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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0322%3A56

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## 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,
v.

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,

ee

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

iv

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).

10

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.

11

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’

12

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).

13

those contained in the Taylor Law.Ӣ 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).

14

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.

15

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.

16

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

17

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

18

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”).

19

“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).

20

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.

21

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.

22

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.

23

States©°—all living in a compact geographic area,
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.

24

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).

25

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.

26

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.

27

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.

28

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).

29

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)).

30

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.

31

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).

32

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).

33

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).

34

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).

35

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.

36

CONCLUSION

For the foregoing reasons, the judgment below
should be affirmed.

Respectfully submitted,

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®5

RICHARD DEARING*

CECELIA CHANG

JASON ANTON

*Counsel of Record

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0322%3A56. Public record. Not legal advice.