighter unions also use their limited

8

resources to obtain necessary health and safety protec-

tions for bargaining unit members in order to allow

them to better serve their communities. Health and

safety is the highest-priority bargaining issue for fire

fighters. Not all states have laws regulating fire

fighter health and safety, and some states that have

enacted such laws do not have meaningful mecha-

nisms to enforce these laws. As a consequence, it is

incumbent on the fire fighter unions to bargain for and

enforce these important protections. Adequately and

fairly funding unions through membership dues and

fair share fees is, therefore, essential to allow unions

the opportunity to secure and preserve these neces-

sary protections.

There are numerous collective bargaining priorities

specific to the work performed by fire fighters and

paramedics, and due to space constraints, the IAFF

cannot discuss every one of them. Instead, highlighted

here are a few significant priorities that IAFF affili-

ates often spend their resources on to illustrate the

significance of collective bargaining, with fair share

fees, to public safety employees and how fairness

requires that a union’s bargaining efforts, which

benefit all employees, be adequately funded.

1. Adequate Staffing Levels and Training

for All Bargaining Unit Members.

First, a significant collective bargaining priority

funded by fire fighter unions includes maintaining

sufficient staffing levels to ensure that fire fighters

and paramedics can efficiently respond to emergen-

cies. Decreased staffing levels result in a loss of jobs,

loss of life, a decline in the safety of fire fighters and

emergency response employees, and a substantial

decline in the safety of the community. The National

9

Fire Protection Association (NFPA) — a nonprofit

organization and the leading authority on fire safety

that develops science-based codes and standards to

minimize the possibility and effects of fire — recom-

mends that the minimum staffing levels for a fire

engine company to pertorm effective fire suppression

tasks is four employees per fire engine. NATIONAL

FIRE PROTECTION ASSOCIATION, NFPA 1710: STAND-

ARD FOR THE ORGANIZATION AND DEPLOYMENT OF FIRE

SUPPRESSION OPERATIONS, EMERGENCY MEDICAL OPERA-

TIONS, AND SPECIAL OPERATIONS TO THE PUBLIC BY

CAREER FIRE DEPARTMENTS, ch. 5.2.3 (2016 ed. 2015).

When fire fighters arrive at the scene of a fire, they

must perform critical tasks, which include establish-

ing the water supply, deploying an initial attack line,

ventilating, performing search and rescue, and estab-

lishing a Rapid Intervention Crew, which is a standby

crew tasked with immediately rescuing fire fighters

in trouble. With more fire fighters on the ground,

these tasks are performed more quickly, which better

protects citizens’ lives and property. One study found

that a four-person crew completed the necessary

tasks an average of 5.1 minutes faster (nearly 25%

faster) than a three-person crew when operating

on structure fires for one-, two-, or three-family dwell-

ings. NATIONAL INSTITUTE OF STANDARDS AND TECH-

NOLOGY, REPORT ON RESIDENTIAL FIREGROUND FIELD

EXPERIMENTS 10 (Apr. 2010). While five minutes may

not seem like a lot of time, when responding to a fire,

every second is critical. One study, which consisted of

multiple fire experiments to compare the impact of the

changes in residential structures over the past several

decades, found that rooms with modern construction

and home contents transitioned to flashover, which is

when all of the combustible materials in a room

simultaneously ignite, in less than five minutes.

10

Stephen Kerber, Analysis of Changing Residential

Fire Dynamics and Its Implications on Firefighter

Operational Timeframes, FIRE TECH. (Oct. 2012).

Fires burn faster today due to modern building

construction, larger homes, more open floor plans,

and home contents increasingly constructed with

synthetic materials, and it is more imperative than

ever to get water on the fire as soon as possible to

prevent the loss of life and property. Jd. In addition,

if a fire fighter is in trouble, it is critical for the rescue

crew to minimize the amount of time a fire fighter is

in danger. If staffing levels are not sufficient, then the

rescue crew may be assigned fire fighting duties at the

scene that hamper their ability to immediately

respond to a downed fire fighter, which needlessly

endangers the lives of fire fighters.

In fact, inadequate staffing has been cited as a major

contributing factor to emergency responses that

resulted in fire fighter fatalities. In 2011, two IAFF

Local 798 members in San Francisco tragically lost

their lives in the line of duty while fighting a

residential fire. The National Institute for Occupa-

tional Safety and Health (NIOSH), the federal agency

responsible for conducting investigations of fire fighter

line-of-duty deaths, found that in this incident,

staffing levels were not adequately maintained, and

recommended that the Fire Department maintain

sufficient staffing levels to prevent similar fire fighter

deaths in the future. NATIONAL INSTITUTE FOR OCCU-

PATIONAL SAFETY AND HEALTH, A SUMMARY OF A

NIOSH FIRE FIGHTER FATALITY INVESTIGATION: A CAREER

LIEUTENANT AND FIRE FIGHTER/PARAMEDIC DIE IN A

HILLSIDE RESIDENTIAL HOUSE FIRE — CALIFORNIA 21

(Mar. 1, 2012).

11

IAFF locals in fair share states are better able to

secure adequate staffing levels, which protect all

employees, because they can properly fund bargaining

efforts. For example, IAFF Local 1619 in Prince

George’s County, Maryland, which has a fair share

agreement with the employer, has obtained adequate

staffing levels through collective bargaining by suc-

cessfully incorporating into their contract for each fire

station the NFPA-recommended minimum staffing

level of four career personnel. In addition, LAFF Local

42 in Kansas City, Missouri, which also collects fair

share fees from non-members, negotiated a collective

bargaining agreement providing that fire apparatus

shall be staffed in compliance with the NFPA stand-

ards.

Adequate training is another important bargaining

priority funded by fire fighter unions to the benefit of

all employees. IAFF affiliates spend their resources

on obtaining adequate training through negotiations

with the employer, to the benefit of all employees, and

fair share fees play a crucial role in that effort. For

fire fighters and EMS personnel, regular, updated,

and high quality training is essential to protect fire

fighter safety and to ensure that fire fighters and EMS

workers are capable of protecting the citizens they

serve. The NFPA recommends minimum training and

education requirements for fire fighters, and the

NFPA further recommends that fire fighters train “on

a regular basis but not less than annually.” NATIONAL

FIRE PROTECTION ASSOCIATION, NFPA 1500: STANDARD ON

FIRE DEPARTMENT OCCUPATIONAL SAFETY AND HEALTH

PROGRAM, ch. 5.3.3 (2013 ed. 2012) [hereinafter NFPA

1500).

In addition, more specialized training can expand

the amount of services that fire fighters/paramedics

12

can provide to their communities, such as Hazmat,

technical rescue, terrorism response, mass casualties,

and other emergency incidents. IAFF affiliates in fair

share states are in a better position to secure much

needed protections with respect to training, which

benefits all employees. For example, IAFF Local 311

in Madison, Wisconsin, which has a fair share agree-

ment with the employer, secured in the collective

bargaining agreement regular Hazmat training for its

Hazmat team. Specifically, the Fire Department is

required to conduct monthly Hazmat training ses-

sions, where each monthly training session is held

three times, once during each of the three shifts,

during the course of the regular work day.

2. Improvements to Personal Protective

Equipment, Fire Equipment, and Appa-

ratus to Safeguard All Fire Fighters

and the Public.

Another significant collective bargaining priority

funded by fire fighter unions is obtaining and main-

taining the proper personal protective equipment

(PPE). These unions often devote their resources to

bargaining for higher quality PPE and for regular PPE

cleanings, a priority that benefits all public safety

employees. Proper PPE that complies with NFPA

standards is of paramount importance to fire fighters

in order to provide protection from hazardous expo-

sures. For example, NFPA 1851 provides that fire

departments should provide the means to have

PPE cleaned and decontaminated. NATIONAL FIRE

PROTECTION ASSOCIATION, NFPA 1851: STANDARD ON

SELECTION, CARE, AND MAINTENANCE OF PROTECTIVE

ENSEMBLES FOR STRUCTURAL FIRE FIGHTING AND

PROXIMITY FIRE FIGHTING, ch. 7.1.1 (2014 ed. 2013).

Soiled or contaminated gear is hazardous to fire

13

fighters because these contaminants may be flamma-

ble, toxic, or carcinogenic, which cause health

problems in the long term, such as cancer. Coupled

with this risk, contaminated PPE may also have

reduced protective qualities. Jd. at A.7.1.1.

IAFF locals in fair share states are better able to

obtain protections with respect to fire fighter PPE,

which inure to the benefit of all employees. For

example, IAFF Local 344 in Detroit, Michigan, which

receives fair share fees, bargained with the City of

Detroit for two sets of turnout gear (fire coats, bunker

pants, fire boots, and fire gloves) that conform with

current NFPA standards to be provided by the City to

each employee. In addition, the collective bargaining

agreement further mandates that the turnout gear

shall be cleaned and replaced in accordance with

current NFPA standards.

Adequately funded LAFF affiliates also bargain for

health and safety improvements to fire equipment and

apparatus to better protect fire fighters. These

improvements include hearing loss prevention pro-

grams. Excessive noise is one of the many hazards

that fire fighters are exposed to on the job, and the

main sources of noise include fire sirens, alarms,

communication devices, audio equipment, engine

pumps, rotary and chain saws, ventilation fans, and

pneumatic tools used in emergency ventilation and

extrication. NATIONAL INSTITUTE FOR OCCUPATIONAL

SAFETY AND HEALTH, WORKPLACE SOLUTIONS: PROMOTING

HEARING HEALTH AMONG FIRE FIGHTERS, Publication

No. 2013-142 (May 2013) ‘hereinafter PROMOTING

HEARING HEALTH). In addition, fire fighters are

frequently exposed to chemicals and combustion

byproducts that may have toxic effects to the ear and

exacerbate the onset of hearing loss. Jd.

14

Fire fighting activities therefore often result in fire

fighters being exposed to relatively continuous noise

levels, and after being repeatedly exposed to excessive

noise levels, fire fighters are at a dangerously high risk

of developing occupational hearing loss. Id.; Stefanos

N. Kales, et al., Firefighters’ Hearing: A Comparison

With Population Databases From the International

Standards Organization, 43 J. OF OCCUPATIONAL AND

ENVTL. MED. 7, 650 (July 2001) (hereinafter

Firefighters’ Hearing). Fire fighters tend to lose their

hearing at an accelerated rate compared to the general

population. Firefighters’ Hearing, supra, at 650. Fire

fighter hearing loss is particularly harmful because

many of the tasks performed by fire fighters depend on

their hearing ability. It is nearly impossible to see in

a smoke-filled environment, and fire fighters are

trained to listen for moans and cries when conducting

a rescue search. Fire fighters must listen to and

respond to radio communications and listen for the

warning sound from an air horn that signals fire

fighters to immediately leave a building due to immi-

nent danger. Hearing loss, therefore, “can literally be

a life-and-death situation” for fire fighters. Randy L.

Tubbs, Noise and Hearing Loss in Firefighting, 10

OCCUPATIONAL MED.: STATE OF THE ART REVIEWS 843,

844 (Oct.-Dec. 1995).

NIOSH therefore recommends that fire departments

consider limiting noise emission when purchasing new

equipment and train fire fighters about harmful noise

levels from fire fighting tasks and equipment, the

effects of noise exposure, hearing loss, and appropriate

hearing protection devices. PROMOTING HEARING

HEALTH, supra. IAFF locals in fair share states are in

a better position to bargain for these protections and

therefore frequently do so. For example, one IAFF

affiliate that collects fair share fees, IAFF Local 2881,

15

which represents employees of the California Depart-

ment of Forestry and Fire Protection (CAL FIRE),

negotiated for hearing protection/communications

systems on all new fire apparatus, dozer transports,

and crew carrying vehicles in order to better protect

their members’ hearing.

Another health and safety priority for fire fighters is

the installation of exhaust removal systems, such as

source capture devices that attach directly to the

tailpipe of fire apparatus and capture diesel engine

exhaust before it enters the room air, for fire appa-

ratus stored in an apparatus bay ofa fire station. Fire

fighters are typically exposed to extended periods of

diesel exhaust from apparatus idling in the apparatus

bays, which causes exhaust to enter the offices and

living quarters. The International Agency for Research on

Cancer, part of the World Health Organization

and the authoritative international agency on cancer

causation, classified diesel engine exhaust as carcino-

genic and as known to cause cancer in humans. It is

therefore essential that fire fighter exposures to diesel

exhaust be either eliminated or kept as low as feasibly

possible. Press Release, IARC: Diesel Engine Exhaust

Carcinogenic, International Agency for Research on

Cancer (June 12, 2012). NFPA 1500 provides, “The

fire department shall prevent exposure to fire fighters

and contamination of living and sleeping areas to

exhaust emissions.” NFPA 1500, supra, at ch. 9.1.5.

As a result, NIOSH recommends that fire depart-

ments improve local exhaust ventilation in apparatus

bays, including installing tailpipe exhaust systems, to

reduce exposures to the lowest feasible concentration.

NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND

HEALTH, A SUMMARY OF HEALTH HAZARD EVALUATIONS:

ISSUES RELATED TO OCCUPATIONAL EXPOSURE TO FIRE

16

FIGHTERS, 1990 TO 2001 6 (Jan. 2004). LAFF affiliates

therefore prioritize negotiating for exhaust removal

systems. For example, IAFF Local 2881, representing

CAL FIRE, successfully negotiated for exhaust re-

moval systems for all new facilities designed to house

fire apparatus, including fire engines, crew carrying

vehicles, and transports, and has enshrined this ar-

rangement in their collective bargaining agreement.

3. Enhanced Health and Welfare Benefits,

Annual Medical Examinations, and

Employee Wellness Programs for All

Fire Fighters.

Another collective bargaining priority for all fire

fighters funded by the union includes negotiating for

annual medical examinations administered through

employee wellness programs. Wellness programs are

of extreme importance for fire fighters because they

face a lot of significant health risks on the job,

including an elevated risk of cancer and cardiac issues.

A fire fighter’s work entails high levels of physical

exertion, uncontrolled environmental exposures, and

psychological stress from observed intense human

suffering. Practically every emergency situation

encountered by a fire fighter has the potential for

exposure to carcinogenic agents that are known to

cause cancer. Alarmingly, the IAFF estimates that

approximately 60 percent of the line-of-duty deaths of

IAFF members result from occupational cancer. Many

line-of-duty deaths further result from heart attacks

or strokes, and fire fighters have one of the highest

rates of on-the-job heart attack deaths among all

occupations. Stefanos N. Kales, Emergency Duties and

Deaths from Heart Disease among Firefighters in the

United States, 356 NEW ENG. J. MED. 1207, 1208 (Mar.

22, 2007). The NFPA found that in 2014, 56 percent

17

of fire fighters who died while on duty in the United

States died from sudden cardiac death. Rita F. Fahy,

Paul R. LeBlanc, and Joseph L. Molis, NFPA’s

Firefighter Fatalities in the United States — 2014 (June

2015), http://Awww.nfpa.org/research/reports-and-stati

stica/the-fire-service/fatalities-and-injuries/firefighter-

fatalities-in-the-united-states.

Annual medical exams allow fire fighters/paramedics to

maintain a high level of job performance and provide

high quality services to American communities. These

exams, however, should screen for the unique risks

and health conditions that may affect the ability of fire

fighters to safely perform their jobs. See NATIONAL FIRE

PROTECTION ASSOCIATION, NFPA 1582: STANDARD ON

COMPREHENSIVE OCCUPATIONAL MEDICAL PROGRAM FOR

FIRE DEPARTMENTS, ch. 7 (2013 ed. 2013); NATIONAL

FIRE PROTECTION ASSOCIATION, NFPA 1583: STANDARD

ON HEALTH-RELATED FITNESS PROGRAMS FOR FIRE

DEPARTMENT MEMBERS, (2015 ed. 2015); NFPA 1500,

supra, at ch. 10.1.3. As a result, wellness programs

typically reduce the number of work-related injuries

suffered by fire fighters while serving their communi-

ties. In the IAFF’s experience, annual exams save

more fire fighter lives than many other preventative

measures by providing early detection and treatment

of health conditions proven to be related to the fire

fighting profession, which in turn allows fire fighters

to enjoy longer, healthier careers. Furthermore,

wellness programs are popular with fire fighters

because through these programs, fire fighters receive

a free annual exam while they are on duty. For many

fire fighters, employer-provided health insurance does

not fully cover the costs of a much-needed annual

medica] examination. Moreover, the public has a

significant interest in fire fighters being physically fit

and able to perform essential job tasks.

18

Fire fighter unions often devote their limited fi-

nancial resources to negotiate for focused wellness

programs that assist all employees. One study

confirmed, “Despite recommendations that all fire-

fighters receive periodic, occupational medical exam-

inations, the fire service is failing to provide adequate

medical programs to many U.S. firefighters.” Stefanos

N. Kales, et al., Firefighters and on-duty deaths from

coronary heart disease: a case control study, ENVTL.

HEALTH: A GLOBAL ACCESS SCIENCE SOURCE, 11,

(Nov. 6, 2003). Unions with fair share agreements

have better resources to negotiate with the employer

for these programs to the benefit of all employees. For

example, in 2003, IAFF Local 1619 in Prince George’s

County, Maryland negotiated through collective

bargaining a comprehensive wellness and fitness

program. Several years after implementation of the

program, IAFF Local 1619 and the County saw a

comprehensive return on the investment and positive

performance data and added more components to the

wellness program. In addition, in 2013, LAFF Local 22

in Philadelphia, which collects fair share fees, ob-

tained through the collective bargaining process an

employee wellness fitness program, where bargaining

unit employees will receive a physical examination

once every two years, have hearing conservation

testing, and a voluntary fitness program. IAFF Local

2240 in Corvallis, Oregon, which collects fair share

fees, also collectively bargained for medical evalua-

tions for fire fighters in accordance with NFPA 1582

and at no cost to the employee. This is, again, an

important and potentially life-saving benefit protect-

ing all bargaining unit employees, regardless of union

membership.

19

Additionally, IAFF Local 798 in San Francisco,

California, which receives fair share fees, has a section

in its collective bargaining agreement providing for

health care screenings and vaccinations paid for by the

City, including the Hepatitis B vaccine and Hepatitis

C screenings, voluntary prostate cancer and breast

cancer screenings, and voluntary kidney and bladder

cancer screenings. The City also agreed to provide

immunizations for tetanus-diphtheria, rubella, mea-

sles, polio, and influenza at no cost to the members.

Furthermore, acknowledging the significant health

and safety risks faced by fire fighters, IAFF Local 858

in Denver, Colorado, which receives fair share fees,

negotiated with the City of Denver to include a

provision in their collective bargaining agreement

requiring the City to pay the cost of reasonable funeral

expenses up to a maximum of $10,000 in the event a

fire fighter dies from injuries sustained in the line of

duty. Furthermore, the contract requires the City to

pay the full cost of health insurance and dental

insurance for a surviving spouse and the children of a

fire fighter who is killed in the line of duty.

B. Fair Share Fees Are Integral to Support-

ing and Maintaining a Stable Collective

Bargaining System, Which Results in

Better Protections for the Safety, Health,

and Welfare of Fire Fighters and the

Communities They Serve.

As illustrated by the above collective bargaining

priorities for fire fighter unions, adequate resources

and fairness in funding are crucial in order for fire

fighter unions to properly perform their representa-

tional duties that better protect the lives and welfare

of all personnel, regardless of union affiliation, as well

as the public that they serve.

20

Significantly, data shows that in collective bargain-

ing states where unions are properly funded with dues

and fair share fees, the rate of worker deaths and

injuries is substantially less than in right-to-work

states. For example, the University of Michigan

performed a remarkable study comparing the rate of

fatalities for construction employees in right-to-work

states (with no fair share fees) and in non-right-to-

work states, and found that the fatality rate is

significantly higher in right-to-work states. In fact,

the rate of industry fatalities is 40 percent higher in

right-to-work states. ROLAND ZULLO, UNIV. OF MICH.

INST. FOR RESEARCH ON LAB., EMP., AND THE ECON.,

RIGHT-TO-WORK LAWS AND FATALITIES IN CONSTRUCTION

6 (Mar. 2011).

The study found that “the positive effect that unions

have on reducing fatalities appears to be stronger in

states without [right-to-work] laws” and recognized

that unions in right-to-work states “have fewer

resources to devote to safety training and accident

prevention.” Jd. at 5, 11. A study on construction

industry work is an appropriate comparator to fire

fighting because both occupations experience high

rates of worker injuries and fatalities. Overturning

Abood would thus produce disastrous consequences,

where both public safety employees and their commu-

nities will be less safe.

In order for collective bargaining to be meaningful,

“a government wishing to bargain with an exclusive

representative” requires “a viable counterpart,” which

in turn requires that “a union . . . receive adequate

funding.” Harris v. Quinn, 134 S. Ct. 2618, 2656 (2014)

(Kagan, J., dissenting). Agency fees thus play an

important role in supporting and maintaining a stable

collective bargaining system where the union serves

21

as the exclusive representative of all employees. See

United States v. United Foods, 533 U.S. 405, 414

(2001) (“To attain the desired benefit of collective

bargaining, union members and nonmembers were

required to associate with one another ... .”).

Especially in the important area of fire protection and

rescue services, state and local governments have a

compelling interest in allowing for agency fee arrange-

ments because non-members undeniably benefit from

the union’s efforts in collective bargaining, contract

administration, and grievance representation. See

Abood, 431 U.S. at 222 (non-members “obtain[] bene-

fits of union representation that necessarily accrue to

all employees”); Lehnert v. Ferris Faculty Association,

500 U.S. 507, 556 (1991) (Scalia, J., concurring in

judgment and dissenting in part) (“[T}he source of the

state’s power, despite the First Amendment, to compel

nonmembers to support the union financially, is

elimination of the inequity that would otherwise arise

from mandated free-ridership”).

Moreover, laws authorizing collective bargaining

with fair share fee arrangements are further justified

because public unions, as the exclusive representative,

have the legal duty of fair representation to non-

members in the bargaining unit. See Abood, 431 U.S.

at 221. Therefore, basic principles of fairness justify

the unions’ receipt of agency fees in order to fund

their efforts as the exclusive representative of all

employees.

As this Court recognized in Abood, collective bar-

gaining “often entail[s) expenditure of much time and

money.” Abood, 431 U.S. at 221 (“The tasks of

negotiating and administering a collective-bargaining

agreement and representing the interests of employ-

ees in settling disputes and processing grievances are

22

continuing and difficult ones.”). Typically, the parties

do not meet at the bargaining table a few times and

reach a quick agreement; collective bargaining negoti-

ations are usually a drawn out process that can

sometimes take years.

Additionally, this process almost always requires

fire fighter unions to hire attorneys, experts, econo-

mists, and professional negotiators at great cost to the

union in order to match the resources and experts put

forth by public employers. See Abood, 431 U.S. at 221.

Most importantly, non-union members benefit greatly

when IAFF local affiliates obtain non-controversial

protections such as adequate staffing, education,

training, equipment, and other health and safety mea-

sures, which are overwhelmingly favored by all fire

fighters, regardless of union affiliation. If unions are

not able to adequately and fairly fund collective

bargaining, then they will not be able to secure many

of these protections for the employees they represent.

The costs of processing grievances and going to

arbitration are steep as well. Petitioners dodge this

point and instead aver, “Agency fees . . . cannot be

justified on the ground that some small percentage of

those fees might aid the small percentage of employees

who file CBA grievances.” Pet. Br. 45. Petitioners fail

to understand that the union’s efforts in monitoring

and enforcing the collective bargaining agreement

benefit all members of the bargaining unit. For

example, if a union wins a contract interpretation

grievance with respect to overtime pay, all members

benefit from a properly enforced contract. For

disciplinary grievances, all bargaining unit employees

benefit from the proper enforcement of a contract’s just

cause provision; in fact, in the IAFF’s experience,

pursuit of these grievances reduces the frequency of

23

arbitrary or improper discipline for all employees, not

just for the individual grievant.

Petitioners also completely disregard the “expendi-

ture of much time and money” in handling grievances.

Abood, 431 U.S. at 221. Unions such as IAFF local

affiliates typically must pay for attorneys, assist with

paying for an arbitrator and other costs associated

with arbitration hearings, and expend much time to

ensure that grievances are properly handled. This is

hardly a “small” burden for unions. Despite the tre-

mendous time commitment and financial cost of

grievance handling, Petitioners go so far as to argue

thet handling non-member grievances “actually ben-

efits the unions.” Pet. Br. 45. Petitioners also dis-

ingenuously contend that unions “do not assist

nonmembers on matters that would tangibly benefit

them—e.g., resisting discipline or termination.” Jd. at

46. This assertion is patently false; fire fighter unions

frequently represent non-members in discipline or

termination grievances, demonstrating that public

safety unions “tangibly benefit” non-members.

Petitioners also misconstrue the nature and purpose

of union time — where union officials are afforded paid

time on duty to perform union business (such as filing

grievances, attending disciplinary interviews by man-

agement officials, and participating in collective

bargaining negotiations) — as “deals [struck by unions]

that . . . expressly favor union leaders.” Pet. Br. 41

n.11. The reality is that union time is not a fancy perk

that unions negotiate to unfairly favor union officers

over other bargaining unit members; union time is an

absolute necessity for unions to properly negotiate and

administer collective bargaining contracts, stemming

from their duty of fair representation and the interest

of public employers in maintaining a cooperative

24

relationship with the union, which in turn benefits all.

This is certainly true with respect to the safe and

efficient performance of fire protection and emergency

medical services.

Moreover, union time benefits the employer as well,

as it fosters the fair and reasonable administration of

the collective bargaining agreement that is essential

to workplace harmony, cohesion, and morale. This is

particularly important in the sphere of public safety

officials, who literally depend on union cooperation

and loyalty when facing life-threatening situations on

a daily basis. Stability in collective bargaining is

therefore of paramount importance in the public safety

realm because of the dangerous nature of the work,

and courts have recognized a heightened government

interest in securing discipline, efficiency, and morale

in organizations such as fire departments. See, e.g.,

Anderson v. Burke County, 239 F.3d 1216, 1222 (11th

Cir. 2001).

The above collective bargaining interests are there-

fore vital to both union members and non-members

alike. Fire fighter unions’ ability to fund and negotiate

for proposals that bolster the safety of fire fighters and

EMS workers benefits all those employees, regardless

of whether they are union members. Therefore, fair

share fees are an essential component of the existing

collective bargaining structure, which encourages a

strong and productive relationship between the em-

ployer and public safety unions and also clearly results

in better protections for the health and welfare of fire

fighter and EMS personnel, as well as the public.

25

Il. The Collection of Fair Share Fees Is

Constitutional

Abood has been settled precedent for almost 40

years, and the Court has repeatedly reaffirmed and

refined the bedrock First Amendment principles set

forth in Abood in its subsequent decisions. See Locke

v. Karass, 555 U.S. 207, 214 (2009). In upholding fair

share fees as consistent with the First Amendment,

the Court has afforded great weight to the long-standing

bedrock principle of exclusive union representation,

and the policy decision of a state to “establish [ex-

clusive representation] for local government units.”

Abood, 431 U.S. at 223.

Abood correctly recognized that “the designation

of a union as exclusive representative” inherently

“carries with it great responsibilities.” Id. at 221. As

an exclusive representative, “the union is obliged

fairly and equitably to represent all employees .. .

union and nonunion,’ within the relevant unit.” Jd.

(quoting Machinists v. Street, 367 U.S. 740, 761

(1961)). Justice Scalia, in an opinion joined by Justice

Kennedy in all but one part, aptly describes the

rationale underpinning Abood, which still is true

today: “Where the state imposes upon the union a duty

to deliver services, it may permit the union to demand

reimbursement for them; or, looked at from the other

end, where the state creates in the nonmembers a

legal entitlement from the union, it may compel them

to pay the cost.” Lehnert, 500 U.S. at 556 (Scalia, J.,

concurring in judgment and dissenting in part).

The Court’s reasoning in upholding fair share fees

as consistent with the First Amendment rests on two

fundamental principles. First, the Court recognized

that “it would promote peaceful labor relations” to

allow for fair share agreements “requiring employees

26

who obtain the benefit of union representation to

share its cost.” Abood, 431 U.S. at 219; see also Locke,

555 U.S. at 213. Second, the Court determined that

requiring all bargaining unit employees, regardless of

union membership, to pay their fair share of the un-

ion’s collective bargaining expenditures “distribute[s]

fairly the cost of these activities among those who ben-

efit, and it counteracts the incentive that employees

might otherwise have to become ‘free riders’ — to refuse

to contribute to the union while obtaining benefits of

union representation.” 431 U.S. at 222; see also Locke,

555 U.S. at 213. As further explained in Justice

Scalia’s opinion in Lehnert, “What is distinctive, how-

ever, about the ‘free riders’ who are nonunion mem-

bers of the union’s own bargaining unit is that in some

respects they are free riders whom the law requires the

union to carry — indeed, requires the union to go out of

its way to benefit, even at the expense of its other

interests.” Id. at 556. The interests in promoting labor

peace and in preventing free riders are still compelling

four decades later, and Petitioners present no novel

arguments or changed circumstances to upset

established law and practices and mandate a different

conclusion.

Abood therefore strikes the appropriate balance

with respect to the First Amendment. Under the fair

share fee system established in Abood, union members

are not forced to subsidize the collective bargaining

costs for non-members who receive the same benefits

of union representation, and non-members are not

forced to pay the union “for the expression of political

views, on behalf of political candidates, or toward the

advancement of other ideological causes not germane

to its duties as collective-bargaining representative.”

Abood, 431 U.S. at 235. Viewed another way, Justice

Kagan explained that Abood “protect[s] an employee’s

27

most significant expression” but “also enables the

government to advance its interests in operating

effectively—by bargaining, if it so chooses, with a

single employee representative and preventing free

riding on that union’s efforts.” Harris, 134 S. Ct. at

2645. Justice Scalia has also underscored the

appropriate balance struck in Abood: “Our First

Amendment jurisprudence .. . recognizes a correlation

between the rights and the duties of the union, on the

one hand, and the nonunion members of the

bargaining unit, on the other.” Lehnert, 500 U.S. at

556.

In asking the Court to overturn Abood, Petitioners

argue that collective bargaining “involves policy and

political issues no different than those involved in

lobbying and political advocacy.” Pet. Br. 23. This is

not a novel contention, and Petitioners offer no addi-

tional facts or circumstances that warrant disturbing

the Abood precedent on these grounds. Petitioners

also conveniently disregard the fact that the Court

has thoroughly considered and dispensed with this

argument in Abood, Lehnert, and other decisions.

Abood, 431 U.S. at 231; Lehnert, 500 U.S. at 521-22.

The Lehnert opinion reinforced the Abood precedent

by further elaborating on the obvious differences

between collective bargaining and political advocacy

that make required payments to the former constitu-

tional and to the latter unconstitutional. First, unlike

contract negotiations between a public employer and a

union, legislatures and the media “are public fora open

to all.” Lehnert, 500 U.S. at 521. Moreover, a union

engages in collective bargaining pursuant to statutory

authority, and unions generally have no equivalent

authority or duty with respect to lobbying. See id. at

558-59 (opinion of Scalia, J.). In addition, “unlike

28

discussion by negotiators regarding the terms and

conditions of employment, lobbying and electoral speech

are likely to concern topics about which individuals

hold strong personal views.” Jd. at 521. This proposi-

tion rings especially true with respect to fire fighters

and EMS/rescue personnel and their desire for

adequate staffing, equipment, training, and other

health and safety measures, as these priorities are

hardly controversial, and there are few if any dis-

senters within bargaining units when it comes to the

personal well-being of these employees and the

welfare of the community.

The Court in Lehnert further determined that the

principles underpinning Abood — labor peace and

preventing free riders — do not apply in the political

advocacy and lobbying context. For instance, the

Court noted that “it would not further the cause of

harmonious industrial relations to compel objecting

employees to finance union political activities.”

Lehnert, 500 U.S. at 521. In addition, “the so-called

‘free-rider’ concern” does not apply “where lobbying

extends beyond the effectuation of a _ collective-

bargaining agreement. The balancing of monetary and

other policy choices performed by legislatures is not

limited to the workplace but typically has ramifica-

tions that extend into diverse aspects of an employee’s

life.” Id.

Despite Petitionerr’ empty assertions to the con-

trary, the Court’s decisions following Abood in the last

several decades have repeatedly reaffirmed and

refined the holding in Abood to ensure that First

Amendment principles are properly interpreted.® In

5 Abood is also a foundational case in this Court's First

Amendment jurisprudence regarding financial support even

beyond the agency fee context, and overturning Abood will also

29

each of the agency fee cases decided by this Court from

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

Locke v. Karass, 555 U.S. 207 (2009), the Court

squarely upheld the rule in Abood as a “general First

Amendment principle” that “[t]he 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 condition of their

continued employment.” Locke, 555 U.S. at 213. In

addition, in Chicago Teachers Union v. Hudson, 475

U.S. 292 (1986) and subsequent cases, the Court

established robust procedures to “adequately protect[]

the basic distinction drawn in Abood,” between

chargeable collective bargaining activities and non-

chargeable political activities. 475 U.S. at 302; see also

Ellis, 466 U.S. 435 (1984); Lehnert, 500 U.S. 507

(1991); Locke, 555 U.S. 207 (2009). These well-

considered decisions ensure that non-members’ First

Amendment rights are adequately safeguarded with

respect to fair share fees.

Ill. Fire Fighter Unions and the Emergency

First Responders They Represent Have

Significant Reliance Interests in Abood

Despite Petitioners’ blanket assertion that “no

individual or entity has a valid reliance interest in

Abood,” Pet. Br. 58, the IAFF has significant reliance

interests in Abood and the system of collective bar-

gaining and fair share fees upheld in that decision.

have the unsettling effect of calling these cases into question. See,

e.g., Keller v. State Bar of California, 496 U.S. 1 (1990) (relying

on Abood to uphold mandatory fees charged by state bar

associations).

30

Public employers and public employees have freely

negotiated and entered into “not tens or hundreds, but

thousands of contracts between unions and gov-

ernments across the Nation” containing agency fee

agreements in reliance on Abood. Harris, 134 S. Ct. at

2645 (Kagan, J., dissenting).

Petitioners, however, somehow believe that over-

turning Abood would not interfere with the existing

collective bargaining system and resulting labor

agreements. Pet. Br. 58. This assertion betrays a

fundamental lack of understanding about how the

collective bargaining process works. First, many con-

tracts contain union security clauses, which require

non-members to pay fair share fees and allow for

employer payroll deductions of union dues and fair

share fees from bargaining unit workers. Each of

these contracts would have to be reopened and re-

negotiated, at great time and expense to the affected

unions, which in turn will need to consult with lawyers

in order to navigate the legal complexities of a post-

Abood landscape. Moreover, in many cases, public

sector unions have likely bargained away important

benefits or protections in order to secure agency shop

agreements, and they will not be able to revisit those

provisions until the current contract has expired.

Public safety unions also currently rely on fair share

fees in order to properly negotiate, administer, and

enforce contracts, including contracts currently in

effect, and process grievances. If Abood is overturned,

LAFF local unions will experience a sudden and sub-

stantial financial shortfall, and they will have to

immediately modify their already-established budgets

and re-determine their priorities in order to accommo-

date free-riders receiving the benefits secured by the

31

union. These unions will have less funds and re-

sources for collective bargaining, and they will have to

make tough choices regarding what they can and

cannot afford with respect to contract negotiations,

grievances, arbitration, and other representational

obligations. This will unquestionably impact priori-

ties at the bargaining table and contract enforcement.

Make no mistake — this will negatively impact all

public safety employees and the public they protect. It

is difficult to overstate the resentment and lowering of

morale among dues-paying union members and free-

riders, contrary to the interests of public safety em-

ployees, the IAFF affiliates, government employers,

and the public at large.

Petitioners assert that Respondent Unions “have

not identified anything they would have done differ-

ently absent the nondiscrimination duty, much less

something that would be different with that duty but

without agency fees.” Pet. Br. 58. As explained above,

without fair share fees, unions will have to provide less

services in order to allow non-members to free ride on

union benefits. LAFF affiliates will be unable to obtain

as many collective bargaining protections, including

those related to health and safety, for bargaining units

because they will have less money, while still having

to fully perform all their legal duties as the collective

bargaining representative.

Moreover, without fair share fees, unions would

still be required to fairly represent all employees in

the bargaining unit, including non-union members.

Therefore, fire fighter unions and their members

would be obligated to cover the collective bargaining

costs for non-members, which unfairly burdens union

members and significantly reduces the value of their

contributions to the union (especially in light of the

32

diminished ability of the union to provide protections

to the bargaining unit), and thus lead to “inequity”

between members and non-members. See Lehnert,

500 U.S. at 556 (Scalia, J., concurring in judgment and

dissenting in part) (“nonunion members . . . in some

respects they are free riders whom the law requires the

union to carry—indeed, requires the union to go out of

its way to benefit”).

Furthermore, public employees will have a substan-

tial incentive to free ride off the benefits obtained by

the union, even if they support the union’s efforts.

Petitioners gratuitously argue that in circumstances

where a majority of bargaining unit members support

having a union, it can “naturally” be presumed that a

high percentage of these employees will become union

members and willingly pay union dues. Pet. Br. 32-

33. As Justice Kagan rightfully points out in Harris

“not just those who oppose but those who favor a

union have an economic incentive to withhold dues;

only altruism or loyalty—as against financial self-

interest—can explain their support.” 134 S. Ct. at

2656.

In addition, overturning Abood would completely

dismantle the successful collective bargaining struc-

ture, enacted by governments, that serves the vital

interest of “promoting labor peace.” Lehnert, 550 U.S.

at 520. Public employers and fire fighter unions have

established long-standing and productive collective

bargaining relationships with each other and have

come to rely on the exclusive representation scheme,

with fair share fees, as a cornerstone for stability in

labor relations. Fire fighters depend on this stability,

boosting morale, which in turn, benefits the entire

bargaining unit and the community they serve. In

contrast, disturbing this working system that has been

33

in place for almost four decades would seriously under-

mine the capacity of the IAFF affiliates to adequately

protect and represent fire fighters and EMS/rescue

employees, consistent with the best interests of state

and local governments and the public.

Finally, this Court has repeatedly affirmed that

“[s}tare decisis has added force when the legislature,

in the public sphere, and citizens, in the private realm,

have acted in reliance on a previous decision” with the

undesirable result of “dislodg[ing] settled rights and

expectations or requir[ing] an extensive legislative

response.” Hilton v. S. Carolina Pub. Railways

Comm’n, 502 U.S. 197, 202 (1991). Here, the states

and local governments have established collective

bargaining systems authorizing fair share fees based

on the general First Amendment principles articulated in

Abood. Public employers and public employees have

entered into multi-year labor contracts containing fair

share fee provisions in reliance on Abood and state

collective bargaining law. Accordingly, the [AFF and

its local affiliates respectfully submit that stare decisis

principles fully support the conclusion that the well-

reasoned and balanced precedent established in Abood

and its progeny should not be disturbed by a decision

in this case, especially in light of the unsettling labor

relations consequences that would surely result.

In sum, the Court should reject Petitioners’ chal-

lenge to the long-established fair share fee structure

for public employees, including fire fighters and EMS

personnel, developed in Abood. The outcome urged

by Petitioners would undermine a system that has

worked well for nearly 40 years, and deprive IAFF-

affiliated unions of the support and financial resources

they need to carry out their critical public functions.

Fundamental fairness clearly supports the labor

34

relations principle that non-union members in the

bargaining unit should fairly share in the cost of the

benefits and

they receive through the

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them full representation.

CONCLUSION

For the reasons set forth above, the IAFF and its fire

fighter affiliates respectfully submit that the judg-

ment of the court of appeals should be affirmed.

November 13, 2015

Respectfully submitted,

THOMAS A. WOODLEY

Counsel of Record

DOUGLAS L. STEELE

DONNA-MARIE K. MCKINNON

WOODLEY & MCGILLIVARY LLP

1101 Vermont Avenue, NW

Suite 1000

Washington, DC 20006

(202) 833-8855

taw@wmlaborlaw.com

Counsel for Amicus Curiae

The International Association

of Fire Fighters