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

Supreme Court brief2015

Ask Donna

What actually matters in this document.

Text

No. 14-915 ome 8 9 ne on

cr rice or 7: t ct: wey

—_—- oo

IN THE

Supreme Court of the Anited States

REBECCA FRIEDRICHS et al.,

Petitioners,

CALIFORNIA TEACHERS ASSOCIATION, et al.,

Respondents.

ON APPEAL FROM THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE CITY OF NEW YORK AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

ZACHARY W. CARTER

Corporation Counsel of

the City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

Counsel for Amicus Curiae

RICHARD DEARING*

CECELIA CHANG ©

JASON ANTON

*Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...............cccccccccesseeeeees iii

INTEREST OF AMICUS CURIAE..................ccc0000 1

SUMMARY OF THE ARGUMENT .......0.00........00004. 5

TTT tninciiciencnsieniensianesnnennttnestnanccsienancsestensenesent 6

I. The City Adopted Agency Shop Fees in

Response to a Series of Devastating Strikes

that Imposed Massive Public Harm. .................. 6

A. The City Was an Early Adopter of

Collective Bargaining as a Public Labor

ese eerenennscmenenets 8

B. The Right to Collectively Bargain, By

C. The City Advocated for Agency Shop

Provisions to Complete Its Development

of an Effective Collective Bargaining

i aah tertntenienmntmananenecnnanen 17

D. New York City’s Experience Confirms

that Agency Shop Fees Protect the

SE 20

II. Petitioners and Amici Ignore the Compelling

Public Interest in Solutions That Reduce the

Risk of Public-Sector Strikes and Disruption

I cncnitinnndisinninssmeinisitinamitaibianaiaiaies 22

Ill. Differing Labor Laws Reflect Fundamental

Policy Choices About Labor Management

and Government and Provide No Reason to

Constitutionalize a Single Rule Prohibiting

REE DO cecenenscmenmennmnin 28

ee 37

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Educ.,

ree Ce TD setitienicnsertemennncessene

Bauch v. New York,

21 N.Y.2d 688 (1968) .................cccccccceees

Bond v. United States,

Garcia v. San Antonio Metro. Transit

Auth.

469 U.S. 528 (1985) oocccccseseccccccccssessseseee

Kelo v. City of New London,

Be ED ceccneneccnnsssemnecesnensens

Natl League of Cities v. Usery,

Fs CIID cerencscncerncsvesseeccnnsocees

Statutes

Act of Aug. 3, 1977, ch. 677, 1977 N.Y.

Sess. Law 1081 (McKinney)..................

Act of July 24, 1992, ch. 606, 1992 N.Y.

Sess. Laws 1650 (McKinney) ................

Page(s)

Condon-Wadlin Act, ch. 391, 1947 N.Y.

ee eee 8

Local Law No. 1 (1972) of City of New

Ree ae eee 18

Local Law No. 53 (1967) of City of New

WD enesnenscennesevsrsnmavemessiemnmnensmanemmnnmecagesessaneneees 14

Mich. Comp. Laws § 423.210(3)(c).....................00+. 35

Mich. Comp. Laws § 423.210(4)................-..ceeeesceee 30

N.Y.C. Admin. Code § 12-302 ....................0sesseeeeess 32

N.Y.C. Admin. Code § 12-303(k)...............cccccecceses 32

N.Y.C. Admin. Code § 12-310(a)(2)...................0002- 32

N.Y.C. Admin. Code § 13-216(a)(5)—(12) ............... 32

National Labor Relations Act, ch. 372, 49

Ss SE icteiticrscinirntecnasiininncsinientimieapvntensenenn 8

Ohio Rev. Code Ann. § 4117.14(D)(2).................... 31

Public Employees’ Fair Employment Act

(Taylor Law), ch. 392, 1967 N.Y. Sess.

Laws 393 (McKinney) ......................0++++ 10, 13, 14

Texas Gov't Code § 617.002 .................ssssssessesecseees 29

ts tt IID crrencnnniennensnsensensntanimnantepesannis 30

ee ey Oe ee tenscncensscenionsmnnnsnsnmemusensonmenns 30

Wis, Stat. § 111.845 .....cccccccccsccsscecsccsuecsvessessneesnneesns 30

Other Authorities

Pe | enone 26

About, N.Y.C. Office of Collective

SIT oncnicrserngnndenmebdeimnninincmmpnsenminnmennet 32

Admin. Order (Mayor Beame) No. 38

ITI claciedninetheneesteaeneaentaniallaaiattasiatiiiaiaiiiesaenrenrenemeil 20

Alexander E.M. Hess, The 10 Largest

Employers in America, USA Today

(Aug. 22, 2013, 7:48 AM) .....cccccccceccccececcsesesseseeees 2

Annual Estimates of the Resident

Population for Incorporated Places of

50,000 or More, Ranked by July 1, 2014

Population: April 1, 2010 to July 1,

2014, U.S. Census Bureau (2015)..................... 23

The Big Crush, N.Y. Times, Jan. 3, 1966............... 12

Bill Jacket for Act of Aug. 3, 1977, ch. 677............ 19

Brian A. Reaves, U.S. Dep’t of Justice,

Bureau of Justice Statistics, Local

Police Departments, 2013: Personnel,

Policies, and Practices (2015)..................0000000++- 26

Derek Thompson, Why Do the Smartest

Cities Have the Smallest Share of

Cars?, The Atlantic (Jan. 22, 2014) .................. 25

Emanuel Perlmutter, Shots Are Fired in

Refuse Strike; Filth Litters City, N.Y.

, 8 een 15

Emanuel Perlmutter, Welfare Help in a

City Curbed by a Walkout, N.Y. Times,

GR iy BE cicccthcntlnprnnsciserncsscsscssssenscsaninessccsssessse 11

Emanuel Perlmutter, Welfare Strike Due

in City Today in Spite of Writ, N.Y.

, «+ 4 % SRS ee 1l

Enrollment, Poverty, and Federal Funds

for the 100 Largest School Districts, by

Enrollment Size in 2010, U.S. Dep’t of

Educ., Nat'l] Ctr. for Educ. Statistics

STITT isesetteiaiiunsciiveestigitdinaaialenedinenbabaiaaneaiatiititanraaiartmmamasitiid 26

Eric Jaffe, The Time the Teacher’s Union

Saved New York from Bankruptcy,

CityLab (July 24, 2013) ..............ccccesseeceeeeeseeeees 33

Exec. Order (Mayor Wagner) No. 49 (1958)............ 9

Exec. Order No. 10,988, 3 C.F.R. 321

ERATE REESE ERe Or es CEO 10

Fragrant Days in Fun City, Time, Feb. 16,

STITT scisiinslsnieiinhdheehindatiepiiaaladeiniieiainaiatdna anti abeninaes 15

Governor’s Comm. on Pub. Emp.

Relations, Final Report (1966) .....................00. 12

Homer Bigart, New Talks Today: Quill

Scores Mayor—Says Walkout Could

Last for a Month, N.Y. Times, Jan. 2,

Inside DSNY, N.Y.C. Dep’t of Sanitation ......

Jack Spencer, Right-to-Work Bills Pass

Michigan House, Senate, Mich. Capitol

Confidential (Dec. 7, 2012) .............c0.cccc00e.

Jeffrey A. Kroessler, New York Year By

Year: A Chronology of the Great

Metropolis (2002) .............:0.00:ecceeeeeeeeeeeeeeees

John V. Lindsay, City of N.Y., Report

Submitted Pursuant to Chapter 24,

Laws of 1969, Designed to Bring New

York City’s Labor Relations Practices

into Substantial Equivalence with the

Public Employees’ Fair Employment

BE atdinnictrnnnansiccodaststncdiluasthianmenteines

John V. Lindsay, City of N.Y., Report and

Plan Submitted Pursuant to Chapter

24, Laws of 1969, Designed to Bring

New York City’s Labor Relations

Practices into Substantial Equivalence

with the Public Employees’ Fair

Employment Act (Taylor Law) (1969),

reprinted in New York Legislative

Service, NYLS’ New York City

Legislative History: 1972 Local Law #1

eee icicancncsiccminnnnnsitnniiininniniietndasuiiennsneonses

Joshua B. Freeman, Working-Class New

York: Life and Labor Since World War

iF i ceninbcsnisescnsseneeainansetninemenatinenmamens

Leonard Buder, Parents Smash Windows,

Doors to Open Schools, N.Y. Times,

Sie SI See iicincereriGeccscnesctsmnsamiieionsenenesonoens

Leonard Buder, Strike Cripples Schools,

No Settlement in Sight, N.Y. Times,

SR SNE He cicensnsictitnicaceenecciiiheneiuennnnieciemnenen

Letter from Governor’s Comm. on Pub.

Emp. Relations to Governor Nelson A.

Rockefeller (Jan. 23, 1969) ....................0200-

Letter from Herbert L. Haber, Dir., Office

of Labor Relations, to Joseph V.

Terenzio, Comm’r, Dep’t of Hosps.

GI TR) BIN ccrcsnnccsenstrevevecsasesnensescsecsonsoseees

Mark Niquette, Walker’s Bill Gives

Wisconsin Police a Pass on Pension

Payments, Bloomberg (Feb. 25, 2011,

Mayor’s Office of Operations & Dep’t of

Citywide Admin. Servs., 2013

Workforce Profile Report (2013) .................

Memorandum from Donald H. Wollett,

N.Y. State Office of Emp. Relations, to

Judah Gribetz, Counsel to the

Governor (July 29, 1977), reprinted in

Bill Jacket for Act of Aug. 3, 1977, ch.

Michael Marmo, More Profile than

Courage: The New York City Transit

I ne

Mike Maciag, Mapping the Nation’s Most

Densely Populated Cities, Governing

Ge Sis Se ircirnennetventenvicnaminininentsancssonsce

Mike Pesca, The True Cost of the NYC

Transit Strike, NPR (Dec. 21, 2005,

The MTA Network, Metro. Transp. Auth.......

N.Y.C: Dep’t of Planning, The Newest New

RE Ss Se a ea

News Summary and Index: The Major

Events of the Day: Transit Strike, N.Y.

, EE Ee 11

The Police Strike in New York, Chi. Trib.,

I GIN: Gis CU cesccenceitensccncescestoneceseneees 16

Population Facts, N.Y.C. Dep’t of Planning.......... 24

Presentation by the Majority Leader,

Thomas J. Cuite, reprinted in New

York Legislative Service, NYLS’ New

York City Legislative History: 1972

eae 18

Press Release, City of N.Y., Mayor de

Blasio and NYC & Company Announce

New York City Welcomed an All-Time

Record 56.4 Million Visitors in 2014

8 RS ES eee 24

Richard L. Rubin, Memorandum in

Support, reprinted in Bill Jacket for

pf ER eee 18

Right-To-Work Resources, Nat’] Conf. of

State Legislators (2015).........2..........seccceseeeeeeees 28

Richard Reeves, Police: ‘Attention Must Be

Paid!’ Say.the Men on Strike, N.Y.

A a tissticttetate 16

Ronald Donovan, Administering the

Taylor Law: Public Employee Relations

NS ciinticcnisedatsiivinictnnninnmanss

Ruth Milkman & Stephanie Luce, The

State of the Unions 2015 (2015)................

Sam Roberts, Commuters Nearly Double

Manhattan’s Daytime Population,

Census Says, N.Y. Times: City Room

(June 3, 2013, 11:56 AM) .................0000000-

Sam Roberts, Mamuj? Vlashki? Garifuna?

In New York, You Hear It All, N.Y.

es A SIE SIE cttnicctiinicnsiocitncindeitionienatinn

Statistical Summaries, N.Y.C. Dep’t of

ERE RATER ESET NEL nial

Steven Greenhouse, The Wisconsin

Legacy, N.Y. Times, Feb. 22, 2014............

Strict Rules Set on Travel into the City

During Strike, N.Y. Times, Jan. 1,

Strike’s Bitter End, Time, Nov. 29, 1968 .......

Tad Fitch, J. Kent Layton & Bill

Wormstedt, On a Sea of Glass: The Life

and Loss of the RMS Titanic (2013) .........

Terry O’Neil & E.J. McMahon, Empire

Ctr., SR4-07, Taylor Made: The Cost

and Consequences of New York’s

Public-Sector Labor Laws (2007) .............. passim

This Beleaguered City, N.Y. Times, Jan.

EE Ce eee 12

Union Membership, Coverage, Density and

Employment by Combined Statistical

Area (CSA) and MSA, 2014,

I a celtiimitibiantio 1

The Wagner Ctr. for Int'l Bus., Baruch

College, Table 17.I.D: New York City

(NYC) Number of Households — by

Income Range, NYCdata.....................cecceeeeeeeeeees 1

INTEREST OF AMICUS CURIAE

New York City has a compelling interest in the

stability of its labor unions. The City ranks first

nationwide in the number of households protected

by unions.! One-fourth of its resident wage and

salary earners are union members.? Accordingly,

unions, including unions that serve public workers,

are critically important to supporting the over one

million working- and middle-class families in the

City.

The agency shop fee question at issue in this

case is of particular significance to the City. The

City employs over 325,000 workers—more

employees than all but the nine largest companies

1 Compare Ruth Milkman & Stephanie Luce, The State of the

Unions 2015, at 1 (2015), available at https://www.gc.cuny

.edu/CUNY_GC/media/CUNY-Graduate-Center/PDF/Comm

unications/1609_Union_Density2015_RGB.pdf, with Union

Membership, Coverage, Density and Employment by

Combined Statistical Area (CSA) and MSA, 2014,

Unionstats.com, http://unionstats.gsu.edu/Met_114b.htm (last

visited Nov. 13, 2015).

2 Milkman & Luce, supra note 1, at 1.

3’ The Wagner Ctr. for Int'l Bus., Baruch College, Table 17.1.D:

New York -City (NYC) Number of Households — by Income

Range, NYCdata, https://www.baruch.cuny.edu/nycdata/

income-taxes/hhold_income-numbers.btm (last visited Nov.

13, 2015).

in the country*—and 93% of these workers are

represented by a union.6 To promote the

uninterrupted provision of services to City

residents, the City pioneered granting public

employees the right to organize and negotiate, and

for decades has operated a successful collective

bargaining scheme in which agency shop fees play

an integral role. The City submits this brief to

explain its unique history and experience with

these fees.

Collective bargaining activities in New York

City—comprising labor negotiations, contract

administration, and pursuit of administrative and

judicial remedies—are time- and resource-intensive

and require extensive expertise from both the

government and union sides. Successful labor

relations also require trust between the parties and

willingness to compromise. By providing a source of

funding based on all of the employees a union

represents and bargains for, agency shop fees allow

the City’s public-sector unions to effectively pursue

bargaining strategies that benefit all members

¢ Alexander E.M. Hess, The 10 Largest Employers in America,

USA Today (Aug. 22, 2013, 7:48 AM), http://www.usatoday

.com/story/money/business/2013/08/22/ten-largest-employers/

2680249/.

5 Mayor’s Office of Operations & Dep’t of Citywide Admin.

Servs., 2013 Workforce Profile Report 35 (2013), http://www.

nyc.gov/htm)/dcas/downloads/pdf/misc/workforce_profile_

report_12_30_2013.pdf.

broadly, rather than short-term or confrontational

strategies that may only advance the interests of

the factions of employees most willing to pay fees.

By protecting the long-term financial stability of

unions as bargaining partners, agency shop fees

help support unions as effective and responsible

bargaining partners, enabling unions to build long-

lasting and productive relationships with the City

that benefit all residents.®

Key among the benefits of an _ effective

partnership and a successful collective bargaining

system is the overriding benefit of labor peace,

which the City has a particularly compelling

interest in maintaining. No other jurisdiction in the

nation has more first-hand experience with the

immense public cost of labor disputes that go

unresolved through. collective bargaining. In the

1960s and 1970s, the City endured a series of

paralyzing strikes by public school teachers, police

officers, and other public workers that harmed

millions of City residents, including union members

and their families.

The City’s longstanding commitment to stable

and effective public unions as partners in collective

bargaining stems from this direct experience. Those

difficult decades directly informed the adoption of

new collective bargaining laws, which incorporated

6 See, e.g., Brief for the Attorney General of California at 40.

the same agency shop provisions common for

unionized workers in private industry. The City’s

strategy has worked. Few labor disputes now result

in strikes that impair the provision of public

services.

For nearly half a century, New York City has

relied on a collective bargaining system, built on

long-term union stability buttressed by agency shop

fees, to ensure that labor disputes are settled at the

negotiating table without union members risking

their livelihoods or City resi..ents losing access to

critical governmental services. Prohibiting agency

shop fees would strip jurisdictions like New York

City of a tool that has for years helped foster

productive relationships between governments and

their public workforces, without providing any

substitute solution or reassurance for the millions

of everyday New Yorkers, including the City’s

public employees, who would ultimately bear the

cost of any resulting public strikes. Based on its

experience in the 1960s and 1970s, New York City

has determined that the risk of work stoppages is

not worth taking. This Court should not compel the

City to ignore the lessons of its history and bear

that risk going forward.

SUMMARY OF THE ARGUMENT

Under traditional collective bargaining models,

employees have the nght to select a union as their

exclusive representative in negotiations. Agency

shop provisions allow unions to charge employees

who decline to join the union a fee to defray the cost

of non-political activities that benefit all employees.

Nearly forty years ago, this Court upheld the

constitutionality of agency shop provisions in

Abood v. Detroit Board of Education,’ and, relying

on Abood, jurisdictions across the nation have

legalized, and negotiated, agency shop

arrangements to support public-sector collective

bargaining.

New York City submits this brief to make three

main points. First, as the City’s history illustrates,

agency shop fees are directly linked to protecting

the public as a whole from the disruption of

government services caused by labor disputes. The

City embraced agency shop arrangements as part

of a comprehensive labor management scheme at a

time when existing collective bargaining procedures

failed to stem ongoing labor unrest. The change in

course helped to stabilize labor relations for the

benefit of not just the City’s workers, but all City

residents.

7 431 U.S. 209 (1977).

Second, New York City’s experience

demonstrates that petitioners’ conception of the

government interest in agency shop fees is far too

circumscribed. Because of the potentially massive

public harm that can arise from the disruption of

services, tools that reduce the risk of public-sector

strikes—like agency shop fees—are supported by a

compelling government interest that far exceeds

mere administrative convenience alone.

Third and finally, petitioners and amici are

wrong in pointing to differing labor laws

nationwide as support for overruling Abood.

Crafting a public labor relations strategy requires

complex policy judgments, and jurisdictions across

the nation confronting different circumstances may

reasonably select different solutions. But Abood

wisely left those choices to the political process, a

ruling this Court should keep in place.

ARGUMENT

I. The City Adopted Agency Shop Fees in

Response to a Series of Devastating Strikes

that Imposed Massive Public Harm.

In the City’s experience, it is has been, and

remains, both prudent and compelling public policy

to promote municipal employees’ right to

collectively bargain through unions. Collective

bargaining serves to protect and advance the

interests of all public wage-earners and their

families, and also makes the provision of

government services more effective.

While these benefits are of tremendous

importance to City residents in their own right,

they are second to the public’s related and

overriding interest in labor peace. Whatever the

cause for labor disputes, including situations where

workers have legitimate complaints about their

employment conditions, the public has a compelling

interest in not bearing the brunt of labor

disagreements. The City submits this brief to

explain that interest. As the City’s history

illustrates, collective bargaining systems supported

by agency shop fees were born from a sustained

period of repeated public work stoppages. This

experience offers an essential historical lesson

about the catastrophic costs of discord between

public employees and their government employers,

absent a robust and effective system of collective

bargaining that is trusted by both sides to work in

the long run.

A. The City Was an Early Adopter of

Collective Bargaining as a Public Labor

Relations Model.

Congress granted private-sector workers the

right to organize and bargain in 1935.8 For decades,

however, no similar system existed for public-sector

workers. Instead, many States, including New

York, attempted to deal with public labor disputes

by simply banning government workers from

striking and imposing harsh fines on violators.®

But simply banning strikes without providing

an effective mechanism to address and remedy the

sources of labor complaints and disagreements

proved inadequate. In response, the City

pioneered collective bargaining as a way to fairly

resolve public labor disputes without employees

feeling compelled to walk out on the job.

8 See National Labor Relations Act, ch. 372, § 7, 49 Stat. 449,

452 (1935) (codified as amended at 29 U.S.C § 157 (2012)).

® See Condon-Wadlin Act, ch. 391, 1947 N.Y. Laws 256

(repealed 1967); see also Terry O’Neil & E.J. McMahon,

Empire Ctr., SR4-07, Taylor Made: The Cost and

Consequences of New York’s Public-Sector Labor Laws 3

(2007), available at http://www.empirecenter.org/wp-content/

uploads/2013/06/Taylor-Made.pdf.

10 O’Neil & McMahon, supra note 9, at 3 (noting Condon-

Wadlin’s “mixed effectiveness”).

In 1958, Mayor Robert F. Wagner issued an

executive order authorizing collective bargaining

through public labor unions for certain groups of

City workers.!! The order recognized that “labor

disputes between the City and its employees

[would] be minimized, and that effective operation

of the City’s affairs in the public interest [would] be

safeguarded, by permitting employees to

participate...through their freely chosen

representatives in the determination of the terms

and conditions of their employment.”!2 It

established the City as “one of the first jurisdictions

in the nation to adopt an essentially private sector

model for municipal labor relations.”!3 Similar

rights would not be granted to state workers in any

State until 1959,!* to federal public employees until

11 See Ronald Donovan, Administering the Taylor Law: Public

Employee Relations in New York 14 (1990) (describing the

Executive Order); O’Neil & McMahon, supra note 9, at 4.

12 Exec. Order (Mayor Wagner) No. 49 § 2 (1958).

13 Michael Marmo, More Profile than Courage: The New York

City Transit Strike of 1966, at 72 (1990).

14 Donovan, supra note 11, at v; Steven Greenhouse, The

Wisconsin Legacy, N.Y. Times, Feb. 22, 2014, at BU1.

1962,'5 or to New York State public employees until

1967.16

B. The Right to Collectively Bargain, By

Itself, Failed to Ensure Labor Stability

in the City.

The right to collectively bargain, however, even

paired with a ban on public-sector strikes, proved

ineffective at providing sufficient stability in labor

relations to prevent the public harms from strikes

by government workers. Rather, the City was the

epicenter of a series of strikes in the mid- to late-

1960s and early 1970s; state officials saw the City

as the poster child for the failure of then-existing

law to “protect vital public interests.”!7 Regardless

of whether it was the City, the unions, or both that

caused negotiations to be unsuccessful, the effect of

the resulting strikes on ordinary New Yorkers—

including union members—was profound.

16 Exec. Order No. 10,988, 3 C.F-R. 321 (1959-1963).

16 See Public Employees’ Fair Employment Act (Taylor Law),

ch. 392, §§ 202—03, 1967 N.Y. Sess. Laws 393, 396 (McKinney)

‘codified as amended at N.Y. Civ. Serv. Law §§ 202-03

(2015)); see also O’Neil & McMahon, supra note 9, at 6.

1? Letter from Governor’s Comm. on Pub. Emp. Relations to

Governor Nelson A. Rockefeller 10 (Jan. 23, 1969) (on file

with the New York City Law Department).

The first wave of public-sector strikes hit the

City in the mid-1960s:

In 1965, eight thousand City welfare

workers went on strike for twenty-eight

days, causing two-thirds of the City’s

welfare centers to close.'* The result was

a disruption in vital services for 500,000

welfare recipients, many of whom were

children or elderly.'®

On New Year’s Day in 1966, City transit

workers began a twelve-day strike that

caused economic losses in excess of $100

million per day.2° The strike effectively

shut down the City’s subway and bus

system, overwhelming railroads,

producing historic traffic jams, closing

public schools, and forcing the mayor to

18 See Joshua B. Freeman, Working-Class New York: Life and

Labor Since World War II 205 (2000); O'Neil & McMahon,

supra note 9, at 3.

19 Emanuel Perlmutter, Welfare Help in a City Curbed by a

Walkout, N.Y. Times, Jan. 5, 1965, at 1, 21; Emanuel

Perlmutter, Welfare Strike Due in City Today in Spite of Writ,

N.Y. Times, Jan. 4, 1965, at 1, 25.

2 Donavan, supra note 11, at 19; Marmo, supra note 13, at

151; O’Neil & McMahon, supra note 9, at 4; see also News

Summary and Index: The Major Events of the Day: Transit

Strike, N.Y. Times, Jan. 5, 1966, at 33.

devise “the most urgent civil defense plan

New York City has ever had to improvise

for its own health and safety.”2! The New

York Times observed that “[s]eldom in its

history ha{d] New York City been through

more difficult days,” and that “not since

the draft riots of the Civil War ha[d] the

normal course of life in this city been

more profoundly altered for so many

days.”22

Not surprisingly, in the aftermath of such vast

disruption, securing resolution of labor disputes

through an effective bargaining system became the

foremost priority of City and State government

alike. In 1967, based in large part on the City’s

experience, New York State enacted the Taylor

Law, which created a comprehensive scheme for

public-sector labor relations designed to “protect/]

the public against the disruption of vital public

services ..., while at the same time protecting the

rights of public employees.”22 The Taylor Law

21 The Big Crush, N.Y. Times, Jan. 3, 1966, at 26; Homer

Bigart, New Talks Today: Quill Scores Mayor—Says Walkout

Could Last for a Month, N.Y. Times, Jan. 2, 1966, at 1, 58;

Strict Rules Set on Travel into the City During Strike, N.Y.

Times, Jan. 1, 1966, at 1, 6.

22 This Beleaguered City, N.Y. Times, Jan. 12, 1966, at 20.

28 Governor's Comm. on Pub. Emp. Relations, Final Report 9

(1966) (internal quotation marks omitted) (on file with the

New York City Law Department); see also Public Employees’

maintained the prohibition on public employee

strikes, but was also designed to address and

prevent the root causes of strikes by creating an

overarching process for collective bargaining, the

automatic deduction of union dues from paychecks

(a “dues check-off’), and a “new administrative

agency charged exclusively with the regulation of

public sector labor relations.”24

Importantly, the Taylor Law was also drafted to

“provide for flexibility and diversity in public

employment relationships—to provide, that is, a

kind of state-wide laboratory for the conduct of

experiments and research in such relationships.”25

It accordingly permitted local governments to

establish their own labor relations schemes,

provided they were “substantially equivalent” to

Fair Employment Act (Taylor Law), ch. 392, § 200, 1967 N.Y.

Sess. Laws 393, 394 (McKinney) (codified as amended at N.Y.

Civ. Serv. Law § 200 (2015)) (describing its purpose as “to

promote harmonious and cooperative relationships between

government and its employees and to protect the public by

assuring _.. the orderly and uninterrupted operations and

functions of government’).

% Donovan, supra note 11, at v; O’Neil & McMahon, supra

note 9, at 6.

25 Donovan, supra note 11, at 40 (quoting Walter E. Oberer,

Kurt L. Hanslowe, & Robert E. Doherty, The Taylor Act: A

Primer for School Personnel (and Other Beginners at

Collective Negotiations) 1 (1968)) (internal quotation marks

omitted).

those contained in the Taylor Law.”¢ In anticipation

of this provision of the Taylor Law, the City passed

its own Collective Bargaining Law, creating an

Office of Collective Bargaining to “effectuat[e] labor

relations and collective bargaining between public

employers and institutions in the city and their

employees.”27 The City’s law went into effect on the

same day as the Taylor Law.”8

While a step in the right direction, the new

collective bargaining laws failed to stem public-

sector strikes. Disagreements between the City and

public-sector unions continued to impose enormous

financial costs and exact harm on the public:

e In February 1968, the City’s sanitation

workers went on strike, causing nearly

100,000 tons of refuse to pile up in the

streets (roughly the equivalent of two

ocean liners each the size of the RMS

26 Public Employees’ Fair Employment Act, § 212, 1967 N.Y.

Sess. Laws 393, 402 (McKinney) (codified as amended at N.Y.

Civ. Serv. Law § 212(2)); Donovan, supra note 11, at 104.

27 Local Law No. 53 (1967) of City of New York.

28 John V. Lindsay, City of N.Y., Report Submitted Pursuant

to Chapter 24, Laws of 1969, Designed to Bring New York

City's Labor Relations Practices into Substantial Equivalence

with the Public Employees’ Fair Employment Act 1 (1969)

{hereinafter Lindsay, Report] (on file with the New York City

Law Department).

Titanic).29 Accumulating garbage led to a

proliferation of trash fires and the City’s

first general health emergency since the

1931 polio epidemic.2° The New York

Times described the scene as resembling

“a vast slum as mounds of refuse grew

higher and strong winds whirled the filth

through the streets.”3!

e Later in 1968, three teacher walkouts

caused more than a million children to

miss thirty-six days of school.3? The City’s

poorest children were the hardest hit: of

the 400,000 free daily lunches normally

given to needy kids, only around 160,000

were provided during the walkouts.%%

Some parents responded with improvised

schools in churches and storefronts, while

others resorted to smashing doors and

29 See Fragrant Days in Fun City, Time, Feb. 16, 1968, at 23;

Tad Fitch, J. Kent Layton & Bill Wormstedt, On a Sea of

Glass: The Life and Loss of the RMS Titanic, at App. A (2013).

30 See Fragrant Days in Fun City, supra note 29, at 23.

31 Emanuel Perlmutter, Shots Are Fired in Refuse Strike;

Filth Litters City, N.Y. Times, Feb. 5, 1968, at 1, 37.

32 See Leonard Buder, Strike Cripples Schools, No Settlement

in Sight, N.Y. Times, Oct. 15, 1968, at 1, 38; Strike’s Bitter

End, Time, Nov. 29, 1968, at 89.

88 See Strike’s Bitter End, supra note 32, at 89.

windows to open their’ children’s

schools.*4

e In January 1971, the City’s police force

participated in an unscheduled walkout.

For six days, only 15% of the City’s

patrolmen reported for work.*° The

Chicago Tribune described the strike as a

“spectacle” as the nation’s largest city was

“nakedly exposed to the threat of

criminality on a massive scale.”%

Clearly, more had to be done to forge an

effective system of collective bargaining that would

serve, consistently and in the long term, as a stable

alternative to public-sector strikes and work

stoppages.

34 Leonard Buder, Parents Smash Windows, Doors to Open

Schools, N.Y. Times, Oct. 19, 1968, at 1, 26; Strike’s Bitter

End, supra note 32, at 89.

35 Jeffrey A. Kroessler, New York Year By Year: A Chronology

of the Great Metropolis 309 (2002); The Police Strike in New

York, Chi. Trib., Jan. 21, 1971, at 20; Richard Reeves, Police:

‘Attention Must Be Paid!’ Say the Men on Strike, N.Y. Times,

Jan. 17, 1971, at E1.

36 The Police Strike in New York, supra note 35, at 20.

C. The City Advocated for Agency Shop

Provisions to Complete Its Development

of an Effective Collective Bargaining

System.

It was at this pivotal time, in the midst of a

second wave of strikes, that New York City began

to tout agency shop provisions. In 1969, Mayor

John V. Lindsay unsuccessfully urged the state

legislature to adopt “the agency shop, a recognized

form of union security,” as a means of promoting

both “labor harmony and responsibility.”3”

Three years later, in 1972, the City explicitly

authorized agency shop arrangements. Relying on

the New York Court of Appeals’ interpretation of

the Taylor Law as granting municipalities the right

to take steps to provide “a degree of union security[]

to bargaining agents for public employees,” the

37 Lindsay, Report, supra note 28, at 9-10. The City pursued

agency shop arrangements that same year. See, e.g., Letter

from Herbert L. Haber, Dir., Office of Labor Relations, to

Joseph V. Terenzio, Comm’r, Dep’t of Hosps. (Mar. 19, 1969)

(on file with the New York City Law Department) (discussing

agency shop arrangement for hospital union).

38 Bauch v. New York, 21 N.Y.2d 599, 606 (1968); see also

John V. Lindsay, City of N.Y., Report and Plan Submitted

Pursuant to Chapter 24, Laws of 1969, Designed to Bring New

York City’s Labor Relations Practices into Substantial

Equivalence with the Public Employees’ Fair Employment Act

(Taylor Law) (1969) 44—46, reprinted in New York Legislative

Service, NYLS’ New York City Legislative History for Local

City amended its Collective Bargaining Law to

allow the negotiation of agency shop arrangements

to the extent otherwise permitted by law.*?

At the time, the constitutionality of agency shop

arrangements for public-sector unions had not yet

been established. In 1977, however, this Court

decided in Abood that agency shop arrangements

were lawful for public-sector unions, so long as

objecting employees were not required to pay fees

for activities unrelated to collective bargaining.

New York State quickly moved to adopt the

same agency shop solution that the City had

already embraced. The state legislature amended

the Taylor Law to mandate agency shop fees for

state employees and make them a mandatory

subject of negotiation at the local level.“ The

Law No. 1 (1972) of City of N.Y, at unnumbered 67-69 (on file

with the New York City Law Department).

39 See Local Law No. 1 (1972) of City of New York § 10; see

also Presentation by the Majority Leader, Thomas J. Cuite 4,

reprinted in New York Legislative Service, supra note 38, at

unnumbered 221. In Bauch v. New York, the Court of Appeals

acknowledged that “[t]he maintenance of stability in the

relations between the city and employee organizations, as

well as the avoidance of devastating work stoppages, are

major responsibilities of the city administration.” 21 N.Y.2d

at 607. The City interpreted agency shop arrangements as

“further[ing] these objectives.” Jd.

# See Act of Aug. 3, 1977, ch. 677, § 3, 1977 N.Y. Sess. Law

1081, 1082 (McKinney); see also O’Neil & McMahon, supra

Taylor Law amendments explicitly relied on the

Abood decision; a full copy of the decision was

included in the bill jacket.*!

In support of the amendments, the City pointed

out that agency shop arrangements “generate a

more stable and _ responsible labor relation

atmosphere at the bargaining table” by providing

unions with the organizational security necessary

to resist “divisive elements”’—those within and

without their ranks who undermine meaningful

negotiation—thereby deterring strikes.42 After

passage of the amended Taylor Law, the Mayor

note 9, at 24 n.17. In 1992, the State amended the Taylor Law

to require agency shop arrangements for all public employees.

See Act of July 24, 1992, ch. 606, § 2, 1992 N.Y. Sess. Laws

1650, 1650 (McKinney); see also O’Neil & McMahon, supra

note 9, at 24 n.17.

“1 See Bill Jacket for Act of Aug. 3, 1977, ch. 677.

“ Richard L. Rubin, Memorandum in Support (July 29, 1977),

reprinted in Bill Jacket for Act of Aug. 3, 1977, ch. 677; see

also Memorandum from Donald H. Wollett, N.Y. State Office

of Emp. Relations, to Judah Gribetz, Counsel to the Governor

(July 29, 1977), reprinted in Bill Jacket for Act of Aug. 3,

1977, ch. 677 (noting that agency shop arrangements

“provide[] to employee organizations the organizational

security necessary for responsible collective bargaining”).

“direct{ed] the appropriate City Agencies to

implement [the] agreements expeditiously.”*%

D. New York City’s Experience Confirms

that Agency Shop Fees Protect the

Public.

The history of agency shop fees in New York

City illustrates three key points. First, agency shop

fees were adopted as part of a comprehensive

program—borrowed from successful private-sector

labor union schemes—designed to protect the

public as a whole from the catastrophic harm of

public-sector strikes.

Second, the City and State did not embrace

agency shop provisions in isolation. Rather, they

served to buttress the existing labor relations

framework, designed to promote union security at a

time when collective bargaining alone proved

inadequate to prevent continued public-sector

strikes.

Third and finally, New York City’s experience

confirms that a stable collective bargaining scheme

which includes agency shop provisions to promote

responsible bargaining is a successful formula for

43 Admin. Order (Mayor Beame) No. 38 (1977) (on file with

the New York City Law Department).

achieving labor peace. Certainly, no labor relations

system is perfect, nor can the value of any

component of a bargaining scheme be measured in

isolation. But collective bargaining paired with

agency shop fees has worked in the City and across

New York State more broadly.

In the first 15 years after the Taylor Law (1967—

1982), there were, on average, about 20 public-

sector strikes per year in New York State.‘

Thereafter, and beginning within only a few years

of state-wide implementation of agency shop

provisions as part of a broader collective bargaining

scheme, the rate of strikes plummeted by well over

90%, to fewer than two per year across all of New

York State—a dramatic surge in the record of

cooperation between labor and government.*®

Indeed, in general, “the last quarter-century has

been a era of labor tranquility in the state and

local government throughout New York,”46

benefitting the public and ensuring fair treatment

for workers. While the causal explanation for this

historical pattern may be multifaceted, government

employers like New York City have good reason to

view agency shop provisions as an important part

of the solution, particularly when testing

“4 See O’Neil & McMahon, supra note 9, at 10.

45 Id.

4 Id.

alternatives would risk regression from the existing

record of success and public protection.

Il. Petitioners and Amici Ignore _ the

Compelling Public Interest in Solutions

That Reduce the Risk of Public-Sector

Strikes and Disruption of Public Services.

The history of New York City’s collective

bargaining system demonstrates that petitioners

and amici identify the government interests in

promoting effective public-sector collective

bargaining far too narrowly. In framing the

relevant First Amendment question, petitioners

contend that the “only conceivable” government

interest in labor peace that supports agency shop

fees is the possibility that, absent fees, public-

sector “union[s] will go bankrupt,” forcing

government employers to bargain with multiple

entities, rather than a single union.*’

Petitioners minimize the governmental interest

at stake by taking the risk of public harm out of the

constitutional equation. But it was this very

harm—the devastating consequences of public-

sector labor strikes, and not simply the possibility

of union bankruptcies—that animated the

authorization of agency shop fees in the City and in

47 Brief for the Petitioners at 30.

New York State more generally. Petitioners ignore

decades of history and the hardships endured by

millions of City residents when they attempt to

diminish the government’s interest in agency shop

arrangements to the administrative convenience of

reducing bargaining hours alone.

The experience of New York City also refutes

petitioners’ characterization of the government

interests at stake in another fundamental way.

Petitioners refer to “[t]he government’s interest” in

labor peace as if there were a single, uniform

government interest that could be meaningfully

analyzed by this Court.“ But we are a nation of

many different governments—federal, state, and

local—all with widely differing circumstances,

histories, and needs. As the City’s experience

illustrates, mandating one solution for all

jurisdictions is not a workable constitutional rule.

Disruption of services presents an untenable

risk in New York City due to its size, density, and

diversity. The City has nearly eight-and-a-half

million residents*’—more residents than forty

# Jd. (emphasis added).

48 See Annual Estimates of the Resident Population for

Incorporated Places of 50,000 or More, Ranked by July 1, 2014

Population: April 1, 2010 to July 1, 2014, U.S. Census Bureau

(2015), _—http://factfinder.census.gov/bkmk/table/1.0/en/PEP/

2014/PEPANNRSIP.US12A.

making the City the most densely populated major

city in the nation.5! Further, over 600,000 people

commute into the City each weekday,5? and the

City hosts over 56 million tourists each year.5? The

City also has an incredibly diverse population:

more than 35% of City residents were born outside

5° Population Facts, N.Y.C. Dep't of Planning, http://www.nyc

.gov/html/dcp/htmI)/census/pop_facts.shtm] (last visited Nov.

3, 2015).

51 Mike Maciag, Mapping the Nation’s Most Densely Populated

Cities, Governing (Oct. 2, 2013), http://www.governing.com/

blogs/by-the-numbers/most-densely-populated-cities-data-

map.html.

52 Sam Roberts, Commuters Nearly Double Manhattan’s

Daytime Population, Census Says, N.Y. Times: City Room

(June 3, 2013, 11:56 AM), http://cityroom.blogs.nytimes.com/

2013/06/03/commuters-nearly-double-manhattans-daytime-

population-census-says/.

583 Press Release, City of N.Y., Mayor de Blasio and NYC &

Company Announce New York City Welcomed an All-Time

Record 56.4 Million Visitors in 2014 (Feb. 2, 2015), http://

www 1.nyc.gov/office-of-the-mayor/news/082-15/mayor-de-

blasio-nyc-company-new-york-city-welcomed-all-time-record-

56-4-million.

of the United States,*4 and City public school

students speak 176 different languages.®5

As a result of the City’s unique attributes, its

residents are particu.arly dependent on public

services. For example:

e Because less than half of City households

have a car, New Yorkers—like the City’s

thousands of commuters—are especially

reliant on public transportation.56 Mass

transit provides nearly nine million rides

every weekday, and thousands of

businesses could not operate if their

employees were unable to get to work.5’

e The volume of residents, visitors, and

businesses in the City also results in an

54 N.Y.C. Dep’t of Planning, The Newest New Yorkers 2, 10

tbl.2-1 (2013), available at http://www.nyc.gov/himl/dcp/pdf/

census/nny2013/nny_2013.pdf.

55 Sam Roberts, Mamuj? Vlashki? Garifuna? In New York,

You Hear It All, N.Y. Times, Apr. 29, 2010, at Al.

56 Derek Thompson, Why Do the Smartest Cities Have the

Smallest Share of Cars?, The Atlantic (Jan. 22, 2014),

http://www.theatlantic.com/business/archive/20 14/0 1/why-do-

, the-smartest-cities-have-the-smallest-share-of-cars/283234/.

57 The MTA Network, Metro. Transp. Auth., http://web.mta

.info/mta/network.htm (last visited Nov. 13, 2015).

enormous amount of waste—over 23

thousand tons every day—which the City

employs a small army of sanitation

workers to collect.58

e The City operates the largest fire and

police departments in the country,®? as

well as the largest single-district public

school system,® for which the City

employs over 90 thousand educators who

teach nearly a million public school

students each day.®!

Because of the scale of services available in the

City, and City residents’ dependence on them, even

58 Inside DSNY, N.Y.C. Dep't of Sanitation,

http://www 1.nyc.gov/assets/dsny/about/inside-dsny.shtml] (last

visited Nov. 13, 2015).

58 Brian A. Reaves, U.S. Dep’t of Justice, Bureau of Justice

Statistics, Local Police Departments, 2013: Personnel, Policies,

and Practices 3 (2015), available at http://www.bjs.gov/content

/pub/pdf/lpd13ppp.pdf; About, N.Y.C. Fire Dep’t, http://www

-nyc.gov/html/fdny/htm//about/index.shtm] (last visited Nov.

13, 2015).

60 Enrollment, Poverty, and Federal Funds for the 100 Largest

‘School Districts, by Enrollment Size in 2010, U.S. Dep’t of

Educ., Nat'l Ctr. for Educ. Statistics (2013), http://nces.ed.gov/

programs/digest/d12/tables/dt12_104.asp.

61 Statistical Summaries, N.Y.C. Dep’t of Educ. (2014),

http://schools.nyc.gov/About Us/schools/data/stats/default.htm.

relatively small disruptions can have devastating

effects.62 Less than a week without mass transit,

for example, can cost the City economy over a

billion dollars.*8 A week without garbage collection

floods the streets with refuse, threatening a public

health crisis.6“4 One day without teachers squanders

a million days’ worth of learning.®5 Simply put, the

damage inflicted by public-sector strikes is too

great to risk. The City therefore has an overriding

interest in implementing a collective bargaining

system that works.

Contrary to petitioners’ argument, the

incremental benefit of agency shop fees—and the

stable unions they support—does not have to be

overwhelming for agency shop fees to be

constitutionally permissible. The harms of public-

sector work stoppages are so large, particularly in

the City, that even a marginal reduction in the risk

of public-sector strikes provides compelling grounds

for authorizing agency shop arrangements. This is

not an after-the-fact or theoretical justification. The

City tried implementing collective bargaining

82 See supra Part I.

63 See Mike Pesca, The True Cost of the NYC Transit Strike,

NPR (Dec. 21, 2005, 12:00 AM), http://www.npr.org/templates

/story/story.php?storyld=5064612.

6 See supra Part I.B.

85 Cf. Statistical Summaries, supra note 61.

without agency shop fees, but it did not result in

labor peace. Just the opposite: harmful public-

sector strikes continued.

Ill. Differing Labor Laws Reflect

Fundamental Policy Choices About Labor

Management and Government and Provide

No Reason to Constitutionalize a Single

Rule Prohibiting Agency Shop Fees.

To be sure, not all jurisdictions authorize agency

shop fees. Petitioners’ amici point to the variety of

labor laws across the nation as though it is

evidence that agency shop fees are unnecessary.

But divergence in public-sector labor laws is to be

expected. State and local governments across the

nation confront radically different circumstances.

What works in New York City is not necessarily the

best solution in Madison, Wisconsin or Fort Worth,

Texas.

Again, history matters. While several States

have laws that prohibit agency shop fees (known as

“right to work” laws), many of those laws were

enacted long before the 1960s.®7 The people in those

6 See, e.g., Brief of Amicus Curiae Mackinac Center for Public

Policy in Support of Petitioners at 5.

87 Right-To-Work Resources, Nat'l Conf. of State Legislators,

(2015), http://www.ncsl.org/research/labor-and-employment/

right-to-work-laws-and-bills.aspx.

States did not experience the same series of strikes

that New Yorkers endured in the 1960s and 1970s.

Their legislative choices about labor peace should

not control in New York or any other jurisdiction.

The differing pattern of labor laws across the

nation cannot prove or disprove the utility of

agency shop fees. Instead, the broad range of laws

reflects differing judgments about the best means

of managing a public labor force. Some right-to-

work States, for example, ban collective bargaining

by public-sector workers altogether.® Those States

have simply rejected collective bargaining full-stop

as a labor management strategy. Their laws

provide no guide for jurisdictions like New York

City that have made a foundational choice to

embrace bargaining as a labor management

solution.

Nor have all current right-to-work jurisdictions

necessarily made the same judgments across the

board. Indeed, some such States themselves

recognize the compelling governmental interest in

labor peace that petitioners and amici ignore. For

example, while Michigan and Wisconsin currently

prohibit agency shop fees for some public unions,

both States exempt local police and firefighter

68 For example, Texas does not permit the recognition of

public labor unions as bargaining agents, nor does it allow

state officials to enter into collective bargaining contracts

with public employees. Texas Gov't Code § 617.002 (2015).

unions.6? The exemptions were justified on public

safety grounds—when signing the bill, Wisconsin’s

governor stressed: “[T]here’s no way we're going to

put the public safety at risk.” Thus, even right-to-

work jurisdictions recognize the costs of public

labor unrest and have been unwilling to risk

disruptions in what they deem to be their most

essential services. For those services, agency shop

fees were retained as a necessary tool to protect the

public.

The same concerns justify broader use of agency

shop fees in other jurisdictions. Decisions about

risk tolerance and judgments about which services

are essential necessarily differ across the country.

As this Court has recognized time and time again,

“There 1 is not, and there cannot be, any unchanging

line of demarcation between essential and non-

essential governmental functions.”™ Given its

unique circumstances and history, for example,

88 See Mich. Comp. Laws § 423.210(4) (2015); Wis. Stat.

§§ 111.81(9), 111.845, 111.85 (2015).

7 Mark Niquette, Walker’s Bill Gives Wisconsin Police a Pass

on Pension Payments, Bloomberg (Feb. 25, 2011, 12:00 AM),

http://www.bloomberg.com/news/articles/20 1 1-02-25/walker-

says-public-safety-means-wisconsin-cops-keep-collective-

bargaining.

™ Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528,

546 (1985) (quoting Helvering v. Gerhardt, 304 U.S. 405, 427

(1938) (Black, J., concurring)).

New York City may reasonably view its full menu

of public services as essential to public safety and

welfare, and thus extend to all public unions the

same agency shop protection that other

jurisdictions provide to police and firefighter

unions. The fact that other jurisdictions reach

different conclusions about when agency shop fees

are necessary to protect their residents in no way

undermines the City’s considered judgment about

the benefit of agency shop arrangements for City

residents. 72

At bottom, petitioners and their amici draw

precisely the wrong conclusion. The diversity of

labor laws nationwide is reason for this Court to

adhere to Abood’s flexible framework, not to

abandon it. Just as there is no single labor

management strategy that works for all private

businesses and industries nationwide, there is no

single labor relations system that suits the needs of

all the diverse governments in the United States.

This is true for a simple reason. Decisions about

agency shop fees cannot be divorced from broader

7 The range of permissible policy judgments about labor

practices is incredibly broad. While most jurisdictions prohibit

public workers from striking, some States authorize strikes

by some or all government workers. See, e.g., Ohio Rev. Code

Ann. § 4117.14(D)(2) (2015). But the existence of those laws

does not refute the need to limit or prohibit public-sector

strikes elsewhere.

judgments that jurisdictions make about their

overall labor relations strategy and risk tolerance

for public-sector strikes. Half a century ago, New

York City determined that secure public unions

were key to providing uninterrupted public services

to residents. To help stabilize unions, the City

championed agency shop arrangements, but only as

part of a more comprehensive program that

embraced public-sector unions as partners to

promote the welfare of City residents.

The City made a fundamental choice to adopt a

collective bargaining system, and through it

promote secure unions focused on long-term

relationships as the cornerstone of its labor

relations policy.73 That commitment extends to the

very structure of City government itself. For

example, the City’s independent Office of Collective

Bargaining structures and oversees interactions

between the City, its unions, and their members.”

In addition, the City’s Municipal Labor Committee,

which is composed of union representatives,

coordinates with the City on behalf of unions on

issues of general, citywide application.”> Unions

78 See N.Y.C. Admin. Code § 12-302 (2015).

™ About, N.Y.C. Office of Collective Bargaining, http://www

.ocb-nyc.org/about/ (last visited Nov. 13, 2015).

7 N.Y.C. Admin. Code §§ 12-303(k), 12-310(a)(2).

also serve on the boards of pension funds,”® and

have even supported using those funds to provide

financial support to the City when it faced

bankruptcy.””? In short, the City’s public unions

play a critical role in the everyday administration

of the City’s labor relations.

More broadly, as New York City’s history

confirms, and as this Court has long recognized,

decisions about labor policy and managing

government workers are inseparable from core

political choices about “integral governmental

functions,” including decisions about how best to

administer and “furnish[] public services.””® Agency

shop fees are one tool that state and local

governments use to implement diverse labor

policies based on diverse judgments about how

government should function.

7% E.g., id. § 13-216(a)(5)(12) (providing for officials from

police unions to sit and vote on board of police pension fund).

™ See Eric Jaffe, The Time the Teacher's Union Saved New

York from Bankruptcy, CityLab (July 24, 2013), http://www

.citylab.com/work/20 1 3/07/time-teachers-union-save-new-york

-city-bankruptcy/6306/ (describing how teachers union

pension fund bought city bonds to help avert City

bankruptcy).

7 Natl League of Cities v. Usery, 426 U.S. 833, 851 (1976),

overruled on other grounds by Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528 (1985).

For this reason, mandating one nationwide rule

on agency shop fees would not only be contrary to

Abood, it would be deeply inconsistent with this

Court’s recognition that needs vary across the

nation,”? and that local communities may make

fundamentally different choices about the operation

of government, including about core labor policies.®

Petitioners and amici mistake public

controversy for constitutional error. Public unions

are currently a hot-button issue, but that hardly

justifies overruling Abood. The debate over unions

is part of a broader dispute about the proper role of

government, but such political questions are best

resolved at the ballot box—not by circumventing

the legislative process and constitutionalizing a

rule about agency shop fees. Indeed, “[t]he genius of

our government provides that, within the sphere of

constitutional action, the people—acting not

through the courts but through their elected

legislative representatives—have the power to

determine as conditions demand, what services and

78 See Kelo v. City of New London, 545 U.S. 469, 482 (2005)

(“Viewed as a whole, our jurisprudence has recognized that

the needs of society have varied between different parts of the

Nation, just as they have evolved over time in response to

changed circumstances.”).

8 See Bond v. United States, 131 S. Ct. 2355, 2364 (2011)

(discussing the role, and virtues, of federalism).

functions the public welfare requires.”®! Consistent

with this principle, Abood left the “wisdom” of

adopting agency shop fees to voters in each State,

ensuring that no labor relations policy is frozen in

place.®2 In fact, while Abood itself concerned a

Michigan law authorizing agency shop fees,®5

Michigan recently limited the use of such fees.*4

Such change was accomplished through state-

specific legislation, not a constitutional rule that

imposed Michigan’s choice on other communities.

For decades, New York City has relied on stable

unions as a key part of its governance strategy, one

that embraces the provision of services to

strengthen the fabric of the City and better the

lives of its residents, while also ensuring fair

treatment and protection for workers who serve the

public. While other jurisdictions may make

different choices, this Court should not embed those

choices in a constitutional rule that overrides the

long-term, successful labor relations strategy of

81 Garcia, 469 U.S. at 546 (quoting Helvering v. Gerhardt, 304

U.S. 406, 427 (1938) (Black, J., concurring)).

8 Abood vu. Detroit Bd. of Educ., 431 U.S. 209, 224—25 (1977).

88 Jd. at 211.

& See, e.g., Jack Spencer, Right-to-Work Bills Pass Michigan

House, Senate, Mich. Capitol Confidential (Dec. 7, 2012),

http://www.michigancapitolconfidential.com/18028; see also

Mich. Comp. Laws § 423.210(3)(c) (2015).

New York City, or the similar strategies that have

been adopted and long-used by many States and

cities, to build an effective collective bargaining

system to resolve public-sector labor disputes.

CONCLUSION

For the foregoing reasons, the judgment below

should be affirmed.

Respectfully submitted,