Amicus Curiae Brief — Janus v. Am. Fed'n, 138 S. Ct. 54 (2017) (No. 16-1466)

No. 16-1466

IN THE

Supreme Court of the United States

MARK JANUS,

Petitioner,

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL..,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF INTERNATIONAL BROTHERHOOD

OF TEAMSTERS AS AMICUS CURIAE

SUPPORTING RESPONDENTS

BRADLEY RAYMOND STEPHEN P. BERZON

INTERNATIONAL Counsel of Record

BROTHERHOOD OF Scott A. KRONLAND

TEAMSTERS ANDREW KUSHNER

25 Louisiana Ave., N.W. ALTSHULER BERZON LLP

Washington, D.C. 20001 177 Post Street, Ste. 300

(202) 624-6832 San Francisco, CA 94108

(415) 421-7151

sberzon@altber.com

January 19, 2018 Counsel for Amicus Curiae

Mosaic - (301) 927-3800 - Cheverly, MD

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TABLE OF CONTENTS

Page

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INTEREST OF AMICUS CURIAE..................cc0c0000000 1

INTRODUCTION AND SUMMARY OF

RRR are Se SIS eA LEN AE cap ead ORE 2

TET RRR a cS bMS Rs Ak OW ES 5

I. The Example of Federal Employee Unions

Does Not Show that Illinois Lacks an

Important Interest in Fair-Share

clench ndadedinaitide iiccdeensiessincceinticdsinei 5

A. Federal employee collective bargaining is

not analogous to typical state and local

EAE WET s AME Ee ED 6

B. Most federal employees free ride even

though a majority of covered employees

support union representation..................... 9

C. The federal government must directly

support core collective bargaining

ee iiacididescnntintdninictuadadiubrsussdscliivas 10

Il. The Example of Collective Bargaining in

Other Environments Without Fair-Share

Arrangements Does Not Support Petitioner’s

ei ahicricradaniciadapttaplenitilagaila dite aenicde es 13

ii

A. Unionization rates are much lower

and free riding is often rampant

without fair-share arrangements............. 13

B. Some bargaining units are not viable

without a requirement that all

employees share in the cost of

a ES a ee 18

C. Employee representatives are less

effective in systems that do not fairly

distribute the cost of representation........ 21

D. Opponents of public employee unions

understand and exploit the economic

NI II oo cdccacticneninindiasusiedwesoones 24

Ill. The Court Should Not Prohibit States from

Using What They Determine to be the Most

Effective Collective Bargaining System to Fix

Employment Terms and Resolve

REE GE SS Eee eee 25

ESE AER a eR SD Re I 28

APPENDIX

Flyer from Freedom Foundation’s post-Harris uv.

Quinn campaign to encourage resignations from

ee accel ci clsctccionttenlitniptenintassendia la

TABLE OF AUTHORITIES

Page

Cases

Abood v. Detroit Bd. of Educ.,

TE ies icininccthssilisadiiadddseiacinndidensisain passim

Boys Mkts., Inc. v. Retail Clerks Union, Local

a. tl ae eee 24

Branch v. City of Myrtle Beach,

RE, SII ciriciniitiincesincccacsasnsanannsnnses 19

Comm’ns Workers of Am. v. Beck,

ann dccacisiinbinsSiciciptaadddanendoapeinniel 10

Fort Stewart Schs. v. Fed. Labor Relations Auth.,

SC a eeenienie 6

Garcetti v. Ceballos,

gS TREE SIRI ee NE PES 28

Harris v. Quinn,

Re is ee Be I caivcsisciccccevesssscctees 9, 10, 18, 21

Int'l Union of Operating Eng’rs Local 370 v.

Wasden, 217 F. Supp.3d 1209

I canta 17

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

EINE ESE a nO 25, 27

NLRB v. General Motors Corp.,

I inl ncepiniicncinniicieiebiaeanpadeonte 10

iv

Raney v. Fed. Bureau of Prisons,

222 F.3d 927 (Fed. Cir. 2000)...........ccccccccccoscseeeees 12

Smith v. Ark. State Highway Emps.,

gE SR ERR A le ar 25

Vaca v. Sipes,

SN Te I iidtchicinsnceckscsonecensessenseneneesen 23, 27

Administrative Decisions

American Sunroof Corp.-West Coast, Inc.,

| _____ ERLE LE LSS RSI Eee 19

Brewery Drivers and Helpers Local Union

133, 1995 WL 1918089 (N.L.R.B. Div. of

I I Str I lisa ciciresiccameveveeusedeiieces 19

North Mem 'l Med. Ctr.,

I i cceesiaeanin 19

U.S. F.D.A. & AFGE AFL-CIO Council No.

BGR, BE Fatih, TIO Ce eccesccvcccesccccscescccccvccceeses 8

U.S. Dep't of Interior, Nat'l Park Serv. &

AFGE, AFL-CIO, 69 F.L.R.A. 89 (2015) ..........000000. 7

U.S. Dep't of Veterans Aff. & AFGE Local 31,

rn a ccuauviibndininedio 12

Wells v. Harris,

a TT I i ccd scnesiciicedanincmansibiawnsiiathaini 12

Statutes

ee Oe ee ere oe i 14

Back Pay Act,

Be ae Sr EE cccasniecescesccninsncesscemnmiovvcmiediansins 12

Civil Service Reform Act,

is te I ctraceniisnsiscncanciecinceicneseniettnaeiel 11

Oy Be Se irtianivecscvixuciicisnseenibebdindetinnntiniamamiatian 11

ei Oe, ee ticnccsscnnnciaiusttominseneaneteninsannitenmial 11

© Fras Se WN iciianecscvntandetcneniussennenapdisiiuainiaiiamels 11

Federal Service Labor-Management Relations

Statute,

FE Oe Fe dniiiininaccnsecningsssiigusiuneinsannntiumdsaiaebteniauel 6

ae Oe ee i ceniscevndecinaiasicsincaiicsnestnnidinenmeiaaationdaaia 9

Oe Fe ceientcciccsccstsertninintinstniaamian 10

JL fk | |: ease pnsesesrmrenoreaemnen tare 7

De ae Pe cteccrcesecesessentnnincinpenmnguemnenininabuiaiaa 7

Ses Oe IED ciiccsvvcnccncesascnnsconensinpnieiuieauibnniel 11

BAe OF FUMIE viasteisssvicsinsceounssensenterenteetoloaiendaiiaaa 11

a: Se Bah i ctintececcnscssaccsecrsicniiaian 20

aR SINE SEE icinccvedcacinccoussséctintmenmiansaicumanienel 20

Illinois Public Relations Act,

Gee INES Hs GENE scscneedncshesnccdvosrcniensesandeie 11, 23

a, SS Fe hac ccirsuisivinenvasesneniencnpetataialaiiais 14

Mich. Comp. Laws § 423.210(b)...............::cceeeeeeeeeeees 14

National Labor Relations Act,

le a IE inisacnicnscidechcsmvuniniiannctmasbicimesiinmmae 18

SD Seda. OF IED sedevinvevectencnsicencabnteabetasseumebiaies 19

Postal Reorganization Act,

A acer bsecvicincctircvckrscoeinnsnee 6

ene 19

CS EE 19

Miscellaneous Authorities

AFSCME Council 31, 2016 Form LM-2 Report....... 23

AFSCME Iowa Council 61, 2016 Form LM-2

Anti-union group targets Oregon public sector

unions, Northwest Labor Press (Sept. 1,

Appendix to Br. for the States of New York et

al. as A.C. in Friedrichs v. California

EE 25

Patricia N. Blair, Union Security Agreements

in Public Sector Employment,

60 Cornell] L. Rev. 183 (1975).................c.cceeccceeess 27

Decl. of Curt Koegen, Dkt No. 21-1, Int?

Union of Operating Eng’rs Local 370 v.

Wasden, 217 F. Supp.3d 1209

(D. Idaho 2016) (No. 4:15-cv-00500) «0.000.000.0000. 17

Emin M. Dinlersoz & Rubén Hernandez-

Murillo, Did “Right-to-Work” Work for

Idaho?, 84 Fed. Reserve Bank of St. Louis

a cunsensdeceenese 15

David T. Ellwood & Glenn A. Fine, The

Impact of Right-to-Work Laws on Union

Organizing, Nat’] Bureau of Econ. Res.

re sedsontuscocsccocnve 18

Ozkan Eren & Serkan Ozbeklik, What Do

Right-to-Work Laws Do? Evidence from a

Synthetic Control Method Analysis, 35 J. of

Pol’y Analysis and Mgmt. 173 (2016) ................... 15

Sam Estreicher, The Paradox of Federal-

Sector Labor Relations: Voluntary Unionism

without Collective Bargaining over Wages

and Employee Benefits, 19 Emp. Rts. &

gg PK 7,8

Elise Gould & Will Kimball, “Right-to-Work”

States Still Have Lower Wages, Econ. Pol’y

Inst. Briefing Paper No. 395 (April 22, 2015)....... 13

Barry T. Hirsch & David A. Macpherson,

Union Membership and Coverage Database

Ee el elaiecnceincdiccionidcusmasideciiiinilinnieatindanes 9, 14, 15

H.R. Rep. No. 1147 (1935), reprinted in 2 Leg.

Hist. of the National Labor Relations Act

ei NR IS ERO a es ee cle see ee 21

Richard C. Kearney & Patrice M. Mareschal,

Labor Relations in the Public Sector (5th ed.

Letter from CEO Tom McCabe to Freedom

Foundation Membership (Oct. 1, 2017)................ 25

James C. May, The Law and Politics of

Paying Teachers Salary Step Increases upon

Expiration of a Collective Bargaining

Agreement, 20 Vt. L. Rev. 753 (1996).................... 20

Maxford Nelson, Freedom Foundation Efforts

Decimating SEIU 925, Freedom Found.,

(Oct. 15, 2015).......ccccceceseeeeessessnesesesnnsnnsnsannannnnnens 21

Mancur Olson, Jr., The Logic of Collective

Action (2d @d.. 1971) .....-..ccccceeeeeeeneneneeeennnenens 3, 10, 18

Press Release, AFGE, AFGE, VA Sign New

Collective Bargaining Agreement

(Mar. 28, 2011).........cccccessesseeeesssenseersensensnsasnannnanenses 8

Press Release, AFGE, T'SA Officers Agree to

New Contract (Dec. 19, 2016)...........:ccsceseeeeeeeeeeeeeens 8

Retention and Recertification UNOFFICIAL

Results: Election October 10-24, 2017, lowa

Public Employee Relations Board..............-..-..-+++ 16

Milla Sanes & John Schmitt, Regulation of

Public Sector Collective Bargaining in the

States, Ctr. for Econ. and Pol’y Res. ae 6

Sen. Rep. No. 573 (1935), reprinted in 2 Leg.

Hist. of the National Labor Relations Act

2B13B (19B5).........cccccececeesereeeeeeeneerennnnennensnsaseesansensnes 20

U.S. Dep’t of Labor Task Force on Excellence

in State and Local Gov’t through Labor-

Mgmt. Cooperation, Working Together for

Public Service: Final Report (1996) ..............-::+0++ 27

Roland Zullo, Right-to-Work Laws and

Fatalities in Construction, 14 J. of Lab. &

Soc’y 225 (2011) ........ccc-eccceeseereesesneensenennnnnnennes 21, 22

1

INTEREST OF AMICUS CURIAE

The International Brotherhood of Teamsters (IBT)

is a labor organization with more than 1.3 million

members across the United States and Canada,

including more than 200,000 workers employed by

states, cities, counties, school districts and other

public entities. The IBT’s local affiliates serve as

collective bargaining representatives for working men

and women in a huge variety of occupations. In

addition to representing employees in traditional

Teamster crafts in the private sector, affiliates of the

IBT represent, among many other public employees,

support staff at Pennsylvania State University, the

University of Minnesota, and the University of

California system; public defenders in Minnesota;

sanitation workers and other employees of various

public agencies in New York City; health care workers

in public medical facilities across the country; law

enforcement officers in 26 states; correctional and

other employees of Cook County, Illinois; and public

school principals in Philadelphia.'

The Teamsters’ members would be adversely

affected by a decision that invalidates longstanding

arrangements, set up in reliance on this Court’s

precedents, by which the costs of collective bargaining

representation are spread among all bargaining unit

workers who benefit from it.

! No counsel for a party authored this brief in whole or in

part, and no person or entity other than amicus curiae made a

monetary contribution to the preparation or submission of this

brief. All parties consented to the filing of this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

This brief responds to claims by Petitioner and his

amici that the States lack an important interest in

preserving agreements that fairly allocate the costs of

collective bargaining representation because collect-

ive bargaining purportedly works just as well without

a fair-share requirement. As demonstrated below,

long experience with collective bargaining in the

United States shows the opposite.

As an initial matter, Petitioner fights a straw man

by attacking Abood v. Detroit Board of Education, 431

U.S. 209 (1977), for “wrongly assum|[ing]” that fair-

share fees are a necessary component of every

exclusive representative system. Pet. Br. at 3; see also

id. at 37. Abood was not predicated on such an

assumption. At the time of Abood, as today, some

states banned fair-share arrangements for private

sector workers covered by the National Labor

Relations Act (NLRA), and some public sector

collective bargaining systems did not use fair-share

arrangements. Moreover, strict necessity has never

been the test for the constitutional validity of

accommodations agreed to by public employers. See

Resp. AFSCME Council 31 Br. at 20-29.

What Abood actually said is that a state that

chooses a democratic system of exclusive represen-

tative collective bargaining to fix employment terms

and resolve grievances for public employees may also

conclude that “important government interests” are

best served by having all unit workers share the costs

of employee representation. 431 U.S. at 225. Abood

recognized that assessing all employees for their

proportionate share of representational expenses

3

“distribute|s] fairly the cost of these activities among

those who benefit, and it counteracts the incentive

that employees might otherwise have to become ‘free

riders’ who refuse to contribute to the union while

obtaining benefits of union representation that

necessarily accrue to all employees.” Jd. at 222.

Abood’s observations about fairness and free riding

were correct at the time, and experience has

demonstrated that they remain correct today.

A system that legally requires an exclusive

representative to bargain and process grievances for

all unit workers while, at the same time, relying solely

on voluntary contributions to pay the costs of those

activities, will lead to free riding, unfairness, and the

underfunding of the collective bargaining system. See

Mancur Olson, Jr., The Logic of Collective Action 85-

87 (2d ed. 1971). In such a system, free riding is

economically rational for all workers — including

workers who want effective representation. Jd. at 88.

Moreover, that rational free riding forces workers who

choose to pay union dues to bear more ‘han their

proportionate share of the cost of representation of the

entire unit, which further discourages voluntary

payments. As a result, absent a mechanism to spread

the costs of collective bargaining representation, some

collective bargaining units will not be viable at all,

while others will lack the funding necessary for

effective representation. /d. at 87.

In challenging Abood, Petitioner and his amici

urge that the existence of collective bargaining

systems for federal employees and employees in so-

called right-to-work environments demonstrate that

Abood’s underpinnings in basic economic logic are

wrong. Pet. Br. at 37-38; see also U.S. Br. at 20-21

(arguing that federal employee unions demonstrate

4

that there is no meaningful relationship between fair-

share arrangements and exclusive representation).

But Petitioner did not develop a factual record about

the real-world impact of fair-share arrangements on

the stability and effectiveness of employee represen-

tatives, and the Court should not overturn decades of

precedents, relied upon in thousands of contracts,

based on untested and counterintuitive suppositions.

Moreover, an analysis of the actual experience of

federal employee unions and unions in so-called right-

to-work jurisdictions demonstrates that Mancur

Olson’s economic logic was right.

To begin with, the federal system does not permit

bargaining over wages or benefits, so it is not even an

apt comparison to robust public employee bargaining

systems that permit fair-share arrangements. In any

event, the federal system is plagued by free riding.

About two-thirds of federal employees in bargaining

units that democratically chose union representation

do not pay any dues to support collective bargaining

costs. The rampant free ridership means that the

federal government has to finance core employee

representation activities in other ways, and it means

that some federal employees bear more than their fair

share of the costs of their employer’s system of fixing

and enforcing employment terms and resolving

employee grievances.

Likewise, in other environments that use exclusive

representative bargaining without a fair-share re-

quirement, union membership rates are much lower,

free riding is rampant, and employee representation

is less effective. Petitioner’s amici understand that,

absent a fair-share requirement, all workers have an

economic incentive to free ride. One amicus’s

campaigns even use the slogan “Keep Your Money.

5

Lose nothing.” to encourage union members in units

without fair-share requirements to resign.2 That is,

the campaign tells workers there is no logical reason

to voluntarily pay for services that must, by law, be

provided to the entire bargaining unit for free.

Petitioner also urges that, even if Abood was right

about the underlying economic logic, public employers

have no legitimate interest in dealing with adequately

funded collective bargaining representatives. Pet. Br.

at 60-61. This simply ignores the role that collective

bargaining plays in workforce management. States

that choose to use collective bargaining systems as a

mechanism to determine public employment terms

and fairly resolve grievances have an important

interest in the effective operation of those systems,

which depend on the existence of effective employee

representatives. The Court should not deprive those

states of the ability to negotiate agreements which

fairly distribute the costs of employee representation.

ARGUMENT

I. The Example of Federal Employee ‘Unions

Does Not Show that Illinois Lacks an Import-

ant Interest in Fair-Share Arrangements.

Contrary to the assertions of Petitioner and his

amici, the experience of federal employee unions does

not demonstrate that state and local collective

bargaining systems would function just as well

without fair-share fees. As a threshold matter, federal

employee collective bargaining is not an apt com-

parison because employees cannot bargain over wages

or benefits and because the system involves very large

units that provide economies of scale. That dispositive

2 See Appendix (reproducing flyer from anti-union group).

6

point aside, federal employee collective bargaining

also suffers from very serious free riding problems,

and the federal government consequently supports

necessary employee representation in other ways.

A. Federal employee collective bargaining is

not analogous to typical state and local

bargaining.

The scope of collective bargaining in the federal

sector is very limited, most notably in that bargaining

over wages and benefits is prohibited.* See Fort

Stewart Schs. v. Fed. Labor Relations Auth., 495 U.S.

641, 649 (1990) (“The wages and fringe benefits of the

overwhelming majority of Executive Branch employ-

ees are fixed by law . . . and are there/ore eliminated

from the definition of ‘conditions of employment” over

which federal employees may collectively bargain.).

By contrast, the vast majority of the 41 states that

authorize at least some public sector employees to

bargain collectively allow those employees to bargain

over wages and benefits. See Milla Sanes & John

Schmitt, Regulation of Public Sector Collective

Bargaining in the States at 7, Ctr. for Econ. and Pol’y

Res. (2014).4

The much narrower scope of federal sector

bargaining directly affects unions’ operating

expenses. Negotiations are much simpler, given the

limited subset of bargainable issues. Because wages

8 This brief refers to “federal employees” to mean employees

covered by the Federal Service Labor-Management Relations

Statute (FSLMRS). 5 U.S.C. § 7103. Postal service employees are

covered by the National Labor Relations Act “to the extent not

inconsistent with” certain provisions specific to the Postal

Service. 39 U.S.C. § 1209(a).

4 http://cepr.net/documents/state-public-cb-2014-03.pdf

7

and fringe benefits are set by statute, federal

employee unions also do not require the services of

accountants, economists, and benefits actuaries, who

typically participate in more comprehensive collective

bargaining negotiations. See Abood, 431 U.S. at 221

(Collective bargaining may require “lawyers, expert

negotiators, economists, and a research staff, as well

as general administrative personnel.”).

The federal sector also uses large, often national,

bargaining units that provide economies of scale for

the federal unions. Agency-wide bargaining units are

permitted, and the Federal Labor Relations Authority

(FLRA) may consolidate, without an election, two or

more bargaining units at the same agency that are

represented by the same labor organization. 5 U.S.C.

§ 7112(a), (d). The FLRA applies a pro-consolidation

standard. The consolidated unit need not “be more

appropriate than the non-consolidated units.” U.S.

Dep't of Interior, Nat'l Park Serv. & AFGE, AFL-CIO,

69 F.L.R.A. 89, 95 (2015). Instead, consolidation

requires only that the consolidated unit satisfy the

general criteria for an appropriate bargaining unit. Jd.

at 94-95 (citing § 7112(a), which directs the FLRA to

consider whether a proposed unit shares a “comm-

unity of interest,” promotes “effective dealings” with

management, and allows for “efficien[t]” agency

operations); see also Sam Estreicher, The Paradox of

Federal-Sector Labor Relations: Voluntary Unionism

without Collective Bargaining over Wages and

Employee Benefits, 19 Emp. Rts. & Emp’t Pol’y J. 283,

288 & n. 14 (2015) (describing FLRA pro-consolidation

practice).

The FLRA has certified many national, agency-

wide bargaining units. For example, the American

Federation of Government Employees represent more

8

than 200,000 employees in a single bargaining unit at

the Veterans Affairs Department, and the union

represents 42,000 Transportation Security Admin-

istration officers under another contract. See Press

Release, AFGE, AFGE, VA Sign New Collective

Bargaining Agreement (Mar. 28, 2011)5; Press

Release, AFGE, TSA Officers Agree to New Contract

(Dec. 19, 2016)®. By contrast, many state and local

collective bargaining systems involve far smaller

bargaining units. For example, Local 1932, an IBT

affiliate in California, has nineteen different contracts

for the fewer than 2,000 employees of the City of San

Bernardino.

In the federal sector, the parties’ bargaining

obligations extend only to bargaining between “the

certified exclusive representative and agency,

respectively.” U.S. F.D.A. & AFGE AFL-CIO Council

No. 242, 53 F.L.R.A. 1269, 1274 (1998). For the many

nationwide bargaining units, bargaining occurs only

at the national level unless the parties “authorize local

components to bargain supplemental and other

agreements over particular subjects or in particular

circumstances.” /d. At these nationwide units, a single

bargaining team represents tens (or even hundreds) of

thousands of employees. Federal employee unions

therefore harness significant economies of scale to

lower the per-member cost of collective bargaining,

and those economies are unavailable to small state

and local government employee bargaining units like

those represented by Local 1932. See Estreicher,

5 https://www.afge.org/publication/afge-va-sign-new-

collective-bargaining-agreement/

6 https://www.afge.org/article/tsa-officers-agree-to-new-

contract/

9

supra, at 297 n. 62 (noting the economies of scale in

federal employee labor-management relations).

B. Most federal employees free ride even

though a majority of covered employees

support union representation.

Because of rampant fee riding, only a small

minority of federal employees belong to a labor union.

See Barry T. Hirsch & David A. Macpherson, Union

Membership and Coverage Database from the CPS

(noting that only 19% of federal employees are

members of a union).’ Two thirds of federal employees

in bargaining units represented by unions are not

dues-paying members. Richard C. Kearney & Patrice

M. Mareschal, Labor Relations in the Public Sector 26

(5th ed. 2014) (“[O]jut of the approximately 1.9 million

full-time [federal employees] who are represented by

a collective bargaining contract, only one-third

actually belong to the union and pay dues.”); see also

id. (“Free riders pose a serious problem for federal

unions.”). In Harris v. Quinn, 134 S. Ct. 2618 (2014),

the Court hypothesized that a “high percentage” of

employees who want union representation will

“willingly pay[] union dues.” Jd. at 2641. But the

example of federal employee unions demonstrates

that the desire for employee representation does not

equate with a willingness to pay for that represen-

tation if, by law, it must be provided to all unit

workers for free.

Federal employee unions cannot form unless a

majority of the employees in the bargaining unit

chooses union representation. 5 U.S.C § 7111(a). Once

represented, federal employees can decertify the

7 http://www.unionstats.com

10

union if a majority of the unit’s employees no longer

want representation. See id. § 7111(b)(1)(B). So

federal employee bargaining units do not form, or

continue to exist, unless the union has majority

support. Yet far from a “high percentage” of those

covered employees pay dues. Harris, 134 S. Ct. at

2641. Instead, only about a third do. Kearney &

Mareschal, supra, at 26. Many federal employees who

want representation make the economically rational

decision not to pay for that representation because, by

law, it must be provided anyway for free and because,

if they do pay for it, they would be subsidizing the free

riders. These employees reason, consistent with basic

economic theory, that each employee “alone would not

perceptibly strengthen the union ... [but]... would

get the benefits of any union achievements whether or

not he supported the union.” Olson, supra, at 88.

C. The federal government must directly

support core collective bargaining

activities.

To provide federal employees with meaningful

(albeit limited) collective bargaining representation in

a free-rider environment, the federal government

must use other methods to support “core” represen-

tational activities, i.e. “collective bargaining, contract

administration, and grievance adjustment.” See

Comm’ns Workers of Am. v. Beck, 487 U.S. 735, 745

(1988) (quoting NLRB v. General Motors Corp., 373

U.S. 734, 742 (1963)).

Federal employees who serve as employee

representatives for collective bargaining negotiations,

grievance processing, contract administration, and

other representational activities are entitled to

“official time for such purposes,” meaning that the

11

federal government pays the employee’s salary while

he or she works on behalf of the bargaining unit. 5

U.S.C. § 7131. By covering the employee's salary,

official time enables the federal government to

directly support some of the costs of the employee

representative, thereby partly making up for the

consequences of not having a fair-share requirement.®

The federal government also pays directly for a

grievance resolution system, in contrast to typical

state and local collective bargaining systems. In

Illinois, public sector collective bargaining agree-

ments must contain a grievance and arbitration

procedure requiring the union and employer to share

the cost of arbitration. 5 Ill. Comp. Stat. 315/8. Thus,

the union must pay for half the cost of hiring a private

arbitrator. Federal employees, by contrast, have the

option to challenge a discharge or other serious

disciplinary action before the Merit Systems

Protection Board (MSPB).9 See 5 U.S.C. §§ 7512,

7513(b), (d). Claims before the MSPB are heard by

administrative law judges, who are salaried federal

employees. Id. § 1204(b). So disputes before the

agency do not require the union to share in the cost of

arbitration.

Whether the federal employee grieves the

discipline before the MSPB or an arbitrator, moreover,

the employee, when successful, may be entitled to

8 State collective bargaining systems set up in reliance on

Abood typically depend far less on “official time” and similar

arrangements.

® A represented federal employee may also choose, in the

alternative, to challenge disciplinary action before an arbitrator,

pursuant to the terms of the employee's collective bargaining

agreement. 5 U.S.C. § 7121(e)(1).

12

recoup reasonable attorneys’ fees from the

government. 5 U.S.C. § 5596(b). The statute allows for

fee awards to outside counsel as well as in-house, staff

counsel of federal employee labor unions. Raney v.

Fed. Bureau of Prisons, 222 F.3d 927, 932 (Fed. Cir.

2000). When the employee chooses the MSPB option

and is awarded fees, then, the federal government

covers the entire cost of the dispute resolution process

by paying for the decision-maker who hears the

employee’s claims and reimbursing the cost of the

employee’s representation. See, e.g., Wells v. Harris, 2

M.S.P.B. 572 (2010) (example of MSBP awarding

attorneys’ fees to union counsel).

Federal employee collective bargaining agree-

ments also often provide union locals with rent-free

office space in federal buildings. See U.S. Dep't of

Veterans Aff. & AFGE Local 31, 60 F.L.R.A. 479, 482

(2005) (“[U]nion office space is a substantively negoti-

able condition of employment.”). The union locals with

collective bargaining agreements that have these

provisions operate from a location that is both rent-

free and in close proximity to management. This

lowers union operating expenses by freeing up

resources that would otherwise need to go toward

office space and transportation.

a a” -

In sum, the example of federal employee unions

does not demonstrate that basic economic theory is

inapplicable to employee exclusive representation.

Rather, to the extent the federal experience is relevant

at all in light of the limited scope of bargaining and

federal government financial support of employee

representation, it confirms that Abood correctly

understood the underlying economic incentives.

13

Il. The Example of Collective Bargaining in

Other Environments Without Fair-Share

Arrangements Does Not Support Petitioner’s

Arguments.

Petitioner and his amici also point to collective

bargaining systems in those states that do not permit

fair-share arrangements as purportedly showing that

Illinois lacks an important interest in preserving its

fair-share agreements. Again, however, the actual

empirical evidence shows otherwise. Union member-

ship is much lower, and free riding much higher,

without fair share arrangements. As a result, many

potential bargaining units never form, and some

existing bargaining units collapse, because employee

representatives cannot represent unit workers with

such low membership. Because there is no method to

fairly allocate the cost of representation, the units that

do exist have fewer resources and therefore are less

effective representatives.

A. Unionization rates are much lower and

free riding is often rampant without fair-

share arrangements.

Union representation is much less prevalent in

states that bar fair-share arrangements. Across all

sectors, public and private, the percentage of

employees who are represented by a union is nearly

60% lower in states that prohibit fair-share

arrangements. Elise Gould & Will Kimball, “Right-to-

Work” States Still Have Lower Wages, Econ. Pol’y Inst.

Briefing Paper No. 395 at 5 (April 22, 2015).1°

In the public sector, of the 20 states with the

highest percentage of employees who are union

0 http://www.epi.org/files/pdf/82934.pdf

14

members, only one prohibits fair-share arrangements

(Michigan), and in that state the prohibition went into

effect too recently to have a full impact.'! See Hirsch

& Macpherson, Union Membership and Coverage

Database from the CPS; 2012 Mich. Pub. Act No. 349.

By contrast, 19 of the 20 states with the lowest union

membership percentages prohibit fair-share arrange-

ments.

Comparing data from before and after the adoption

of fair-share prohibitions also demonstrates the effect

of such prohibitions. Between 1964 and 2011, three

states shifted from allowing to prohibiting fair-share

arrangements: Louisiana (1976), Idaho (1986), and

Oklahoma (2001). In each state, union membership

dramatically decreased.

Louisiana. In the twelve years before Louisiana

adopted a law barring fair-share arrangements, the

overall percentage of Louisiana employees who were

union members stayed relatively constant, fluctuating

between 16% and 19.2% (and the rate was 17.3% in

1976, when the law passed). In the next twelve years,

however, the unionization rate fell by nearly half, to

9.8%. The state’s rate fell significantly faster than the

overall U.S. average, which dropped only 30% during

!. Petitioner's amici cite data from Indiana and Michigan to

argue that prohibitions on fair-share arrangements do not have

an adverse effect on public employee union membership rates.

See Buckeye Inst. for Pub. Policy et al. Br. at 7-9. But those

states’ bans went into effect in 2012 and 2013, respectively. 2012

Ind. Acts 7-11; 2012 Mich. Pub. Act No. 349. And the bans apply

only to collective bargaining agreements that take effect after the

laws’ adoption. Ind. Code § 22-6-6-13; Mich. Comp. Laws

§ 423.210(b). So it is too soon for data from Indiana and Michigan

to reflect the impact of the new laws.

15

the same period. See Hirsch & Macpherson, Union

Membership and Coverage Database from the CPS.

Idaho. The percentage of Idaho private sector

employees who belonged to a union declined

“significantly faster” than neighboring states after

Idaho prohibited fair share arrangements in 1986.

Emin M. Dinlersoz & Rubén Hernandez-Murillo, Did

“Right-to-Work” Work for Idaho?, 84 Fed. Reserve

Bank of St. Louis Rev. 29, 30 (2002).

Oklahoma. Oklahoma’s adoption of a 2001 law

barring fair share arrangements led to a 20.6% drop

in the number of private sector workers who were

union members. Ozkan Eren & Serkan Ozbeklik,

What Do Right-to-Work Laws Do? Evidence from a

Synthetic Control Method Analysis, 35 J. of Pol’y

Analysis and Mgmt. 173, 182 (2016).!2

The free rider problem is so pronounced in states

that bar fair-share arrangements that in some

12 Amici Buckeye Institute et al. argue that prohibiting

employers from fairly distributing the cost of representation

would have only a “limited” effect on union membership. Buckeye

Inst. for Pub. Policy et al. Br. at 12. But the statistics that amici

cite are nonsensical. For instance, amici claim that free ridership

is 2.4 times higher in states that allow fair-share arrangements

— that is, that free ridership is higher in states that permit

agreements that make it impossible to free ride. Jd. at 10-11. To

the extent amici’s argument can be deciphered, the gist appears

to be that, if the Court overrules Abood, some workers who are

currently fair-share payors would become union members rather

than free ride. Maybe so. But the statistics that amici cite

indicate that, at most, only a minority (30%) will do so. The

remaining 70%, according to amici’s argument, will free ride.

And amici does not account for the union members who would

resign rather than pay additional dues for all the free riders. So,

even at face value, the data do not support amici’s contention

that the effect of overruling Abood would be “limited.”

16

bargaining units only a minority of covered employees

actually pay dues. This is so even though a majority of

covered workers want collective bargaining

representation (or they would not have voted for

representation in the first place, or would vote to

decertify the representative).

The example of AFSCME lowa Council 61 is

illustrative. Public sector workers in lowa recently

voted overwhelmingly to recertify their unions (i.e.

reaffirm that they want union representation), with

86% of eligible voters (and 97% of voters who cast a

ballot) voting for recertification.'* Yet only about 34%

of the workers Iowa Council 31 represents pay dues. '*

So even though the vast majority of unit workers

support representation for collective bargaining and

grievance resolution, only about a third of the unit

workers will pay for that representation if it is

otherwise available, by law, to all unit workers for

free. The circumstances of Local 238, an IBT affiliate

in Iowa, are similar. Across Local 238’s bargaining

units, 97% of votes cast were in favor of recertification,

meaning that there were many more votes in favor of

recertification than there are members of the union.

The experience of public employee representatives

in Iowa is far from unique, as Petitioner’s own amicus

admits. See Mackinac Ctr. for Pub. Policy Br. at 27-29

(stating that the two largest public employee unions

18 Retention and Recertification UNOFFICIAL Results:

Election October 10-24, 2017, lowa Public Employee Relations

Board, available at https://iowaperb.iowa.gov/sites/default/files/

OctoberResults_Final2.pdf

14 Compare AFSCME Iowa Council 61, 2016 Form LM-2

Report, with About AFSCME, AFSCME Iowa Council 61,

available at http://www.afscmeiowa.org/

17

in Florida have only 27% and 25% membership,

respectively). Petitioner and his amici portray low

membership rates as showing that workers do not

want collective bargaining representation, but

without majority support these units would not have

chosen, and continue to have, collective bargaining

representation. The low membership rates show that

economic theory about free riding behavior is correct

in practice.

This circumstance is not limited to public sector

unions. For example, Local 370 of the International

Union of Operating Engineers (IUOE) represents 400

private sector employees at MotivePower, a _loco-

motive manufacturer in Idaho, which does not allow

fair-share requirements. Only 32% of employees in the

MotivePower bargaining unit pay dues, meaning that

the other 68% free rides, requiring their fellow

workers to pay higher dues to cover their represen-

tational costs, including handling their individual

grievance cases. See Int'l Union of Operating Eng’rs

Local 370 v. Wasden, 217 F. Supp.3d 1209, 1211-12 (D.

Idaho 2016). The “unfairness” of this rampant free

riding has produced “friction” at MotivePower because

“members resent having their dues and fees used to

underwrite work that benefits nonmembers who pay

nothing.” Decl. of Curt Koegen, 4 4, Dkt No. 21-1, Int’

Union of Operating Eng’rs Local 370 v. Wasden, 217

F. Supp.3d 1209 (D. Idaho 2016) (No. 4:15-cv-00500).

Free riding this extensive is not unique to Local 370.

In another Idaho bargaining unit with minority

membership, I[UOE has been forced to nearly double

membership dues, which have consequently become a

“financial burden” for many of the workers who have

remained as members. /d. 4 31.

18

As the majority of the workforce, the non-members

could decertify the Idaho bargaining units if they

wished to do so. See 29 U.S.C. § 159(c). Yet they have

not done so. This example, and those discussed above,

further discredit the mistaken assumption that a

“high percentage” of employees who support union

representation will pay for it if they would otherwise

receive it for free. Harris, 134 S. Ct. at 2641.

B. Some bargaining units are not viable

without a requirement that all employees

share in the cost of representation.

Basic economic theory predicts that some

bargaining units will never form in environments that

use exclusive representation bargaining without fair-

share arrangements because it will not be financially

viable to represent the workers, even if most prefer

representation. See Olson, supra, at 2 (Large groups

will not “form organizations to further their common

goals in the absence of . . . coercion” or some other

“separate incentive, distinct from the achievement of

the common or group interest.”). Empirical data

confirms this.

In the first five years following passage of a ban on

fair-share arrangements, new private sector bargain-

ing unit “organizing is reduced by 50%. In the next five

years, it is reduced by roughly 25%.” David T. Ellwood

& Glenn A. Fine, The Impact of Right-to-Work Laws

on Union Organizing at 23, Nat’l Bureau of Econ. Res.

(May 1983).'5 This reduction in organizing is

consistent with the theory that new bargaining units

have more difficulty forming in states that prohibit

fair-share arrangements. There are also many

‘6 http://www.nber.org/papers/w1116.pdf

19

bargaining units where the elimination of a fair-share

arrangement forced the representative to abandon the

unit, even though workers had not decertified the

union, because representation was no _ longer

financially viable.'® See, e.g., American Sunroof Corp.-

West Coast, Inc., 243 NLRB 1128 (1979); North Mem’

Med. Ctr., 224 NLRB 218 (1976); Brewery Drivers and

Helpers Local Union 133, 1995 WL 1918089 (N.L.R.B.

Div. of Judges, Sept. 14, 1995).

Petitioner argues that exclusive representation

alone suffices to create and sustain effective union

representation, and relies on an _ imaginary

comparison between unionization rates in states that,

according to Petitioner, either allow or ban exclusive

representation. Pet. Br. at 41 & n. 20. But Petitioner’s

comparison is inapt.

Petitioner actually compares union membership

rates in states that have exclusive representation

systems with union membership rates in states that

have no collective bargaining system for public

employees at all — and where therefore it is obvious

that unions are not viable representatives regardless

of employee preferences regarding union represen-

tation..?7 The correct comparison to assess the

‘6 The NLRA permits represented employees to deauthorize a

fair-share arrangement contained in their collective bargaining

agreement. 29 U.S.C. § 159(e)(1). Deauthorization does not

terminate the collective bargaining agreement or the employees’

relationship with the union, as with decertification, but instead

annuls only the fair-share arrangement.

‘7 Three of the states that Petitioner cites — North and South

Carolina, and Virginia — ban all public sector collective

bargaining. N.C. Gen. Stat. § 95-98; Va. Code § 40.1-57.2; Branch

v. City of Myrtle Beach, 532 S.E.2d 289, 292 (S.C. 2000). The

fourth state, Georgia, bans collective bargaining for all public

20

relationship between exclusive representation and

union viability would be to compare exclusive

representative collective bargaining and an altern-

ative that actually involves some form of bargaining,

the most obvious of which is members-only collective

bargaining, a system where unions bargain only for

their members. Under a members-only system, a

union could bargain for increased wages and benefits

that would be available only to the members of the

union, meaning that an employee would need to join

the union to earn the higher wages or receive the

increased benefits. None of the states that Petitioner

cites have such a collective bargaining system, nor

does any other state.

It is no accident that the States do not use

members-only bargaining. As this Court has recog-

nized, such a system would not advance employers’

interests because it would be burdensome (and smack

of unfairness) for employers to implement different

wage, benefits, and grievance resol ition systems for

employees performing the same job. See Abood, 431

U.S. at 220 (“The designation of a single represent-

tative avoids the confusion that would result from

attempting to enforce two or more agreements specify-

ing different terms and conditions of employment.”).!*

employees save firefighters. Ga. Code Ann. §§ 20-2-989.10; 25-5-

4. In the remaining state, Mississippi, no statute authorizes

public sector collective bargaining, which “traditionally has been

construed as a prohibition” on such bargaining. James C. May,

The Law and Politics of Paying Teachers Salary Step Increases

upon Expiration of a Collective Bargaining Agreement, 20 Vt. L.

Rev. 753, 776 & n. 157 (1996).

18 See also Sen. Rep. No. 573 (1935), reprinted in 2 Leg. Hist.

of the National Labor Relations Act 2313 (1935) (“Since it is well-

nigh universally recognized that it is practically impossible to

apply two or more sets of agreements to one unit of workers at

21

Petitioner and his amici also would likely claim that a

system in which public employers grant higher wages

and benefits to union members violates the Equal

Protection Clause. So the data Petitioner cites says

nothing about the effect of exclusive representation

itself on union viability.!®

C. Employee representatives are _ less

effective in systems that do not fairly

distribute the cost of representation.

The unions that do form in states that bar fair-

share arrangements are less effective advocates for

the workers they represent. For example, in the

private sector, construction fatalities are 40% higher

in states that bar fair-share arrangements. Roland

the same time, or to apply the terms of one agreement to only a

portion of the workers in a single unit, the making of agreements

is impracticable in the absence of majority rule.”); H.R. Rep. No.

1147 (1935), reprinted in 2 Leg. Hist. of the NLRA 3070 (“There

cannot be two or more basic agreements applicable to workers in

a given unit; this is virtually conceded on all sides.”).

'9 Petitioner points out that exclusive representation regimes

still exist for “partial” public employees like homecare and

childcare providers, even after Harris held that fair-share

arrangements could not be used. Pet. Br. at 37-38. In fact, the

adverse effect of Harris on those units is already clear. Amicus

Freedom Foundation boasts that more than 65 percent of the

membership of one Washington childcare local resigned after

Harris. See App’x to Rebecca Friedrichs et al. Br.; see also

Maxford Nelson, Freedom Foundation Efforts Decimating SEIU

925, Freedom Found. (Oct. 15, 2015), available at

https://www.freedomfoundation.com/labor/freedom -foundation-

efforts-decimating-seiu-925/. Additionally, this Court’s decision

in Harris emphasized that the minimal role of the union

differentiated that system from collective bargaining for “full-

fledged” public employees, making Abood’s rationale inapplic-

able. 134 S. Ct. at 2634-35.

22

Zullo, Right-to-Work Laws and Fatalities in

Construction, 14 J. of Lab. & Soc’y 225, 228 (2011).

Fatality rates in states that bar fair-share agreements

do not vary significantly based on the state's

percentage of employees who are union members. /d.

at 231. But in states where employers are permitted

to fairly allocate the cost of collective bargaining

representation among all workers, “fatality rates with

low union density are about double the fatality rate

with high union density.” Jd. Accordingly, not only are

construction fatalities lower in states that allow fair-

share arrangements, but also “the positive effect that

unions have on reducing fatalities appears to be

stronger in [those] states.” Jd. at 232.

This finding is consistent with what economic

theory would predict: unions are less effective

representatives without fair-share fees because free-

riding leads to fewer resources for representing

workers. See Zullo, supra, at 225, 232 (data confirm

hypothesis that construction trades unions in states

that bar fair-share arrangements have “fewer

resources to devote to safety training and accident

prevention”). Dues from members must subsidize the

representation of non-member free riders, and there

are limits to how much members are willing to pay to

do so. As a result, these representatives will have

fewer resources per member to engage in core

representational activities.

Petitioner argues that the additional cost to

represent non-members is “minor.” Pet. Br. at 45. But

Petitioner provides no support for this assertion, and

it makes no sense. Petitioner’s argument is essentially

that the cost of representation is fixed, regardless of

the number of employees in a bargaining unit. It is

true that, for larger bargaining units, some economies

23

of scale exist that may moderate the cost of

representing non-members. See Section I.A., supra.

But if Petitioner were right that the costs of

representing non-members is “minor,” then fair-share

fees should be vanishingly small in large bargaining

units. This is simply not the case. For example, the

fair-share fee for Respondent AFSCME Council 31 —

which counts as members 90% of the 66,151

employees it represents — is roughly 79% of full mem-

bership dues. JA 76; AFSCME Council 31 2016 Form

LM-2 Report. Instead, the expense of negotiating and

administering contracts, and communicating with

bargaining unit workers, unquestionably increases

with unit size.

Petitioner also argues that unions do not actually

have to handle grievances for non-members. Pet. Br.

at 46-47. But Illinois requires all collective bargaining

agreements to provide procedures for grievance

arbitration that apply to “all employees in the

bargaining unit,” and further provides that, when the

grievance procedure involves arbitration, the “costs of

such arbitration shall be borne equally by the

employer and the employee organization.” 5 Ill. Comp.

Stat. 315/8 (emphasis added). Processing such

grievances, which frequently requires attorneys and

arbitrators, and may require economists and other

experts, does not come cheap.

Further, it makes sense for a state to mandate a

unit-wide grievance procedure because it serves the

employer's interest in uniformity. See Vaca v. Sipes,

386 U.S. 171, 191-92 (1967) (uniform grievance

procedures benefit employers because an exclusive

representative weeds out “frivolous grievances” and

assures “that similar complaints will be treated

consistently,” thereby reducing “the cost of the

24

grievance machinery.”). Uniform, unit-wide grievance

procedures have long been the norm for both public

and private employers. They are the traditional trade-

off for no-strike obligations. See Boys Mkts., Inc. v. Retail

Clerks Union, Local 770, 398 U.S. 235, 247-48 (1970). Such

procedures are simply not, as Petitioner would have

it, a union demand to which employers accede and

that unions could unilaterally forgo.

D. Opponents of public employee unions

understand and exploit the economic

logic of free riding.

Petitioner’s attempt to minimize the effect of

overruling Abood is undercut by his own amici’s

recognition of the power of the free rider logic. After

the Court’s decision in Harris, for example, amicus

Freedom Foundation sent flyers to homecare and

childcare workers with the slogan “Opt-out Now. Keep

Your Money. Lose Nothing.” Anti-union group targets

Oregon public sector unions, Northwest Labor Press

(Sept. 1, 2015).2° A reproduction of a flyer is included

in an Appendix to this brief. These flyers refiect

amicus Freedom Foundation’s attempt to exploit the

underlying economic Jogic: it makes sense to free ride

when, by law, unions must represent all workers for

free, and members who remain must pay additional

dues for those free riders.

There is no doubt that a decision overruling Abood

would be followed by a similar, if not more vigorous,

campaign to encourage union members to resign and

free-ride, with the goal of weakening or destroying

employee representation in jurisdictions that now use

20 https://nwlaborpress.org/2015/09/anti-union-group-targets-

oregon-public-sector-unions/

25

fair-share arrangements. See Letter from CEO Tom

McCabe to Freedom Foundation Membership (Oct. 1,

2017) (on file with author) (stating that a decision

overruling Abood would “take government unions out

of the game for good”). Far from disputing the problem

of free ridership in the absence of a fair-share

requirement, opponents of public sector unions seek to

exploit the problem to destabilize employee represent-

atives.

Ill. The Court Should Not Prohibit States from

Using What They Determine to be the Most

Effective Collective Bargaining System to

Fix Employment Terms and_ Resolve

Grievances.

There is no requirement that states establish

collective bargaining systems for public employees.

This Court has made clear that government officials

may, consistent with the First Amendment, negotiate

unit-wide contract terms with a majority-chosen

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

Knight, 465 U.S. 271, 288-90 (1984), just as

government officials may, in the alternative, choose to

consult exclusively with individuals, Smith v. Ark.

State Highway Emps., 441 U.S. 463, 464-66 (1979), or

with no one. Although most states use exclusive

representative bargaining to set terms for at least

some public employees, nine states do not authorize

any form of public employee collective bargaining

whatsoever. See Appendix to Br. for the States of New

York et al. as A.C. in Friedrichs v. California Teachers

Ass’n (14-915).

If a state decides to use exclusive representative

collective bargaining to set employment terms for a

unit of workers, however, the state should have the

26

authority to agree to allocate the costs of such

representation among all unit workers. Petitioner

argues that states have no legitimate policy reason to

make this choice because, according to Petitioner,

distributing the cost of collective bargaining across all

employees does not contribute to union stability. Pet.

Br. at 37-38. But basic economic theory and the actual

empirical evidence show otherwise.

In the same vein, Petitioner contends that, even if

spreading the cost of representation does lead to

adequately funded unions, public employers still do

not have an important interest in fair-share

arrangements because “(njo rational actor wants to

deal with a powerful negotiating opponent.” Pet. Br.

at 61. Petitioner’s view of public sector labor relations

is much too simplistic, however, and ignores the actual

evidence that effective employee representatives

perform an important function within the employer's

human resources system, thereby benefiting the

employers. The City of Chicago, for example, must

manage a workforce numbering in the tens of

thousands, including sanitation workers, police

officers, and firefighters, who perform the varied

functions necessary to maintain and provide services

to a city of over 2.7 million residents. The City must

have a method of fixing employment terms and

resolving employee grievances that will be accepted by

the workforce as fair. The City’s choice of an exclusive

representative collective bargaining system to

perform those functions requires an adequately

funded, effective employee representative, just as the

adversarial system of justice depends on adequate

representation of both sides.

Stable employee representation channels

employee concerns in a productive manner. See

27

Patricia N. Blair, Union Security Agreements in Public

Sector Employment, 60 Cornell L. Rev. 183, 189 (1975)

(Adequately funded public sector unions are less likely

to assume an “unnecessarily militant attitude toward

management.”). It helps run fair and efficient

“grievance machinery.” Vaca, 386 U.S. at 192. It gives

all employees a stake in workplace management,

which is especially important when seeking to

implement innovative solutions. See Knight, 465 U.S.

at 291 (describing public employers’ interest in basing

decisions on the “majority view” of employees); U.S.

Dep’t of Labor Task Force on Excellence in State and

Local Govt through Labor-Mgmt. Cooperation,

Working Together for Public Service: Final Report at 1

(1996) (finding numerous examples of public sector

labor-management collaborative solutions that were

“instrumental” in improving public services). Having

a known representative with whom public employers

are used to dealing handle employee grievances rather

than individual attorneys without a stake in or

understanding of the intended constructions of the

collective bargaining agreement is much more

advantageous to the public employer. Accordingly,

there are legitimate reasons for a public employer to

prefer to deal with effective public employee

bargaining representatives.

Upon choosing a system of exclusive represen-

tation, public employers should have the discretion to

also agree to fairly allocate the costs of that

representation to all of their employees who benefit

from it. Depriving public employers of that discretion

based on the false assumption that fair allocation

makes no difference to the quality and effectiveness of

representation is simply “inconsistent with sound

28

principles of federalism and the separation of powers.”

Garcetti v. Ceballos, 547 U.S. 410, 423 (2006).

CONCLUSION

For the foregoing reasons, the Seventh Circuit’s

decision should be affirmed.

Respectfully submitted,

BRADLEY RAYMOND STEPHEN P. BERZON

INTERNATIONAL Counsel of Record

BROTHERHOOD OF Scott A. KRONLAND

TEAMSTERS ANDREW KUSHNER

25 Louisiana Ave., N.W. ALTSHULER BERZON LLP

Washington, D.C. 20001 177 Post Street, Ste. 300

(202) 624-6832 San Francisco, CA 94108

(415) 421-7151

sberzon@altber.com

Counsel for Amicus Curiae

January 19, 2018

la

APPENDIX

Flyer from Freedom Foundation’s post-Harris v.

Quinn campaign to encourage resignations from

union membership.