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

No. 14-915

IN THE

Supreme Court of the Anited 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 AMICI CURIAE OF LOS ANGELES

COUNTY’S DEPARTMENT OF HEALTH

SERVICES, NYC HEALTH + HOSPITALS,

AND SERVICE EMPLOYEES INTERNATIONAL

UNION SUPPORTING RESPONDENTS

MARY C. WICKHAM CLAIRE PRESTEL

Interim County Counsel Counsel of Record

COUNTY OF LOS ANGELES EVIN F. ISAACSON

OFFICE OF THE COUNTY JAMES & HOFFMAN, P.C.

COUNSEL 1130 Connecticut Ave., N.W.

648 Kenneth Hahn Hall of Suite 950

Administration Washington, DC 20036

500 W. Temple St. (202) 496-0500

Los Angeles, CA 90012 cpprestel@jamhoff.com

(213) 974-1811

mwickham@counsel.

lacounty.gov

[Additional Counsel Listed On Inside Cover]

(TR A RE Re I

Wison-Epes PrRinTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

JUDITH A. SCOTT

General Counsel

NICOLE G. BERNER

Deputy General Counsel

SERVICE EMPLOYEES

INTERNATIONAL UNION

1800 Massachusetts Ave., N.W.

Washington, DC 20036

(202) 730-7383

judy.scott@seiu.org

SALVATORE J. RUSSO

Senior Vice President

General Counsel

NYC HEALTH + HOSPITALS

125 Worth St.

New York, NY 10013

(212) 788-3300

salvatore.russo@nychhc.org

WALTER KAMIAT

7305 Alaska Ave., N.W.

Washington, DC 20012

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................cceeceeeseees

INTERESTS OF AMICI CURIAE .................0.0+0

SUMMARY OF ARGUMENT ................0cc:cceesees

PAYING FAIR-SHARE FEES IS NOT

CITIZEN SPEECH ON MATTERS OF

PUBLIC CONCERN, AND PETITION-

ERS’ INTERESTS ARE OUTWEIGHED

BY CONTRARY EMPLOYER INTER-

LABOR-MANAGEMENT

A. The History and Literature

Supporting Partnership ......................

B. Private Health Care Employers

Benefit from Labor-Management

I iinnpccinnnvntrenntcaibiensnenvennnnees

C. Labor-Management Partnerships

Serve Public Health Care Employers’

. FAIR-SSHARE FEES SERVE EM-

PLOYER INTERESTS BY ENABLING

AND STRENGTHENING LABOR-

MANAGEMENT PARTNERSHIPS..........

(i)

12

18

ii

TABLE OF CONTENTS—Continued

Page

A. Fair-Share Fees Play an Important

Role In Overcoming Workforce

TT icincrteitnienincnnpdiniinetecindbsceneacee 29

B. Fair-Share Fees Encourage

Cooperative Culture ......................0000+ 34

C. Fair-Share Fees Encourage Long-

Term Commitments To Cooperation.. 35

ID eniccnseesestenssssenincensnseevionsetetancseinees 37

TABLE OF AUTHORITIES

CASES Page(s)

Abood v. Detroit Bd. of Educ.,

Se Cs I Oi iciecetntianessenctecsiiinninies 6, 7, 10

Bd. of Cnty. Comm’rs, Wabaunsee Cnty.,

Kan. v. Umbehr,

ee ae Ce Ge cenccncseccscssisesesnvncnsencsets 6

Borough of Duryea, Pa. v. Guarnieri,

181 S. Ct. 2488 (2011)...........cceccccccesseseeees 7, 8,9

Connick v. Myers,

Se Ce SR cctescccccsesscccniccssnencnnsiiid passim

Elrod v. Burns,

gk, See 7

Engquist v. Or. Dep’t of Agric.,

BD Wet Ge Ge Piccccccececcorssesscnnescensconees 5

Garcetti v. Ceballos,

Be Ss SR eccvnccccssasnsnnesemanscncnnsi passim

Lane v. Franks,

ne Ge I iicnpteciniononananenninczadens 8

Madison Joint Sch. Dist. No. 8 v. Wis.

Emp't Relations Comm’n,

I I ii iccecteeieninnen 10

Minn. State Bd. for Cmty. Colls. v. Knight,

Se ee ee i itcticeincnenentieegeannniniens 10

OHare Truck Serv., Inc. v. City of Northlake,

ee. Pe icascnninicensnsensenninienininntess 7

Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n,

eG te hinsstininnisntiniaiinennedieseneiens 10, 11

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Pickering v. Bd. of Educ. of Township

High Sch. Dist. 205, Will Cnty.

rn 2

Riley v. Nat'l Fed’n of the Blind of N.C.,

Inc., 487 U.S. 781 (1988).................cccccceee 7

Rutan v. Republican Party of Iil.,

I 6

United Pub. Workers v. Mitchell,

ES a 7

United States v. Natl Treasury Emps.

Union, 513 U.S. 454 (1995) ...................... 7

United States v. United Foods, Inc.,

TTT TET 10

Waters v. Churchill,

EL 5, 6, 7, 11

CONSTITUTION

EC 8

STATUTES

Cal. Gov't Code $3540 .............ccccccccccscccceeees 7

Cal. Gov't Code §3546(a) ...............ccccccseseeeees 8

OTHER AUTHORITIES

About DHS, Health Servs. L.A. Cnty.,

http-//dhs. lacounty.gov/wps/portal/dhs/

Vv

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Paul Adler et al., Building a Collaborative

Enterprise, Harv. Bus. Rev., July-Aug.

2011, available at httpe:/Mnbr.org/2011/

Eileen Appelbaum & Larry W. Hunter,

Union Participation in Strategic Deci-

sions of Corporations, in Emerging Labor

Market Institutions for the Twenty-First

Century (Richard B. Freeman et al. eds.,

2004), available at http//www.nber.org/

Dan Ariely, Predictably Irrational: The

(revised & expanded ed. 2009) ................. 33

Ariel C. Avgar et al., Labor-Management

Partnership and Employee Voice:

Evidence from the Healthcare Setting,

Indus. Rel.: J. of Econ. & Soc’y (accepted),

Irving Bernstein, The Lean Years: A

History of the American Worker, 1920-

1933, (Haymarket Books ed., 2010)

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Sandra E. Black & Lisa M. Lynch, How to

Compete: The Impact of Workplace

Practices and Information Technology on

Productivity (Natl Bur. of Econ.

Cassandra Braun, Allergy Team Helps

Screen for Cancer, LMP (Feb. 5, 2014),

William Brock III, The Importance of

Labor-Management Cooperation, 11 J.

Lab. Res. 225 (1990) ...............c0-sss00- 16, 17, 18

Neil W. Chamberlain & Donald E. Cullen,

The Labor Sector (2d ed. 1971)................. 34, 35

Laura Chenven & Danielle Copeland,

Front-Line Worker Engagement: Greening

Health Care, Improving Worker and

Patient Health, and Building Better Jobs,

23(2) New Solutions 327 (Jan. 2013),

Paul Cohen, Unit-Based Teams Help KP

Achieve Top Medicare Ratings, LMP

(Oct. 17, 2014), http//Avww.lmpartner

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Joel Cutcher-Gershenfeld, The Impact on

Economic Performance of a Transfor-

mation in Workplace Relations, 44(2)

Indus. Lab. Rel. Rev. 241 (Jan.

Through Doctor, na Lee

The Dunlop Comm’n on the Future of

Worker-Management Relations, Final

Report (Dec. 1, 1994), available at

Email from Bill Dempsey, SEIU Chief Fin.

Officer, to Nicole Berner, SEIU Deputy

Gen. Counsel (Oct. 23, 2015,4:27 EDT).. 32

Cass R. Sunstein & Robert H. Frank, Cost-

(Univ. of Chicago, John M. Olin Law &

Econ. Working Paper No. 102, 2000),

i 33

SO eeceserereer VOSCOHMSH SS EPST CSS SCC OD TE See Eee HF

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Jody Hoffer Gittell, The Southwest

Airlines Way: Using the Power of Rela-

tionships to Achieve High Performance

GE itenhennnensccnnetipeneeianidsinniaidainnintiaiaitiia 13, 14, 30

Hospital Vatue: Based Purchasing, Medicare.

22

Hospital-Acquired Conditions (Present on

Admission Indicator), CMS (last modified

Sept. 29, 2014), https//Avww.cms.gov/

Interview with Patricia Castillo, L.A. Cnty.

Reg’ Health Dir., SETU 721, in L.A., Cal.

a intndieniheseuscctnectccenpenssnseemennes 23

Sally Klingel & David B. Lipsky, Joint

Labor-Management Training Programs for

Healthcare Worker Advancement and

Retention (Cornell Univ., ILR Sch.,

Research Studies & Reports, 2010),

http. /digitalcommous sir.comelledu/cgi/ tent. coi?article= 1042&context=

Sl cvistinertidreninencdsttiidieeemnmmnanees 16, 17, 34, 36

Thomas A. Kochan et al., Healing Together:

The Labor-Management Partnership at

ix

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Mei Kong, R.N. et al., An Assessment of

Housestaff Experience of Safety Culture:

What the erro seapd Meveaes,, aiteat

26

21

Brian Yoshio Laing, M.D., M.P.H. et al., A

Quasi-experimental Evaluation of Perfor-

mance Improvement Teams in the Safety-

Net: A Labor-Management Partnership

Model for Engaging Frontline Staff, J.

Pub. Health Mgmt. & Prac. (forthcoming),

Peter Lazes & Tony Costanza, Xerox

Cuts Costs Without Layoffs Through

Union-Management Cooperation Labor-

Management Cooperation Br., (Bureau of

Labor-Management Relations & Cooper-

ative Programs, U.S. Dep’t of Labor),

July 1984, http//www.ilr.cornell.edu/

x

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Page(s)

Peter Lazes et al., How Labor-Management

Partnerships Improve Patient Care, Cost

Control and Labor Relations, ILR

Sch., Cornell Univ. (Feb. 1, 2012),

; > : s

http//www alr.cornell.edu/scheinman- situte/ h-and-initiativea/

letters-and-reports ...............cccccceeeeeeeee 13, 15, 19

Letter from Alan D. Aviles, CEO/President,

NYC-HH, George Gresham, President,

1199SEIU & Hillary Tompkins, M.D.,

President, CIR/SEIU Healthcare, to

NYC-HH ea (Nov. 1, et,

Maimonides Med. Ctr. et al., Strategic

Alliance Rep. 2007: Creating Competitive

Advantage in a Changing Health

Care Environment Through Worker

Participation (2007), http//www.ilr.cormell.

edu/sites/ilr. cornell. edu/files/Maimonide

BM2ORCVOTt.DAL .....e..ceescoecceeeccessesesveee 18, 20, 21

Jonathan Oosting, Mich. Union Membership

Dropped Significantly in 2014, First Full

Year Under fea Law,

mlive.com (Jan. 23 , 2015), http://www.

xi

TABLE OF AUTHORITIES—Continued

Page(s)

MLE CIT Project Report, SEIU 721 (Jan.

26, 2015), bitpediwwwseu72Lore/MLK

Bp Se ctensinsscnsstscncssonscsesecsnsencuscoessesccssccsces 27

NYC Medication Safety Grand Rounds

Reach Hundreds, CIR Vitals (Oct. 18,

2012), http//www.cirvitals.org/2012/10/

Mancur Olson, The Logic of Collective

Action: Public Goods and the Theory of

Een 31, 33

Press Release, Resident QI Clinics Launch

at Harlem and Bronx-Lebanon Hospital

Centers with Mentorship from Society of

Hospital Medicine, PEI & Soc’y of Hosp.

Med. (Jan. 20, 2015), hither cirsei.

xii

TABLE OF AUTHORITIES—Continued

Page(s)

QI Survey Says, Newsletter (Doctors

Council, New York, N.Y.), Apr. 2014,

Stephen I. Schlossberg & Steven M. Fetter,

U.S. Labor Law and the Future of Labor-

Management Cooperation, 3 Lab. Law. 11

(1987), available at http://www.jstor.org/

Michael Schuster, The Impact of Union-

Management Cooperation on Productivity

and Employment, 36(3) Indus. Lab. Rel.

SEO. GE GRGD,. TRIED ecccccccrececsscccsesenoessenssee

Bhuvana Sunil, M.D. et al., Improving Post-

Discharge Follow Up of Pediatric Asthma

Patients at Harlem Hospital: A Resident-

Led QI ot sa aren, bar mere

The Value Provided By Labor Management

Training Partnerships In Healthcare,

Healthcare Career Advancement Program,

http://www.h-cap.org/files/2011/04/LM-

Training-Partnerships.pdf (last visited

eo

What Is Partnership?, LMP, http://www.

) hi what ome

Gi CEI csccsensenceccnccssesscsesenseses

17

16

25

17

19

see

TABLE OF AUTHORITIES—Continued

Page(s)

Michael Wilson, DHS and SEIU 721

Focused on System Improvement, Fast

Facts from Dr. Katz (LA-DHS, LA.,

Cal.), Aug. 3, 2015, http-//file lacounty.

INTERESTS OF AMICI CURIAE

Amici curiae have all utilized collective bargaining

to form beneficial labor-management partnerships,

and amici believe fair-share fees are important to the

continued success of their partnership work.

Los Angeles County's Department of Health Ser-

vices is the second-largest municipal health care

system in the country, serving 670,000 patients every

year. The Department of Health Services relies on

partnerships with its unionized employees to improve

quality and efficiency. Through labor-management

partnership structures, the health system and its

employees have already, among other achievements,

reduced patient wait times, increased productivity,

and increased scores on an important patient-

satisfaction metric. The Department of Health

Services joins in filing this brief because it believes

the fair-share provisions in its collective bargaining

agreements play an important role in fostering robust

labor-management partnerships, benefitting the

health system, its patients, and its employees alike.

NYC Health + Hospitals is the largest municipal

health care system in the country, serving 1.2 million

patients every year. Like many other public and

private health systems, NYC Health + Hospitals uses

labor-management partnership structures to improve

care quality and efficiency. Through partnership

work, the health care system and its employees have

already, among other achievements, reduced needle-

1 No counsel for a party authored this brief in whole or in part,

and no person or entity other than amici curiae and their counsel

made a monetary contribution to the preparation or submission

of this brief. The parties’ letters consenting to amici briefs are on

file with the Clerk.

2

stick rates and reduced readmission rates for pediatric

asthma patients. NYC Health + Hospitals joins this

brief because it believes the fair-share provisions in its

collective bargaining agreements are important to the

continued success of its labor-management coopera-

tive work.

The Service Employees International Union (SEIU)

is the largest health care union in the United States.

More than half of SETU’s two million members work

in the health care industry, including as doctors,

nurses, nursing assistants, therapists, technicians,

administrative staff, janitorial workers, and food-

service staff. Like its co-amici, SEIU believes fair-

share fees are important to the success of its labor-

management partnerships, which SEIU members care

deeply about and to which they devote significant

resources and effort.

SUMMARY OF ARGUMENT

There is a crucial constitutional difference between

the government acting as employer and the govern-

ment acting as sovereign, as this Court has often held.

See, e.g., Pickering v. Bd. of Educ. of Township High

Sch. Dist. 205, Will Cnty., 391 U.S. 563, 568 (1968).

Because government agencies are charged

by law with completing particular tasks, and hire

employees to help complete those tasks effectively and

efficiently, agency employers must be able to exercise

significant control over their employees’ words and

actions. Government agencies thus have far greater

leeway with respect to the speech and actions of their

employees than with respect to the speech and actions

of the public at large.

The analytical framework that applies to public-

employee speech claims reflects these principles, and

3

petitioners’ claims fail at each step of that framework.

Public-employee speech is protected only when

employees speak as citizens on matters of public

concern, and the payment of fair-share fees is not citi-

zen speech about matters of public interest. Moreover,

even employees’ citizen speech about matters of public

concern is protected only when employees’ interests

outweigh the government’s interest in managing its

workforce to promote effectiveness and efficiency, and

here the opposite is true. Public employees’ interest in

not paying fair-share fees is easily outweighed by

public employers’ contrary interests, including their

interest in fostering robust labor-management

cooperation, which has proven to be a successful

strategy for achieving quality and efficiency gains.

The use of collective-bargaining systems to develop

labor-management cooperative strategies has a long,

successful history in both the private and public

sectors. Partnership strategies have been shown in

numerous studies to increase productivity and service

quality while reducing cost. And partnership strate-

gies are now an important part of many public

employers’ quality- and efficiency-improvement plans,

including in health care where labor-management

partnerships save money and improve patient care.

As described below, Kaiser Permanente (Kaiser)

provides a leading private-sector example of the bene-

fits of union-management cooperation in health care,

and amici Los Angeles County’s Department of Health

Services (LA-DHS) and NYC Health + Hospitals

(NYC-HH), the nation’s two largest public health care

systems, likewise benefit from robust labor-manage-

ment cooperative structures. LA-DHS’s and NYC-

HH’s labor-management partnerships have, among

other achievements, increased patient-satisfaction

4

scores, reduced patient wait times and no-show rates,

and improved post-discharge follow-up for pediatric

asthma patients.

As all amici’s experiences demonstrate, modern

collective-bargaining relationships have evolved as

public employers, following private-sector examples,

have found that they can partner with unions to gain

competitive advantages. Public employers’ labor-

relations interests are thus no longer limited merely

to avoiding strikes and other disruptive events, if they

ever were. Instead, public employers have a strong

interest in using stable collective-bargaining systems

to foster labor-management partnerships that can

achieve quality and efficiency gains—and, as a result,

have a strong interest in fair-share-fee requirements

because fee requirements make employers’ partner-

ship strategies much more likely to succeed.

Fair-share-fee policies serve employers’ partnership

interests in a number of ways. They play a key role

in overcoming workforce skepticism about labor-

management cooperation by ensuring that employers

have credible union partners capable of legitimating

partnership work. Fair-share-fee policies also foster

cooperation by stabilizing labor relations and reducing

incentives labor and management might have to

treat each other as adversaries. And fair-share fees

ensure that employers’ labor partners have sufficient

resources to make long-term contributions to coop-

erative work, further validating that work among

employees and increasing partnership’s strategic

effectiveness.

In sum, petitioners’ claims fail because paying fair-

share fees is not citizen speech on matters of public

concern and because public employers’ interests in

5

using strong, stable collective-bargaining relation-

ships to foster labor-management partnerships fully

justifies employers’ fair-share-fee arrangements,

which have been lawful and well-accepted for decades.

ARGUMENT

I. PAYING FAIR-SHARE FEES IS NOT

CITIZEN SPEECH ON MATTERS OF

PUBLIC CONCERN, AND PETITIONERS’

INTERESTS ARE OUTWEIGHED BY

CONTRARY EMPLOYER INTERESTS.

This Court has long recognized that because govern-

ment agencies are “charged by law with doing

particular tasks,” Waters v. Churchill, 511 U.S. 661,

674~—75 (1994) (plurality op.), and hire employees to

help perform those tasks, id. at 675, agency employers,

“like private employers, need a significant degree of

control over their employees’ words and actions.”

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Public

employers are thus afforded “wide discretion ... over

the management of [their] personnel] and internal

affairs,” Connick v. Myers, 461 U.S. 138, 151 (1983)

(quotation marks and citation omitted), and there is

“a crucial difference, with respect to constitutional

analysis” between the government as “sovereign” and

the government as employer, acting “to manage [its]

internal operation.” Engquist v. Or. Dep’t of Agric.,

553 U.S. 591, 598 (2008) (alteration in original)

(internal quotation marks and citation omitted). Since

the “government’s interest in achieving its goals as

effectively and efficiently as possible is elevated from

a relatively subordinate interest ... to a significant one

when it acts as employer,” id. (quoting Waters, 511

U.S. at 675), the government “has significantly greater

leeway” when dealing with public employees’ speech

6

than when dealing with other citizens’ speech. Jd. at

599.

The analytical framework that applies to public-

employee speech claims reflects these principles. A

public employee’s speech is not protected unless the

employee speaks as a citizen on a matter of public

concern. And even then, the employee’ 8 interest must

outweigh “the government’s interest in the effective

and efficient fulfillment of its responsibilities to the

public.” Connick, 461 U.S. at 150; see also Abood v.

Detroit Bd. of Educ., 431 U.S. 209, 224-26 (1977)

(describing some public-employer interests served by

fair-share fees).?

When competing interests are balanced, public

employers’ assessments of their own interests and of

what may interfere with those interests are entitled to

“[djeference” provided they are “reasonable.” Bd. of

Cnty. Comm'rs, Wabaunsee Cnty., Kan. v. Umbehr,

518 U.S. 668, 678 (1996); see also Waters, 511 US. at

673, 678; Rutan v. Republican Party of Ill., 497 U.S.

62, 100-115 & n.3 (1990) (Scalia, J., dissenting)

(because of wide discretion afforded government as

employer, public-employee speech cases apply reason-

ableness standard). Furthermore, a government

employer need not believe that achievement of its

mission would be impossible absent a challenged

speech policy, nor demonstrate that it has adopted the

least speech-restrictive policy possible, nor wait for

employee speech (or non-speech) actually to interfere

with its operations before taking action. See Waters,

2 Abood was correctly decided, is further buttressed by the

additional employer interests discussed in this brief, and is of a

piece with Connick and other public-employee speech cases in

distinguishing between citizen and employee speech and in

balancing employer versus employee interests.

7

511 U.S. at 676; Connick, 461 U.S. at 151-52. Instead,

an employer may constitutionally restrict employee

speech or conduct that it reasonably believes will

“hinder[{] efficient operation,” Connick, 461 U.S. at

151, even if the employer runs “some risk of

erroneously punishing protected speech.” Waters, 511

U.S. at 676; see also Borough of Duryea, Pa. v.

Guarnieri, 131 S. Ct. 2488, 2497 (2011) (speech

restraints permissible when workplace “may be

affected” (emphasis added)); Garcetti, 547 U.S. at 418

(employer may restrict speech that “has some

potential” to affect operations). Compare United

States v. Natl Treasury Emps. Union, 513 U.S. 454,

475 n.21 (1995) (explaining that Hatch Act’s employee-

protective rationale justified prospective speech-

limiting rule), with Cal. Gov't Code $3540 (stating

employee-protective purposes for statute at issue).°

’ Petitioners’ assorted arguments for casting aside the

principles that have traditionally governed public-employee

speech claims, including in Abood, are without merit: The

political-patronage cases are inapposite because they address a

criterion, raw “political affiliation,” O'Hare Truck Serv. Inc. v.

City of Northlake, 518 U.S. 712, 719 (1996), that is functionally

irrelevant to the effective operations of a public enterprise, see

Elrod v. Burns, 427 U.S. 347, 365 (1976) (plurality op.). The same

cannot be said here. Nor is there any foundation in law or logic

require a different analysis, contra, e.g., Riley v. Nat'l Fed’n of the

Blind of N.C., Inc., 487 U.S. 781, 796 (1988); that prospective

rules cannot be analyzed within the traditional framework,

contra, eg., Waters, 511 U.S. at 673; Connick, 461 U.S. at 152;

United Pub. Workers v. Mitchell, 330 U.S. 75 (1947); or that it

matters that California has embodied its fair-share-fee require-

ment in statute, contra, e.g., United Pub. Workers, 330 U.S. at

103. Indeed, if that last, California-specific fact did matter, this

case would be an inappropriate vehicle for announcing a

nationwide rule.

8

Petitioners’ claims fail at each step of the applicable

analysis. As an initial matter, petitioners have never

argued, let alone demonstrated, that their payment of

fair-share fees is speech they make as citizens rather

than as employees. See Petitioners’ Br. 47-51. Nor

could they, since fair-share fees are paid only by

employees, in fulfillment of employment duties, via

deductions from employee pay, and pursuant to statu-

tory schemes and collective bargaining agreements

that have no application to private citizens. Compare

Cal. Gov’t Code §3546(a) (payment “required” “as a

condition of continued employment”), with Lane v.

Franks, 134 S. Ct. 2369, 2379 (2014) (court testimony

was citizen speech because of “distinct and independ-

ent” duty to “court and society ... to tell the truth”). As

Justice Scalia explained in a similar context in his

opinion in Guarnieri, something done pursuant to a

collective bargaining agreement is not done “as [a)

citize[n] for First Amendment purposes” because

“there is no relevant analogue” in the conduct of non-

employee private citizens. 131 S. Ct. at 2506 (Scalia,

J., concurring in the judgment in part and dissenting

in part) (alterations in original) (quoting Garcetti, 547

US. at 421, 423-24); cf. id. (“A union grievance is the

epitome of a petition addressed to the government in

its capacity as ... employer.”).

The payment of fair-share fees is also not speech

about matters of public concern. Petitioners them-

selves effectively concede that at least some fair-share-

funded speech fails to meet the Court’s public-concern

standard, see, e.g., Petitioners’ Br. 45 (discussing

grievances), and case law makes clear that other types

of collective-bargaining speech fail to meet that stand-

ard as well. Guarnieri, for example, describes employees’

efforts to influence their employers’ “[b]udget priorities,

personnel decisions, and substantive policies” as

9

efforts regarding “internal” matters “typically left to

the discretion of public officials.” 131 S. Ct. at 2496—

97; see also Connick, 461 U.S. at 141, 148-49 (ques-

tions regarding office transfer policy, morale, “need for

a grievance committee” and “level of confidence in

supervisors” were “internal office affairs”). Yet these

are exactly the kinds of internal processes and deci-

sions that petitioners now claim make the payment of

fair-share fees speech on matters of public concern.

See, e.g., Petitioners’ Br. 11—12 (fees support efforts to

influence decisions about “allocating scarce public

funds” and “supervis[ing] teachers”).

In addition, and as discussed in greater detail below,

petitioners’ claims fail because any interest public

employees have in not paying their fair share for

union services is easily outweighed by public employer

interests furthered by fair-share-fee policies, including

public employers’ interest in implementing successful

labor-management cooperative strategies. While

petitioners’ blinkered view ignores all but public

employers’ interests in labor peace and preventing free

riding (which petitioners understand only in their

narrowest sense and which, even so understood, are

significant and would be frustrated by the elimination

of fair-share fees), the current fair-share-fee system

does much more to further employer interests than

merely prevent strikes and other workplace disrup-

tions. In particular, the current fair-share-fee system

serves employers’ interests in improving quality,

efficiency, staff cohesion, and employee morale by

enabling and strengthening labor-management rela-

tionships, allowing for the development of collabora-

tive partnerships. See infra Part II; cf. Garcetti, 547

U.S. at 424-25 (citing employer interests in efficiency

10

and quality); Connick, 461 U.S. at 150-51 (citing

employer interest in close working relationships).‘

There is nothing anomalous or unrealistic about a

public-employer policy that arguably aids employee

unions as a means of serving employer interests. This

Court upheld such a policy in Minnesota State Board

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

permitting a state-agency employer to establish an

internal forum for discussion solely with its employees’

union when doing so served the state’s interests. Id.

at 274—75, 291-92; see also Perry Educ. Ass’n v. Perry

* Amici note that public employers’ interests should carry

particularly great weight in this case given the factual context.

Cf. Connick, 461 U.S. at 150-51 (weight given competing

interests depends on context). For one thing, the speech at issue

(i.e., fair-share-funded speech) is directed to employers rather

than to the general public, see Abood, 431 U.S. at 235-36, and

employers have additional leeway with respect to internally

directed speech because they are best positioned to know what

will interfere with their own operations, see generally Garcetti,

547 U.S. at 422-23, and because employees’ ability to participate

in public debate is not implicated. See Connick, 461 U.S. at 148

(significant that employee “did not seek to inform the public”); see

also Madison Joint Sch. Dist. No. 8 v. Wis. Emp't Relations

Comm'n, 429 U.S. 167, 175-76 (1976) (even in collective-

bargaining systems, employees remain free to participate in

debates in public fora). For another, fair-share-fee policies are

not stand-alone provisions aimed at compelling speech but are

usually part of a state’s “comprehensive program” for managing

labor relations, United States v. United Foods, Inc., 533 U.S. 405,

411 (2001), with any effects on individuals’ speech incidental to

the state’s legitimate labor-relations goals. Cf. id. at 411-14

(more leeway when speech restrictions ancillary to larger

“scheme of economic regulation” that serves “overriding associa-

tional purpose”). Finally, fair-share-funded speech is, at best for

petitioners, mixed non-public and public-matter speech, which

also weighs in the public employers’ favor. See Connick, 461 U.S.

at 150, 154.

11

Local Educators’ Ass’n, 460 U.S. 37 (1983) (school

district could allow union to use inter-school mail

while excluding others); cf. id. at 49 n.9 (explaining

that when union becomes exclusive representative, it

“assume[s] an official position in the operational

structure of the District’s schools”). Similarly here,

public employers have reasonably chosen a policy, i.e.,

requiring payment of fair-share fees, that serves their

interests by helping to foster robust labor-manage-

ment partnerships. Indeed, in doing so, public employ-

ers have chosen a strategic option that was identified

as open to them in Garcetti— instituting “policies and

procedures” that help create a “forum” in which

employees (who are often “in the best position to know

what ails the agencies for which they work,” Waters,

511 U.S. at 674) feel comfortable communicating ideas

and concerns directly to their employer. Garcetti, 547

U.S. at 424.

ll. LABOR-MANAGEMENT PARTNERSHIPS

SERVE EMPLOYER INTERESTS.

Labor-management partnerships have deep roots in

American workplace history and have been shown,

inter alia, to improve service quality and reduce

employer costs. Partnership is particularly well-

established as a strategy in health care and is familiar

to many in that field as a proven method for achieving

quality and efficiency gains. Kaiser relies heavily on

partnership in the private sector, and public-sector

amici LA-DHS and NYC-HH benefit from robust

union-management collaborative systems as well.

Public health care employers, like their private-sector

counterparts, should continue to have the option of

using fair-share-fee policies to enable and strengthen

labor-management partnership: .

12

A. The History and Literature Supporting

Partnership

Labor-management partnerships developed through

stable collective-bargaining institutions have a long

history of providing benefits to employers and employ-

ees. In the 1920s, for example, several leading railroads

and employee ur.ions worked together to expand pas-

senger service nationwide. Thomas A. Kochan et ai.,

Healing Together: The Labor-Management Partnership at

Kaiser Permanente 19 (2009). At about the same time,

the International Brotherhood of Electrical Workers

entered into its now nearly 100-year-old partnership

with the National Electrical Contractors Association

(NECA). See Eileen Appelbaum & Larry W. Hunter,

Union Participation in Strategic Decisions of Corpora-

tions, in Emerging Labor Market Institutions for the

Twenty-First Century 265, 272-73 (Richard B.

Freeman et al. eds., 2004), available at http://www.

nber.org/chapters/c9958.pdf That partnership has

trained thousands of electricians and undertaken

other collaborative projects, including successfully

increasing NECA contractors’ market share. Id.

More recent examples of successful cooperation

include: a union-management partnership that played a

key role in bringing Harley-Davidson back from near

bankruptcy, Kochan et al., supra, at 19; a steel-

industry partnership that “contributed heavily” to the

industry's “turnaround,” Appelbaum & Hunter, supra,

at 276-77; a labor-management partnership at Xerox

that reduced costs and improved manufacturing pro-

cesses, see Peter Lazes & Tony Costanza, Xerox Cuts

Costs Without Layoffs Through Union-Management

Cooperation, Labor-Management Cooperation Br. (Bureau

of Labor-Management Relations & Cooperative

Programs, U.S. Dep’t of Labor), July 1984, http:/

13

www.ilr.cornell.edu/scheinman-institute/research-and-

initiatives/newsletters-and-reports (follow link to PDF);

and labor-management partnerships at Southwest

Airlines that have played an important part in

that company’s success, see Jody Hoffer Gittell, The

Southwest Airlines Way: Using the Power of Relation-

ships to Achieve High Performance 22-23, 165-82

(2003) (Southwest’s union-management partnerships

have, among other things, helped achieve particularly

short landing-to-takeoff turnaround times).

The success of many of these partnerships flows

from the fact that robust union-management coopera-

tion increases employees’ willingness to share ideas

and concerns with management, which in turn leads

to quality and efficiency improvements. By giving

workers confidence that information they provide

will not be used against them and that time spent

on collaborative work will not be wasted, labor-

management partnerships encourage employees to

speak up. See, e.g., Ariel C. Avgar et al., Labor-

Management Partnership and Employee Voice: Evidence

from the Healthcare Setting, Indus. Rel.: J. of Econ.

& Soc’y (accepted) (manuscript 6, 15—16, 27), http://

www.researchgate.net/publication/280216324_Labor_

management_partnership_and_employee_voice_Evide

nce_from_the_healthcare_setting (for the reasons

described, strong partnerships increase health care

workers’ willingness to voice ideas for improving

patient care); Peter Lazes et al., How Labor-

Management Partnerships Improve Patient Care, Cost

Control and Labor Relations, ILR Sch., Cornell Univ.

19 (Feb. 1, 2012), http://www.ilr.cornell.edu/schein

man-institute/research-and-initiatives/newsletters-and-

reports (follow link to PDF) (in partnership, according

to worker, “nobody is afraid to say, ‘We need to change

this”). Ideas that employees feel confident sharing

14

because of partnership then lead in many cases to

quality and efficiency improvements that serve

employer interests. See discussion infra; see generally

Paul Adler et al., Building a Collaborative Enterprise,

Harv. Bus. Rev., July-Aug. 2011, available at https://

hbr.org/2011/07/building-a-collaborative-enterprise/ar/1

(employers cannot meet “today’s market imperative”

to “innovate fast enough” while “simultaneously

improving cost and efficiency” without “true collabora-

tion” between front-line staff and supervisors).°

Indeed, a number of research studies show that

robust labor-management partnerships generate sig-

nificant benefits for employers in the areas of service

quality, efficiency, productivity, morale, and workforce

training. With respect to quality and efficiency, for

example, two recent studies found that the implemen-

tation of labor-management partnership structures in

health care facilities led to reduced costs and improved

care because partnership gave employees a safe forum

in which to voice ideas and concerns. Efficiency gains

included $51,000 in wage savings at one facility, a

reduction in staff turnover from 14% to 3.9% at

5 See also Kochan et al., supra, at 155 (quoting management

executive: Before partnership, “[labor] had ideas but they never

surfaced or if they did, they never went anywhere. It was a

learning process for me to ... see what was possible if

management was ready to listen.”); Gittell, supra, at 171 (quoting

manager: “If we have a concept we want to kick around, we want

to get the union involved ... to see if there are flaws.”).

Of course, improvement projects can also meaningfully

enhance employees’ day-to-day working lives, which explains

why surv¢ys show that employees care deeply about such projects

and want and expect their unions to contribute to quality-

improvement efforts. See, eg., QI Survey Says, Newsletter

(Doctors Council, New York, N.Y.), Apr. 2014, at 1, http-//doctors

council.org/wp-content/uploada/2015/09/QI-Mailer-April-2014-NF pdf.

15

another, and reduced nurse turnover and expensive

traveling-nurse hiring at another. Avgar et al., supra,

at 20; Lazes et al., supra, at iii, 18, 49. Quality-of-care

improvements included a 44% to 83% increase in the

number of referred home-care patients seen within 24

hours, a decline in fall rate from 3.07 to 2 falls

per 1,000 patients, and achievement of a 45-minute

stroke alert to test result turnaround-time bench-

mark. Avgar et al., supra, at 20; Lazes et al., supra, at

51; see also Kochan et al., supra, at 208, 85 (worker

involvement in Kaiser partnership correlated with

significant upward trends in immunization, asthma-

monitoring, and lipid-screening rates, and “[wjhere

partnership ... became an integral part of health care

delivery at Kaiser” it “clearly generated significant

economic payofis”).

Labor-management partnerships have also been

shown to increase productivity by creating an environ-

ment in which employees feel comfortable pooling

their skills and knowledge to create better workplace

processes. An analysis of the labor-management part-

nership at Xerox found that work areas transformed

by partnership experienced lower costs and higher

productivity than work areas left with a traditional

model of labor-management relations. See Joel

Cutcher-Gershenfeld, The Impact on Economic Perfor-

mance of a Transformation in Workplace Relations,

44(2) Indus. Lab. Rel. Rev. 241, 241, 254 (Jan. 1991).

And a review of national business-survey data found

higher productivity in union-management collabora-

tive workplaces than in either non-union or union-but-

not-collaborative workplaces. Sandra E. Black & Lisa

M. Lynch, How to Compete: The Impact of Workplace

Practices and Information Technology on Productivity

3 (Natl Bur. of Econ. Research, Working Paper No.

6120, 1997), available at http-//Awww.nber.org/papers/

16

w6120.pdf; see also Appelbaum & Hunter, supra, at

266 (“[T]he benefits of [worker] involvement typically

outweigh costs associated with joint decision making.

Empirical evidence demonstrates improvements in

productivity, quality, delivery times, and even finan-

cial performance as a result of worker participation[.}”);

Michael Schuster, The Impact of Union-Management

Cooperation on Productivity and Employment, 36(3)

Indus. Lab. Rel. Rev. 415, 415, 430 (Apr. 1983) (after

partnership was implemented, productivity increased

at six of eight plants where it could be measured).

Union-management partnerships also often increase

employees’ commitment to employer mission and im-

prove staff morale by giving the workforce a sense of

“shared purpose,” Adler et al., supra, and “participa-

tion,” William Brock III, The Importance of Labor-

Management Cooperation, 11 J. Lab. Res. 225, 227,

229 (1990) (author served as Secretary of Labor from

1985-1987). See also Kochan et al., supra, at 203-04,

212 (partnership increased employee satisfaction,

which correlated with patient satisfaction); Sally

Klingel & David B. Lipsky, Joint Labor-Management

Training Programs for Healthcare Worker Advancement

and Retention 3, 55 (Cornell Univ., ILR Sch., Research

Studies & Reports, 2010), http://digitalcommons.ilr.

cornell.edu/cgi/viewcontent.cgi?article=1042&context=

reports (discussing morale improvement). And the

collaborative culture associated with successful part-

nership often spills over, easing labor-management

discussion of ordinarily contentious topics not

specifically within the partnership’s scope. See, e.g.,

Cutcher-Gershenfeld, supra, at 245 (at Xerox, “pat-

terns of problem-solving that developed around issues

in which there were strong common interests ... came

to inform the way potentially more contentious issues

were handled”).

17

Finally, labor-management partnerships benefit

employers in the area of workforce training. Today’s

economy demands high levels of “company-specific”

skill development, but employees are often reluctant

to invest in firm-specific skills unless they trust

their employer and feel their jobs are secure. See

Appelbaum & Hunter, supra, at 268-69. Union

involvement in joint labor-management training pro-

grams helps overcome this workforce hesitation by

creating “a sense of trust ... that supports increased

enrollment.” Klingel & Lipsky, supra, at 50-51. When

unions are involved, “the workforce more readily em-

braces participation in training,” id. at 50, and

completion rates are significantly higher than in com-

parable community-college programs. See The Value

Provided By Labor Management Training Partner-

ships In Healthcare, Healthcare Career Advancement

Program 3, http://www.h-cap.org/files/2011/04/LM-

Training-Partnerships.pdf (last visited Nov. 6, 2015)

(completion rates in joint labor-management training

programs at or above 75% compared to 39.1% for

community college).

Not surprisingly given this history and literature

demonstrating partnership’s benefits, experts have

long endorsed labor-management cooperation as a

useful employer strategy. The Reagan-era Department

of Labor took “a strong position in support of labor-

management coope! ation as an important prerequisite

to America’s return to preeminence in the world mar-

ketplace.” Stephen I. Schlossberg & Steven M. Fetter,

U.S. Labor Law and the Future of Labor-Management

Cooperation, 3 Lab. Law. 11, 12 (1987), available

at http://www jstor.org/stable/40862364 (article co-

authored by a Deputy Under Secretary of Labor); see

also Brock, supra, at 228, 229 (labor-management

cooperation is “logical and profitable,” “makes good

18

sense” and “is a matter of survival” in high-tech

society). A few years later, the Dunlop Commission,

convened by the Departments of Commerce and Labor

to study the future of labor-management relations,

concluded after an exhaustive literature review and

after hearing from hundreds of witnesses that the

evidence “is overwhelming that ... labor-management

partnerships are good for workers, firms, and the

— economy.” The Dunlop Comm’n on the Future of

orker-Management Relations, Final Report 8 (Dec.

. 1994), available at http://digitalcommons.ilr.cornell.

edu/cgi/viewcontent.cgi?article=1004&context=key_wo

rkplace.

B. Private Health Care Employers Benefit

from Labor-Management Partnerships.

Many private health care employers benefit from

labor-management partnerships and credit them with

“improviing] productivity and patient care” and creat-

ing a “competitive advantage.” Maimonides Med. Ctr.

et al., Strategic Alliance Rep. 2007: Creating Competi-

tive Advantage in a Changing Health Care Environ-

ment Through Worker Participation 1, 3 (2007),

http://www.ilr.cornell.edu/sites/ilr.cornell.edu/files/M

aimonides%20Report.pdf [hereinafter Maimonides).

These private employers’ experiences demonstrate the

usefulness of partnership as a business strategy and

the reasonableness of public employers who seek to

adopt it.

Kaiser's Labor Management Partnership (LMP) is

perhaps the best-known example of a successful

cooperative strategy in private health care. LMP,

created in 1997, is based on a series of agreements

between Kaiser and its employees’ unions and today

“covers more than 100,000 union members and tens of

19

thousands of managers and physicians.” What Is

Partnership?, LMP, http://Awww.lmpartnership.org/

what-partnership (last visited Nov. 6, 2015). Kaiser

describes its LMP as a “business strategy” to improve

care while reducing inefficiency, id. and Kaiser

“earned Medicare’s highest overall rating for quality

and service in its California, Colorado, Hawaii, Mid-

Atlantic States and Northwest regions” in 2014. Paul

Cohen, Unit-Based Teams Help KP Achieve Top

Medicare Ratings, LMP (Oct. 17, 2014), http//www.

lmpartnership.org/stories-videos/unit-based-teams-help

-kp-achieve-top-medicare-ratings.

Kaiser’s experience shows how union-management

partnership can serve employer interests. Kaiser’s

3,500 unit-based partnership teams (UBTs)—teams of

frontline managers, employees, and physicians, co-led

by management and labor—develop efficiency- and

quality-improvement projects that benefit the em-

ployer. See Kochan et al., supra, at 191-97; Cohen,

supra. One California UBT saved Kaiser an average

of $132,000 per operating room by codifying a new

protocol that reduced turnaround time between sur-

geries, increasing the number of daily procedures.

See Adler et al., supra (inset “A Collaborative Dance

at Kaiser Permanente”). Another UBT increased

patient screening for cancer, diabetes, and other risks

by improving follow-through on_ electronic-record

prompts from 80% to 95%. See Cassandra Braun,

Allergy Team Helps Screen for Cancer, LMP (Feb. 5,

2014), http:/Avwww.lmpartnership.org/stories-videos/

allergy-team-helps-screen-cancer. Partnership has

also improved the workplace culture at Kaiser by

“increas[ing] engagement of frontline staff’ and

“encouragling] greater openness and willingness to

change for both staff and management.” Lazes et al.,

supra, at 29, 19.

20

Other private health care employers benefit from

labor-management collaborative strategies as well. At

Pittsburgh’s Allegheny General! Hospital, for example,

a nurse-initiated partnership virtually eliminated

certain hospital-acquired, central-line and catheter-

associated infections, see Improving Care, Lowering

Costs, SETU 3 (Apr. 2015), https://action.seiu.org/page/-

/HospitalQuality.pdf [hereinafter Improving Care),

which are devastating for patients and costly for

health care employers because their treatment is not

Medicare-reimbursable, Hospital-Acquired Conditions

(Present on Admission Indicator), CMS (last modified

Sept. 29, 2014), https://Awww.cms.gov/Medicare/Medi

care-Fee-for-Service-Payment/HospitalAcqCond/index.

html. Allegheny and its employees have since formed

more labor-management teams, and, according to the

hospital’s Chief Nursing Officer, the hospital believes

partnership will “significantly improve ... patient

outcomes|.)” Improving Care, supra, at 3; see also

Maimonides, supra, at 3, 5, 18-24 (crediting labor-

management partnerships with “help[ing] Maimon-

ides to thrive in the ever-changing health care envi-

ronment” and “improv[ing] productivity and patient

care,” including by reducing waiting times for radiol-

ogy services by 40%, reducing patient falls by 50%, and

increasing on-time meal delivery from 80% to 90%).

C. Labor-Management Partnerships Serve

Public Health Care Employers’ Interests.

Much as private health care employers benefit from

labor-management collaborative structures, major

public-sector health care systems, including amici LA-

DHS and NYC-HH, rely on robust labor-management

partnerships to improve quality and efficiency. The

partnerships at LA-DHS and NYC-HH have, inter

alia, improved patient-satisfaction scores, increased

21

the percentage of patients who see their doctor

within fifteen minutes, reduced patient no-show rates,

and increased post-discharge follow-up for pediatric

asthma patients. Given all the evidence supporting

partnership and its successful use by private em-

ployers, LA-DHS and NYC-HH’s reliance on labor-

management collaboration is eminently reasonable,

well within their discretion, and ensures that public

health care systems will not be put at a “competitive

[disjadvantage” vis-a-vis their private-sector peers.

Maimonides, supra, at 1.

1. LA-DHS

LA-DHS is the second-largest municipal health

care system in the country with 19,000 staff

and 670,000 patients treated annually. See About

DHS, Health Servs. L.A. Cnty., http://dhs.lacounty.

gov/wps/portal/dhs/moredhs/aboutus/ (last visited

Nov. 6, 2015). LA-DHS has traditionally been a

“safety net” provider for low-income county residents,

but health care reform made the environment within

which LA-DHS operates more competitive and

accountability-driven by strengthening pay-for-perfor-

mance programs and giving newly insured, low-

income patients more choice among providers. These

changed market conditions have led LA-DHS to focus

even more aggressively on providing high-quality care.

See generally LA-DHS, 2013/2014 Annual Report

3 (2014), http-//file-lacounty.gov/dhs/cms1_221813.pdf

(hereinafter LA-DHS Annual Rep.). Recognizing

the importance of enlisting employee input and

support for needed changes, LA-DHS has made labor-

management partnership a key component of its

quality- and efficiency-improvement strategy. See,

e.g., Michael Wilson, DHS and SEIU 721 Focused on

System Improvement, Fast Facts from Dr. Katz (LA-

22

DHS, L.A., Cal.), Aug. 3, 2015, at 1-2, http-//file.

lacounty.gov/dhs/cms1_232049. pdf.

One particularly successful collaborative project

kick-started LA-DHS’s strategic focus on partnership.

With help from the Healthcare Career Advancement

Program, LA-DHS and SEIU Local 721 worked

together to educate front-line housekeeping and food-

service staff about working more efficiently, with

fewer toxic chemicals, and in ways likely to reduce

hospital-acquired infections. See Laura Chenven &

Danielle Copeland, Front-Line Worker Engagement:

Greening Health Care, Improving Worker and Patient

Health, and Building Better Jobs, 23(2) New Solutions

327 (Jan. 2013), abstract available at http://www.ncbi.

nlm.nih.gov/pubmed/23896075. The project improved

LAC-USC Medical Center’s score on the “cleanliness”

measure of a leading patient-satisfaction survey from

49% to 86%, id. at 335, which is important not only for

quality and customer-service reasons but also because

cleanliness scores are used to help determine hospital

reimbursement rates under Medicare’s “value-based

purchasing” methodology. See Hospital Value-Based

Purchasing, Medicare.gov, https:/Awww.medicare.gov/

hospitalcompare/data/hospital-vbp.htm] (last visited

Nov. 6, 2015).

Following the success of that project, LA-DHS

expanded its reliance on union-management collab-

orative work. At the system-wide level, LA-DHS

and SEIU Local 721 formalized their partnership

by forming a Labor Management Transformation

Council, with joint labor-management sub-committees

focused on, among other things, improving care

quality and patient experience. See Wilson, supra, at

1. At the clinic level, LA-DHS implemented a system

of labor-management Care Improvement Teams

23

(CITs), similar to Kaiser's UBTs, which meet on a

weekly basis to plan and implement projects that lead

to measurable improvements. See LA-DHS Annual

Rep., supra, at 10, 12, 23; Brian Yoshio Laing M.D.,

M.P.H. et al., A Quasi-experimental Evaluation of

Performance Improvement Teams in the Safety-Net: A

Labor-Management Partnership Model for Engaging

Frontline Staff, J. Pub. Health Mgmt. & Prac.

(forthcoming) (on file with author) (manuscript at 2),

abstract available at http:/journals.lww.com/jphmp/

Abstract/publishahead/A_Quasi_experimental_Evalu

ation_of_Performance.99727.aspx (UCLA study of

CITs). SEIU Local 721 gives the CIT program

credibility with frontline staff, and the union

contributes or has contributed to the program by

leveraging its members’ experiences with Kaiser for

LA-DHS’s benefit, selecting labor co-leads, dedicating

significant staff time and financial resources (includ-

ing paying a consultant to assist in implementation),

and funding and conducting union-member surveys to

surface quality-improvement ideas and encourage

employees to invest in collaborative work. See Laing

et al., supra, at 2; Interview with Patricia Castillo, L.A.

Cnty. Reg’] Health Dir., SETU 721, in L.A., Cal. (Sept.

10, 2015).

LA-DHS CITs have already achieved measurable

quality and efficiency improvements. One gastro-

enterology CIT developed a three-month program

focused on improving patient follow-up that reduced

appointment “no shows” by 18%. See MLK CIT Project

Report, SEIU 721, 1 (Jan. 26, 2015), https://

www.seiu721.org/MLK%2520projects%25201-28-15-2.

pdf (spreadsheet tracking CIT projects and results). A

hematology/oncology CIT increased from 45% to 100%

the number of patients who reported seeing their

physician within fifteen minutes of appointment time,

24

a key measure on a leading health care performance

survey. Id.; see also Laing et al., supra, at 6, table 3

(listing other CIT achievements, including increased

productivity); Improving Care, supra, at 6 (listing

additional CIT achievements, including reduced

pediatric-patient wait times).

LA-DHS’s CIT program has also been found to

increase staff “adaptive reserve,” which is defined as a

clinic’s ability to make and sustain change and which

is “important for success in adopting clinical improve-

ments.” Laing et al., supra, at 3. A UCLA study of

CITs’ effects at one facility found that the average

adaptive-reserve score in departments with labor-

management CITs increased by 0.11 units after six

months, while the average score in clinics without

CITs decreased by 0.13 units—a statistically signifi-

cant difference. Jd. at 4. The study's authors

described some staff who had previously participated

in improvement projects “imposed” or “dictated” by

management as being “skeptical” of cooperation, but

the authors found that workers who participated in

collaborative CITs “were less skeptical,” “gave more

examples of projects they were involved in which they

felt made a positive change,” and generally considered

the new, union-management joint teams “a positive

step.” Id. at 5.

2. NYC-HH

NYC-HH has also implemented and come to rely

on labor-management cooperation as an important

method for improving quality and efficiency.

NYC-HH is the largest municipal health care

system in the country, serving more than one million

patients annually. See NYC-HH, 2014 Report to

the Community (2014), http://www.nyc.gov/html/hbhce/

25

downloads/pdf/publication/20 14-hhc-report-to-the-com

munity.pdf. The system’s unionized workforce in-

cludes attending-physician members of SEIU’s Doc-

tors Council, intern and resident members of SEIU’s

Committee of Interns and Kesidents (CIR), and

licensed practical nurses and other front-line staff

represented by 1199SEIU United Healthcare Workers

East (1199 UHE).

Together, NYC-HH and its employees’ unions have

developed highly sophisticated labor-management

collaborative practices. For example, the health care

system and CIR (with help from CIR’s Policy and

Education Institute) recently launched resident

Quality Improvement Clinics, which have already led

to measurable quality-of-care improvements. See

generally Press Release, Resident QI Clinics Launch

at Harlem and Bronx-Lebanon Hospital Centers with

Mentorship from Society of Hospital Medicine, PEI &

Soc’y of Hosp. Med., http://Awww.cirseiu.org/2015/01/23/

transforming-residency-training/. The Clinics identify

areas for improvement and allow residents to develop

and lead quality-improvement projects, like a project

to reduce needle-stick rates and another to reduce the

readmission of pediatric asthma patients by improv-

ing attendance at post-discharge follow-up appoint-

ments. See, eg., Bhuvana Sunil, M.D. et al.,

Improving Post-Discharge Follow Up of Pediatric

Asthma Patients at Harlem Hospital: A Resident-Led

QI Project (2015), http://Awww.cirseiu.org/wp-content/

blogs.dir/53/files/2015/10/AHI-Abstract-Pediatric-asthm

a-QI-Clinic.pdf (abstract accepted for presentation at

the Academy for Healthcare Improvement Annual

Conference). The latter project had a goal of

increasing attendance at post-discharge follow-up

appointments from 37% to 75% over the course of nine

months and reached its target in its third month. Id.

26

NYC-HH, CIR and 1199UHE have also teamed up

to organize and conduct educational “Grand Rounds”

for staff on quality-of-care topics, such as medication

safety. See, eg., NYC Medication Safety Grand

Rounds Reach Hundreds, CIR Vitals (Oct. 18, 2012),

http://Awww.cirvitals.org/2012/10/18/nyc-medication-saf

ety-grand-rounds-reach-hundreds/. And NYC-HH

and CIR hold regular House Staff Safety Council

meetings, which provide residents a safe space to

raise patient-safety concerns, and the health system

and union co-sponsor patient-safety forums as well,

including one on improving medication safety. See

Letter from Alan D. Aviles, CEO/President, NYC-HH,

George Gresham, President, 1199SEIU & Hillary

Tompkins, M.D., President, CIR/SEIU Healthcare, to

NYC-HH employees (Nov. 1, 2011), http//Awww.cir

seiu.org/wp-content/blogs.dir/53/files/2015/10/Harlem-

Invitation.pdf (inviting staff to forum).

Partnering with labor gives these quality-

improvement efforts workforce credibility and encour-

ages frank employee participation, as NYC-HH

recognized and sought to benefit from in connection

with a staff safety-culture survey. A team of union and

management representatives drafted the survey,

which was used to evaluate residents’ perceptions of

safety culture, to identify ways to make patient-safety

training more robust, and to “[fajlign labor and

management goals on patient safety.” Mei Kong, R.N.

et al., An Assessment of Housestaff Experience of Safety

Culture: What the Residents Revealed, http:/Awww.cir

seiu.org/wp-content/blogs.dir/53/files/2015/10/HHC-NPS

F-Final-2.pdf (last visited Nov. 3, 2015). Because the

labor-management survey team understood that

involving CIR would maximize participation, the team

had the survey distributed by union members and

staff and also enlisted union staff to publicize the

27

survey and visit departments to collect completed

survey forms. Id.

NYC-HH freqvently partners with the physician-

members of SEIU’s Doctors Council as well, and the

NYC-HH/Doctors Council partnership will soon enter

a more intensive phase. Because of NYC-HH and the

Doctors Council’s shared belief that “input [from]

frontline clinicians into decision-making is essential”

and that “(hjigh clinician engagement” and “profes-

sional satisfaction” improve patient care, the health

care system and the doctors’ union have agreed to form

Collaboration Councils that will serve NYC-HH’s

mission by conducting quality-improvement projects

and identifying needed educational programs. NYC-

HH & Doctors Council, Collaboration Councils Agree-

ment, 4—8, http://doctorscouncil.org/wp-content/uploads

/2015/10/HHC-Doctors-Council-SEIU-Collaboration-Co

uncils-Contract-Language.pdf (last visited Nov. 6,

2015). Prior to agreeing to these new cooperative

structures, the Doctors Council commissioned Cornell

University to survey its members about their quality-

improvement interests, finding that 98% of union-

member respondents wanted quality improvement to

be a union priority. See QI Survey Says, Newsletter

(Doctors Council, New York, N.Y.), Apr. 2014, at 1,

http~//doctorscouncil.org/wp-content/uploads/2015/09/QI

-Mailer-April-2014-NF.pdf. The union also prepared a

white paper in consultation with Cornell to examine

the benefits NYC-HH could achieve through enhanced

partnership. See Doctors Council, Putting Patients

First Through Doctor, Patient and Community

Engagement 9 (Spring 2014), http://doctorscouncil.

org/wp-content/uploads/2015/10/White-Paper-Doctors-

Council-SEIU.pdf.

28

In all these circumstances, through all these joint

projects, labor-management partnerships serve public

health care employers’ quality and efficiency interests.

And in a world in which needed changes to workplace

practices all too often meet with resistance, generate

acrimony, or founder without adequate input from

staff, union participation in employer efforts helps to

elicit workers’ valuable ideas, gives such efforts

workforce credibility, and thus aids management in

achieving quality and efficiency goals that would be

harder to achieve unilaterally.

Ill. FAIR-SHARE FEES SERVE EMPLOYER

INTERESTS BY ENABLING AND

STRENGTHENING LABOR-MANAGEMENT

PARTNERSHIPS.

Just as it is clear that labor-management coopera-

tion often serves employer interests, it is equally clear

that fair-share fees enable and strengthen cooperative

efforts, making employers’ partnership strategies

more likely to succeed.

Fair-share-fee policies aid employers’ partnership

strategies in a number of ways. They play an im-

portant role in overcoming workforce skepticism about

cooperative efforts by ensuring that employers have

credible union partners capable of legitimating coop-

erative work among the rank and file. Fair-share-fee

policies also foster the kind of stable, cooperative

labor-relations environments necessary for successful

partnership, and they ensure that employers’ labor

partners have sufficient resources to make long-term

contributions to cooperative work, further validating

that work among employees and reducing employer

costs.

29

A. Fair-Share Fees Play an Important Role

In Overcoming Workforce Skepticism.

Research shows that many employees are initially

“skeptical” of labor-management cooperation, Laing et

al., supra, at 5, and that employee skepticism is a

significant obstacle to successful partnership. Employees

are skeptical because they fear that management will

not take their ideas seriously, will not follow through,

will retaliate against them for expressing concerns, or

will otherwise use information they provide against

them. See, e.g., The Dunlop Comm’n on the Future of

Worker-Management Relations, Fact Finding Report

49 (May 1994) [hereinafter Dunlop Fact Finding Rep.],

available at http://digitalcommons.ilr.cornell.edu/cgi/

viewcontent.cgi?article=1279&context=key _ ce

(workers had experienced management’s failing “to

follow through and stay committed to (partnership)

efforts”); Avgar et al., supra, at 15 (cooperation often

perceived as “risky” by employees because it requires

commitment to new model “with fewer employee

safeguards”); cf. Kochan et al., supra, at 78~79

(describing previous Kaiser program that collapsed

when managers used “program punitively”). These

employee fears are a significant obstacle to successful

partnership because employees’ frank participation in

collaborative structures depends on their feeling “safe”

and “effective” in voicing ideas. Avgar et al., supra, at

15; see also Dunlop Fact Finding Rep., supra, at 49

(“Workers must trust management to use the fruits of

worker participation to benefit employees as well as

shareholders.”).

One of employers’ few proven strategies for

overcoming workforce skepticism is to partner with

unions that are stable and well-respected enough to

legitimate cooperation in the eyes of the workforce. If

30

a union that employees see as an independent and

effective advocate commits to labor-management part-

nership, the union’s commitment effectively “vouches

for” cooperation and reassures employees that partici-

pating in partnership will be safe and effective. See,

e.g., Gittell, supra, at 166-67 (“Union representation

can give an organization increased legitimacy with its

employees, and thus serve as a key element of a

system of coordination and control if employee

representatives are respected. ...”) (footnote omitted);

Avgar et al., supra, at 15-16 (managerial engagement

with unions in a manner that gives the latter

“influence in the workplace” translates into “higher

levels of employee trust,” which is important for

partnership success). If a union or other employee

representative is seen ss weak and beholden to man-

agement, however, a partnership with that repre-

sentative is unlikely to have credibility with the

workforce and is, therefore, unlikely to generate

meaningful benefits for the employer. See, e.g., Irving

Bernstein, The Lean Years: A History of the American

Worker, 1920-1933, 163, 173 (Haymarket Books ed.,

2010) (1969) (describing employee-participation plans

that failed because worker representatives appeared

“timid” or focused on “curry[ing] favor with manage-

ment”); see also Gittell, supra, at 172—73 (describing

how most Continental Airlines employees became

dissatisfied with management-created employee inter-

est groups); cf. Dunlop Fact Finding Rep., supra, at 41

(“A strong alliance requires two strong members.”

(quoting management executive)).

For partnership-minded public employers facing

these realities, fair-share-fee requirements are an

important tool because they overcome the collective-

action problem that otherwise weakens even

31

employee-supported unions and reduces their

effectiveness as collaborative partners.

As economist Mancur Olson explained in his leading

work on collective action, unions provide goods that

benefit employees as a group, but individual employ-

ees have a personal interest in maximizing their own

income that is best served by their paying as little (and

their co-workers as much) for collective goods as

possible—especially when, as in the case of unions

subject to the duty of fair representation, free riding

by any individual employee is perceived by that person

as essentially cost-free. See Mancur Olson, The logic

of Collective Action: Public Goods and the Theory of

Groups 1-16, 33-52 (2d ed. 1971). Because of this

conflicting-interest dynamic, ‘rational, self-interested

individuals” will not secure the “optimal amount” of

union-provided “collective good[s]” that they would in

the abstract prefer unless induced in some way to

group action, such as by a fair-share-fee requirement.

Id. at 2, 35; see also id. at 15-16, 50—51.°

In other words, absent some policy that aids

employees in overcoming the collective-action hurdle,

unions will be weaker and less stable than employees

themselves actually want, see, e.g., id. at 34-35, 85—

® Robust, members-only benefits might in some circumstances

be sufficient to induce group action, but the option of relying on

such benefits is largely closed to unions by the duty of fair

representation. See id. at 75. Feelings of personal or emotional

commitment, as opposed to external inducements, might lead

some employees to “behave irrationally” for a time, continuing to

pay for collective union goods that peers enjoy for free, id. at 87,

but that phenomenon cannot be depended upon and will leave a

union less strong and less durable than it would otherwise have

been, id., than the employees themselves would want, see id., and

than many public employers, seeking the benefits of labor-

management collaboration, would have an interest in fostering.

32

87, and less able to further employer interests by

legitimating partnership strategies. Fair-share-fee

requirements provide the policy aid employees need to

overcome their collective-action hurdle, enabling them

to obtain the desired amount of union collective goods

and providing employers with strong, stable partners

capable of legitimating labor-management collabora-

tive work.

Data support the view that even employee-

supported unions are weakened and less effective as

collaborative partners if they cannot collect fair-share

fees. Unions operating in states that prohibit fair-

share-fee requirements are, for example, less finan-

cially stable than unions operating in states that allow

them, even though unions in both types of states must

demonstrate majority support. See, e.g., Email from

Bill Dempsey, SEIU Chief Fin. Officer, to Nicole

Berner, SEIU Deputy Gen. Counsel (Oct. 23, 2015,

4:27 EDT) (on file with author) (SEIU and one of its

fair-share-supported local unions had to provide

$9,747,760 in rebates and subsidies to Florida

affiliates and $2,761,577 in rebates and subsidies to

Texas affiliates between 2012 and 2014). A given

state’s prohibition of fair-share fees also often leads

almost immediately to a significant decline in union

membership, see, e.g., Jonathan Oosting, Mich. Union

Membership Dropped Significantly in 2014, First

Full Year Under Right-to-Work Law, mlive.com

(Jan. 23, 2015), http:/Awww.mlive.com/lansing-news/

index.ssf/2015/01/michigan_union_membership_down.

html, which is a result much more easily explained by

the economic principles discussed above than by some

33

sudden, en masse ideological change. Cf. Olson, supra,

at 1-16, 34-35, 87.’

Given these dynamics and data, it is entirely

reasonable for public employers to believe that fair-

share-fee policies foster the kind of stable, credible

union partners capable of legitimating partnership

work, and, therefore, for public employers to see fair-

’ Recent behavioral-economics work provides additional

evidence that prohibiting fair-share fees artificially reduces

union strength and stability, undermining labor’s usefulness as a

collaborative partner. Behavioral economists have shown that

individuals make purchasing decisions not only on the basis of

goods’ absolute or abstract value but also on the basis of goods’

comparative prices and potential purchasers’ financial standing

vis-a-vis their peers. See, e.g., Dan Ariely, Predictably Irrational:

The Hidden Forces That Shape Our Decisions 2-21 (revised &

expanded ed. 2009); Cass R. Sunstein & Robert H. Frank, Cost-

Benefit Analysis and Relative Position 2-3, 9-10 (Univ. of

Chicago, John M. Olin Law & Econ. Working Paper No. 102,

2000), http-//papers.ssrn.com/sol3/papers.cfm?abstract_id=237665.

This means that a $10 union membership seems less expensive

to an employee whose peers pay $8 fair-share fees (scenario A)

than to an employee whose co-workers pay $0 but get the same

advantages (scenario B), even though the membership price is the

same in both cases. This is so because $10 compares more

favorably to $8 than to $0 and because being $2 less well off than

one’s peers is better than being $10 less well off. See Sunstein &

Frenk, supra, at 2-20. For these reasons as well, a union's

strength and effectiveness, including as a collaborative partner,

is likely to suffer in the absence of fair-share fees, even when most

That unions deprived of fair-share fees will be weaker than

employees actually want is further demonstrated by the fact that

when employees have been given a vote on fee policies they

have chosen overwhelmingly to impose fee requirements on

themselves. See Olson, supra at 85 (when union-shop policies put

to a vote, “more than 90 per cent of the employees votied) for

compulsory union membership”).

34

share-fee policies as furthering their interests in

reaping the benefits of cooperation.

B. Fair-Share Fees Encourage Cooperative

Culture.

Fair-share fees also play an important role in

enabling and strengthening labor-management part-

nerships by reducing incentives unions and employers

might have to treat each other as adversaries.

Labor-management partnership strategies perform

best in workplaces with collaborative rather than

adversarial labor-relations cultures. Indeed, the

“benefits of [partnership] rest, to a large extent, on the

ability of labor and management to reconfigure their

relationship from adversarial to collaborative.” Avgar

et al., supra, at 10-11. The “less cooperative the

relationship between labor and management,” the less

likely it is that the parties will “be able to discover or

realize joint gains.” Appelbaum & Hunter, supra, at

288; see also Klingel & Lipsky, supra, at 21 (according

to executive, “hospitals with more traditional, arms-

length relationships with unions are less likely to fully

utilize [joint] Training Fund benefits”).

Fair-share-fee policies aid the difficult transition

from adversarial to collaborative culture by eliminat-

ing a key reason for labor combativeness: institutional

insecurity. An unstable and institutionally insecure

union must constantly campaign to overcome the free-

rider problem and shore up its finances, and a union

in campaign mode has an incentive to emphasize the

dangers employees face if the union is weak, which

invites adversarial labor-management relations. See,

e.g., Neil W. Chamberlain & Donald E. Cullen, The

Labor Sector 173 (2d ed. 1971) (insecure unions have

incentive to “mak[e] excessive demands” or “process[]

35

unwarranted grievances” to “demonstrate that they

can ‘get something’ for their members”); Appelbaum

& Hunter, supra, at 285, 288 (unstable unions’

“continued attention to ... security” can “distract” from

joint work, and insecure unions will “find it difficult to

engage” in important “kinds of cooperation”); see

generally id. at 282 (“As with other partnerships, the

institutional security of the union and the perception

of the union that management will not ... undermine

that security are important prerequisites for

success[.]”). Thus, fair-share-fee requirements, by

providing union security, enable partnership success.

C. Fair-Share Fees Encourage Long-Term

Commitments To Cooperation.

Finally, fair-share-fee requirements serve employ-

ers’ interests by ensuring that their union partners

can make long-term financial (and other) contribu-

tions to cooperative work, further validating that work

among employees and increasing the chances for part-

nership success.

Experts agree that employee “buy-in” in the form of

labor contributions to partnership makes cooperation

much more likely to succeed and also that it takes time

for labor-management partnerships to generate maxi-

mum benefits. See Dunlop Fact Finding Rep., supra,

at 46 (“workplace innovations that remain in place

over an extended period of time and are integrated

into a system’s approach ... produce the most improve-

ments in economic performance”); id. at 36-37 (“some

employee participation efforts do not survive long

enough to have significant positive economic effects”

and those in which “the union is ... a joint partner with

management are particularly likely to survive”);

Kochan et al., supra, at 22 (“[Partnerships] require the

36

resources and fortitude to invest in infrastructure and

joint processes that take time to show results.”);

Klingel & Lipsky, supra, at 56-57 (union members’ trading

other gains for partnership benefits “increas[es] their

commitment” and gives them a “shared stake” in the

success of labor-management training funds). Fair-

share-fee requirements provide the stability and

resources unions need in order to make the kind of

significant, long-term investments in partnership that

help employers’ cooperative strategies succeed.

For these and all the other reasons given above, it is

eminently reasonable for public employers to sez

fair-share-fee policies as serving their interest in

successful labor-management partnership, and public

employers’ interest in successful partnership weighs

heavily against petitioners’ claims. Public employers

should have the same ability private employers have

to reap the benefits of cooperation—not be put at a

competitive disadvantage with respect to those benefits.

37

CONCLUSION

The Ninth Circuit’s decision should be affirmed.

MARY C. WICKHAM

Interim County Counsel

COUNTY OF LOS ANGELES

OFFICE OF THE COUNTY

COUNSEL

648 Kenneth Hahn Hall of

500 W. Temple St.

Los Angeles, CA 90012

(213) 974-1811

mwickham@counsel.

lacounty.gov

JUDITH A. SCOTT

General Counsel

NICOLE G. BERNER

Deputy General Counsel

SERVICE EMPLOYEES

INTERNATIONAL UNION

1800 Massachusetts Ave., N.W.

Washington, DC 20036

(202) 730-7383

judy.scott@seiu.org

Respectfully submitted,

CLAIRE PRESTEL

Counsel of Record

EVIN F. ISAACSON

JAMES & HOFFMAN, P.C.

1130 Connecticut Ave., N.W.

Suite 950

Washington, DC 20036

(202) 496-0500

cpprestel@jamhoff.com

SALVATORE J. RUSSO

Senior Vice President

General Counsel

NYC HEALTH + HOSPITALS

125 Worth St.

New York NY 10013

(212) 788-3300

salvatore.russo@nychhc.org

WALTER KAMIAT

7305 Alaska Ave., N.W.

Washington, DC 20012