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,

Vv.

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 THE NATIONAL EDUCATION

ASSOCIATION ET AL. AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

ALICE O’BRIEN

Counsel of Record

JASON WALTA

KRISTEN L. HOLLAR

National Education

Association

1201 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 822-7035

aobrien@nea.org

(Additional Counsel Listed on Inside Cover)

January 19, 2018

SSE a tN AEST ERE RAISE

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

=:

RISA L. LIEBERWITZ

General Counsel

American Association

of University Professors

Professor of Labor and

Employment Law

School of Industrial and

Labor Relations

Cornell University

361 Ives Hall

Ithaca, NY 14853

AARON NISENSON

Senior Counsel

NANCY LONG

Associate Counsel

American Association

of University Professors

1133 19th Street, NW, Suite 200

Washington, DC 20036

i

TABLE OF CONTENTS

pS Ee ena a mee aR ii

ES SIEA I OD 1

Introduction and summary of argument ................. 2

EE eee pe epee weer ae ae Tee ERO REIT ORT 5

I. Laws that regulate public-sector labor

relations have evolved over time and vary

enormously in their particulars......................... 6

Il. Public-sector collective-bargaining laws—

including those providing for agency fees—

are not subject to elevated constitutional

III. Petitioner and his supporting amici fail to

appreciate the governmental interests

served by robust collective bargaining

supported by agency fees ................cccseeeeeeeeeeeee 24

[V. Petitioner and his’ supporting amici

misstate both the risks posed _ by

eliminating agency fees and the deference

due to the government in its assessment of

IIs vcd deismrecnidisidanianneniiciicheenimietidats 29

ERIE EL LEE SSR LAAN Pe RISOTTO SRT 34

‘3

TABLE OF AUTHORITIES

Page(s)

Cases

Abood v. Detroit Bd. of Educ., 431 U.S. 209

EINE Tl cenditanicendikiaddisidinciedanaisineaidptmiingiencs 4,17, 24, 33

Adams v. Trustees of the Univ. of N.C.-

Wilmington, 640 ¥'.3d 550 (4th Cir. 2011)....... 20

Am. Fed’n of Gov't Employees v. Loy, 281 F.

Supp. 2d 59 (D.D.C. 2003), aff'd, 367

ie ft of. a | ener 16

Arnett v. Kennedy, 416 U.S. 134 (1974) ................ 23

Babbitt v. United Farm Workers, 442 U.S.

RET EIR TMS MS bE 16

Bailey v. Callaghan, 715 F.3d 956 (6th Cir.

RR EEE Se RS Ne Cn aT oon 17

Bennett v. Gravelle, 451 F.2d 1011 (4th Cir.

BE iasduccsitiihitisd statind ahh cated iciiaintndiiae all bidianiatearemdsteniies 18

Bd. of Educ. of Round Valley Unified Sch.

Dist. v. Round Valley Teachers Ass’n, 914

PE IEE MIEN .chesinnrntietnchinninabapcedipesonsercnsia 13

Cafeteria Workers Local 473 v. McElroy, 367

ey ED sichsnsiscutdeinsdesnsinbubidiinidioedibamevestieteses 6

Cent. State Univ. v. Am. Ass’n of Univ.

Professors, 526 U.S. 124 (1999) .................00e 16

Citizens United v. FEC, 558 U.S. 310 (2010)......... 22

City of Charlotte v. Local 660, Int'l Ass'n of

Firefighters, 426 U.S. 283, 286 (1976) ............ 17

Connick v. Myers, 461 U.S. 138 (198.) ............:008 23

Demers v. Austin, 746 F.3d 402 (9th Cir.

TIT Wschesstdtcisinndedesariusindigsaipmapthitehecatabesssinambanaune 20

ili

Engquist v. Ore. Dep't of Agric., 553 U.S. 591

SI iii sigs linsieusincsieuasicinihiiaranteiibiigaiaseiniiamnnids 15, 21

Fayette County Educ. Ass’n v. Hardy, 626

ee ee Ge Bs BED cnrcnceeniasecccceccsvecevess 12

Fraternal Order of Police v. Mayor & City

Council of Ocean City, 916 F.2d 919 (4th

ON i ad cabieicansmanddionte 18

Garcetti v. Ceballos, 547 U.S. 410 (2006)... 19-20, 22

Grutter v. Bollinger, 539 U.S. 306 (2008) ................ 1

Hanover Twp. Fed’n of Teachers, Local 1954

v. Hanover Cmty. Sch. Corp., 457 F.2d

IED encissdtnaksdapvenssdesdeaabacdanecosennens 18

Harris v. Quinn, 134 S. Ct. 2618 (2014).......... 30, 31

Ind. State Teachers Ass'n v. Bd. of Sch.

Comm'rs of the City of Indianapolis, 101

ee ee ee iy HED eiccnctinkcccenbcohscedscovncsuses 16

Kelley v. Johnson, 425 U.S. 238 (1976)...... 18, 20, 23

Kelo v. City of New London, 545 U.S. 469

RN AN aS th EE CCS eo 27

Laborers Local 236 v. Walker, 749 F.3d 628

gE SS RS i Be oR a a 16

Memphis Am. Fed’n of Teachers, Local 2032

v. Bd. of Educ. of Memphis City Sch., 534

Fe I Es BFE ectecscrsniceseideseciconesecssenss 17

Mich. State AFL-CIO v. Emp’t Relations

Comm'n, 551 N.W.2d 165 (Mich. 1996) ....16, 18

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

te IIE ct cnsiniiccteninandvidenioiies 15, 23, 24

Morse v. Frederick, 551 U.S. 393 (2007) ................ 19

iv

NLRB v., Yeshiva Univ., 444 U.S. 672 (1980) .......... 1

Norwood v. Harrison, 413 U.S. 455 (1973)............ 25

Palmer v. Bd. of Educ. of City of Chicago, 603

pf } -; 9. + 3 Seem 20

Perry Educ. Ass’n v. Perry Local Educators’

Fle Ue OO ee 17, 23

Phila. Fraternal Order of Corr. Officers v.

Rendell, 736 A.2d 573 (Pa. 1999).................060. 16

Pickering v. Bd. of Educ., 391 U.S. 563

CR ETRE BE SRS ACAI ie aR 9 AR NE 18

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

gk RI aS RES 19

Rutan v. Republican Party of Ill., 497 U.S. 62

(SS GF Earn ee Ee aes OR aa eee 14, 15

Sampson v. Murray, 415 U.S. 61 (1974)................ 33

Smith v. Ark. State Highway Emp., Local

FETE, SEE TBs Ge COD worsececccccevasecnccessccescene 18

State Mgmt. Ass’n of Conn., Inc. v. O'Neill,

529 A.2d 1276 (Conn. 1987)..............0..0008 16-17

United Fed’n of Postal Clerks v. Blount, 325

F. Supp. 879 (D.D.C.), aff'd, 404 U.S. 802

(SERS a AER Re aD ek IO GA RELS eden 17-18

United Public Workers v. Mitchell, 330 U.S.

a 23-24

United States v. Lopez, 514 U.S. 549 (1995)............ 5

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570

i cccemiieneuel 1

Univ. Profs of Ill., Local 4100 v. Edgar, 114

I a ss ersmteemnie 17

Walker v. Texas Div., Sons of Confederate

Veterans, Inc., 135 S. Ct. 2239 (2015).............. 21

Vv

Waters v. Churchill, 511 U.S. 661

IIIT dccitindeeiiiinicemnasaddeinneiiniiiindunsiiie 19, 22, 23, 33

W. Va. State Bd. of Educ. v. Barnette, 319

6 FEE ae SC Rae a een 19

Wis. Educ. Ass’n Council v. Walker, 705 F.3d

IS IIE cicncisscincndvcineatesnnmignseasnonss 16, 17

Constitutional Provisions and Legislative

Materials

I Sas scsseennrodensbacensneees passim

105 Ill. Comp. State. § 5/24-12 ............ccccsssseseeeeesees 13

oa csi annennenseiniadnenel 7

ainsi scicnsacnessinieasiirasineconeniatns 10

1995 Wis. Laws ch. 27, § 9320..............0ccccccsssereeees 10

2011 Ind. Legis. Serv. P.L. 48-2011 .................:::0e 9

2011 Mich. Legis. Serv. P.A. 103................ccccsssereeees i)

2011-2012 Wis. Legis. Serv. Act 10.................. 8, 10

Be es MA Bn GI, Bi bccsccccicovecsssccccsccescsvcess 8

2012 Mich. Legis. Serv. P.A. 349................sscccsreeeeees 9

2012 Mich. Legis. Serv. P.A. 436................0cceceeeeees 10

2014 Maryland Laws Ch. 369 ................::cceeseeeeeeees 11

2014 Minn. Sess. Law Serv. Ch. 211...................4 11

2015 Ind. Pub. Law 213-2015 § 188................:::0c0 )

SI a a ca sapebeemnbenninnian 10

SE FO BI CA, BG vccccccccssscccsscccesececesescsssescces 9

2015 Nevada Laws Ch. 490.............ccccsssccerssseeereees 10

RI Tw snecaccneenenicnsieoonccenvenssban 10

2017 Iowa Legis. Serv. Ch. 2 (H.F. 291)................ 10

Cal. Govt. Code §§ 3540—3549.3 .............ccccceceeeeeeees 12

Comm. Gem. Stat. § 10-1GBd......scccccccsscoccccscosecesees 9,13

a cee ac sennensenenenenes 13

es as capdeaphasininaseniont 13

Del. Code tit. 14, §§ 4014-4015... eeeee eee ee 13

Be I TT niin caccinriediniclehsemnetiueanscsienientins 12

a nn Pn 9

III I ss nina ncnbiedneianedentncesonio’ 13

I leaasanauliia 13

Mich. Comp. Laws § 141.1541..............cccccecccssseseees 13

Mich. Comp. Laws § 4233.210...........ccccccccccccsccssceseoess 9

Bees GO, GED © BB Be BG BD occ ccnccccccccccecsccccccosese 13

ie ts I Bt I os scsss ccccctecscvesencenimenccsics 10

Bs My I IID oii ccccccessccnccnecnscscncsncenncoease 13

SR ie os sce csivencssecennenectaasboncaden 12

gis My Ms CN III nc coicerseccocsenesussecincenccsts 25

ent, Se Oe I saccummndbnonegnen 10

Pa. Stat. tit. 24, §§ 1121-A—-1125-A............... ee 13

ci as i sccsosesntonnaesine 12

S. 5, 29th Gen. Assemb. (Ohio 2011).............00ccccceee g

ee I nsdn tathicnatidbsievatnpiccaevetaictiapubiens 8

Tenn. Code §§ 49-5-601—49-5-609 «000.0... cccccccceeeeeees 12

Se io ccsrentscnndsussnsenetnansisusies 13

Ps Ps I corns cccssuicccncccasenccssennesesens 12

Wash. Rev. Code § 41.59.020...............ccccccsseseseeeeees 12

I a caameriosiaionsl 14

Books, Articles, and Other Authorities

Brief of Amici Social Scientists, Friedrichs v.

Cal. Teachers Ass'n, 136 S. Ct. 1083

ai aa a 28

Kenneth Glenn Dau-Schmidt & Winston Lin,

The Recession, the Resulting Budget

Shortfalls, 2010 Elections and the Attack

on Public Sector Collective Bargaining in

the United States, 29 Hofstra Lab. &

I a i cnnspueeses 8,9

Freedom Foundation Fundraising Letter

SGT Me ichidnsetiindiassaacinninatidbusiadteseeneiveveieieiees 30

vii

Richard Freeman et al., Bargaining for the

American Dream: What Unions Do for

BEBBETRY GEE. BOG) onceccvecccccscccesccsccccccceses: 27-28

Richard Freeman et al., How Does Declining

Unionism Affect the American Middle

Class and Intergenerational Mobility?,

NBER Paper No. 21638 (Oct. 2015)........... 27-28

Andrea Germanos, “Internal Documents

Reveal-Wing Plan to Strike Public

Unions With ‘Mortal Blow,” Common

ee 31

Neil Gorsuch, Liberals ‘N Lawsuits, National

Review Online (Feb. 7, 2005) ..............ccccccceceees 28

Eunice S. Han, The Myth of Unions’

Overprotection of Bad Teachers: Evidence

from the District-Teacher Matched Panel

Data on Teacher (Jan. 15. 2016)................ 25-26

Ann C. Hodges, Lessons from the Laboratory:

The Polar Opposites on the Public Labor

Law Spectrum, 18 Cornell J.L. & Pub.

gg, SE SEE 11

Jeffrey H. Keefe, A Reconsideration and

Empirical Evaluation of Wellington’s and

Winter’s, The Unions and the Cities, 34

Comp. Lab. L. & Pol’y J. (2013) .............ccccceeeeees 7

David Madland & Alex Rowell, Attacks on

Public-Sector Unions Harm States: How

Act 10 Has Affected Education in

Wisconsin (Nov. 15, 2017) ............0.cceeccseeees 26-27

viii

Martin H. Malin, Sifting Through the

Wreckage of the Tsunami That Hit Public

Sector Collective Bargaining, 16 Emp.

Rts. & Emp. Pol’y J. 533 (2012) ...................006. g

Jack Metzler, Cleaning Up Quotations, J.

App. Prac. & Process (forthcoming 2018)........ 15

Sean E. Rogers et al., Effects of Unionization

on Graduate Student Employees: Student

Relations, Academic Freedom, and Pay,

2? fe fg ery 26

Daniel M. Rosenthal, Public Sector Collective

Bargaining, Majoritarianism, and

Reform, 91 Or. L. Rev. 673, 684 (2013) ............. 7

Joseph E. Slater, Public-Sector Labor in the

Age of Obama, 87 Ind. L.J. 189s, 203

GEE adicsniicanrinvencvsiceanicinnnbaipiinnpscetinesnaebenidianiiien 12-13

Joseph E. Slater, Public Workers:

Government Employee Unions, the Law,

and the State, 1900-1962 (2004) ........ 6, 7, 11-12

Joseph Slater, The Strangely Unsettled State

of Public-Sector Labor in the Past Thirty

Years, 30 Hofstra Lab. & Emp. L.J. 511

CIEE eencistiecansneniodininiiaiiaadimeeat 7,10

State Policy Network, About State Policy

FRI catcncsenticcincetitaenicdainataiennpniginineilindans 30

State Policy Network, Directory..................cc.cc00008 30

State Policy Network, State Workplace

POC Fels vetuassstnsevsstintutintiinninisiaiasiiiiaiaeas 31

1

INTEREST OF AMICI CURIAE

This brief is submitted with the consent of the

parties,' on behalf of the National Education Associa-

tion (“NEA”), 24 of NEA’s state affiliates,2 and the

American Association of University Professors

(“AAUP”).

NEA is a nationwide employee organization with

more than 3 million members, the vast majority of

whom are employed as teachers in public schools and

colleges throughout the United States. NEA has state

affiliates in each of the 50 states and over 14,000 lo-

cal affiliates in individual school districts, colleges,

and universities throughout the United States.

Where authorized by state law, thousands of NEA’s

local affiliates are parties to collective bargaining

agreements that provide for the collection of agency

fees.

' In accordance with Supreme Court Rule 37.6, amici state

that no counsel for a party authored this brief in whole or in

part, and that no person or entity, other than amici and their

counsel, made a monetary contribution intended to fund the

preparation and submission of this brief. All parties have filed

letters granting blanket consent to the filing of amicus briefs.

2 Those affiliates are the Arizona Education Association,

California Teachers Association, Connecticut Education Associa-

tion, Delaware State Education Association, Education Minne-

sota, Georgia Association of Educators, [llinois Education Asso-

ciation, Kansas NEA, Kentucky Education Association, Maine

Education Association, Maryland State Education Association,

Massachusetts Teachers Association, MEA-MFT (Montana),

Michigan Education Association, NEA-Alaska, NEA-New

Hampshire, NEA Rhode Island, New Jersey Education Associa-

tion, Ohio Education Association, Oregon Education Association,

Pennsylvania State Education Association, Vermont-NEA,

Washington Education Association, and Wisconsin Education

Association Council.

2

NEA, the California Teachers Association, and

several of their local affiliates are defendants in Yohn

v. California Teachers Association, currently stayed

in the Central District of California (No. 8:17-cv-

00202-JLS-DFM), which challenges a California law

allowing school districts to enter into agency shop ar-

rangements. Styling themselves the “California Pub-

lic-School Teachers,” the Yohn Plaintiffs have submit-

ted an amicus brief in this case.

AAUP represents the interests of over 40,000 fac-

ulty, librarians, graduate students, and academic

professionals, including a significant number in pub-

lic-sector collective-bargaining units. AAUP defends

academic freedom and the free exchange of ideas in

higher education. In cases that raise legal issues im-

portant to higher education or faculty members, the

AAUP frequently submits amicus briefs in the Su-

preme Court. See, e.g., Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338 (2013); Grutter v. Bollinger, 539

U.S. 306 (2003); NLRB v. Yeshiva Univ., 444 U.S. 672

(1980).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Unlike their counterpart in the private sector,

public-sector collective-bargaining laws vary from

state to state in almost every particular and have

changed—sometimes dramatically—over time. These

variations reflect the considered, and often evolving,

assessment of state and local governments of how

best to manage their workforces for the efficient de-

livery of services to the public. Considering the im-

portant values of federalism at stake, and recognizing

the paramount interest a government has in manag-

ing its own affairs, this Court has consistently de-

ferred to the government’s judgments when it acts as

3

an employer rather than as a regulator. As a result,

courts at every level have routinely rejected constitu-

tional challenges to various aspects of public-sector

collective-bargaining laws.

The same result should obtain in Petitioner's

broad challenge to a central feature of one of the most

common forms of public-sector workforce organiza-

tion: agency fees that support collective bargaining

with an exclusive representative. Petitioner and his

supporting amici claim that these arrangements—

and, indeed, any workplace rules that compel public

employees to speak or associate in connection with

employment matters—are subject to the most de-

manding level of First Amendment scrutiny. But that

standard finds no support in this Court’s cases, which

have consistently applied a lower level of scrutiny

when the government manages its own operations

and deals with its own employees.

Their claim that government may only proscribe,

but not prescribe, workplace speech and association

in employment matters reveals a fundamental dis-

connect with the controlling caselaw that accommo-

dates the practical realities of government employ-

ment. The government does not hire employees to re-

frain from speaking or acting; it hires them to carry

out government functions, often through speech and

association with others. If a state or locality could not

enact broad workplace rules to promote stable and

productive government workplaces, and could not al-

so compel its employees to cooperate with the imple-

mentation and execution of those rules, there would

be little chance for the efficient provision of public

services.

Petitioner and his supporting amici also sell short

the significant, and even compelling, governmental

interests served by robust collective bargaining sup-

4

ported by agency fees. In addition to the conventional

interest in setting workplace terms through negotia-

tions with a single, adequately financed bargaining

representative, public employers are justified in rely-

ing on these arrangements to improve the quality of

public services provided—including the educational

improvements in public schools and universities that

have been shown to accompany robust collective bar-

gaining. The government also has a strong interest in

ensuring that its choice of workplace organization

does not impose negative externalities on the public

in the form of the reduced economic mobility and op-

portunity that accompany low levels of union density.

Finally, Petitioner and his amici misstate the risk

that the elimination of agency fees, and the corre-

sponding introduction of the “free rider” problem,

pose to the government’s interest in collective bar-

gaining. If this Court rules in Petitioner’s favor, well-

financed groups—including several of Petitioner’s

own supporting amici—plan to weaponize that ruling

by launching extensive campaigns targeted at public

employees, urging them to drop their union member-

ship. The avowed purpose of these campaigns is to

deliver a “mortal blow” to public-sector unions and

“finish them off for good.” Whether these efforts will

ultimately succeed is beside the point. State and local

governments are entitled to take reasonable

measures to address, not only the concern that a

“mortal blow” will actually occur and thereby elimi-

nate the union’s capacity to bargain, but the disrup-

tion and disharmony that could reasonably be ex-

pected to arise in efforts to deliver that blow. For all

of these reasons, Abood v. Detroit Board of Education,

431 U.S. 209 (1977), should remain the law.

5

ARGUMENT

A public employer—whether it is a school, hospi-

tal, university, or transit system—must hire, train,

manage, discipline, and retain a skilled workforce,

and must provide compensation that is fair and com-

petitive. As with many challenges that face state or

local governments, “considerable disagreement exists

about how best to accomplish th[ose] goal[s].” United

States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy,

J., concurring). Some jurisdictions have opted to

make all personnel decisions unilaterally, in part

by ad hoc decision-making, in part by internal poli-

cies or directives, and in part by prescriptive lawmak-

ing in the form of statutes and regulations. But other

jurisdictions have made the judgment that there are

advantages to public employers and employees alike

in a system under which some of the terms and condi-

tions of employment are the product of agreement ra-

ther than fiat. In these fundamental differences of

approach to personnel relations, “the theory and utili-

ty of our federalism are revealed, for the States may

perform their role as laboratories for experimentation

to devise various solutions where the best solution is

far from clear.” Id.

Petitioner’s constitutional challenge to a key fea-

ture of a common form of public-sector workforce or-

ganization—agency fees that support collective bar-

gaining with an exclusive representative—should be

rejected. Public-sector collective-bargaining arrange-

ments in this country come in a variety of shapes and

sizes, and they have evolved over time. These ar-

rangements, however, have never been understood to

implicate the kinds of First Amendment or other con-

stitutional concerns that apply when the government

regulates private speech or conduct. Instead, in decid-

ing whether to allow collective bargaining, and on

6

what terms, the government has received the broad

deference that traditionally applies to the “dispatch of

its own internal affairs.” Cafeteria Workers Local 473

v. McElroy, 367 U.S. 886, 896 (1961).

The same should occur here. Illinois’ decision to

authorize and execute an agency-fee arrangement is

more than justified by its interest as employer in se-

curing the benefits of collective bargaining. This

Court should reject the efforts of Petitioner and his

supporting amici to upend controlling First Amend-

ment principles, to disparage a government’s strong

interest in robust collective bargaining, and to dis-

miss the harm that could reasonably be expected to

occur if agency fees were declared unlawful.

I. Laws That Regulate Public-Sector Labor

Relations Have Evolved Over Time and

Vary Enormously in Their Particulars

Public employees have organized themselves into

unions and petitioned their employers for better wag-

es and working conditions for most of America’s his-

tory. In the 1830s, both state and federal workers pe-

titioned for a ten-hour workday.* Postal workers

mounted organizing campaigns in the late nineteenth

century.* Labor organizing among public employees

was widespread by the turn of the twentieth century,

and by the 1930s public-sector union membership

rates were not markedly lower than in the private

sector.®

8 Joseph E. Slater, Public Workers: Government Employee

Unions, the Law, and the State, 1900-1962 16 (2004) (“Slater,

Public Workers” herein).

4 Id.

5 Id. at 3.

7

In 1959, Wisconsin became the first state to enact

a public-employee relations act.® Like the National

Labor Relations Act (NLRA), it provided for the right

to organize and engage in bargaining over “wages,

hours, and conditions of employment,” and it con-

tained provisions concerning unfair labor practices.’

But it did not permit strikes or contain a mechanism

for resolving impasses.* Over the next seven years,

fifteen more states enacted bargaining laws covering

at least some categories of public employees.? And by

2007, all but seven states allowed bargaining by at

least some groups of public employees. !°

Most public-sector bargaining laws were—and

still to this day r:main—more deferential to man-

agement control than the NLRA.!! For example, the

overwhelming majority of these laws prohibited

strikes and contained a narrower scope of bargaining

than the NLRA.!?

8 Jd. at 158-59. See also 1959 Wis. Laws ch. 509; Daniel M.

Rosenthal, Public Sector Collective Bargaining, Majoritarian-

ism, and Reform, 91 Or. L. Rev. 673, 684 (2013) (describing Wis-

consin as the first state to enact a public-sector bargaining law).

’ Slater, Public Workers at 181-84.

8 Jd. Impasse procedures were added in 1962. /d. at 186—89.

9 Id. at 191.

\0 Joseph Slater, The Strangely Unsettled State of Public-

Sector Labor in the Past Thirty Years, 30 Hofstra Lab. & Emp.

L.J. 511, 512—13 (2013).

\! Jeffrey H. Keefe, A Reconsideration and Empirical Eval-

uation of Wellington’s and Winter’s, The Unions and the Cities,

34 Comp. Lab. L. & Pol’y J. 251, 252 (2013) (observing that

while state bargaining laws often replicate portions of private-

sector law, no state has transplanted it wholesale).

12 Td. at 264; Slater, Public Workers at 198.

8

Since the financial crisis of 2007 and the ensuing

Great Recession, the pendulum began to swing the

other direction. In the past decade, state legislatures

have scaled down pensions, cut wages, and curtailed

bargaining rights.'3 Most notably, in 2011, Wisconsin

dramatically narrowed bargaining rights for most

types of public employees through a law known as

Act 10.'4 While the bill retained fairly robust bargain-

ing provisions for police, firefighters, and other “pub-

lic safety” employees, it restricted bargaining for all

other public-sector employees to the single topic of

base wages and required annual recertification of

their bargaining representatives by the vote of a ma-

jority of employees in the unit.!5

A number of other states, including Tennessee,

Indiana, Michigan and Ohio also enacted sweeping

changes to their bargaining laws in 2011. In Tennes-

see, the legislature replaced the state’s more tradi-

tional bargaining law for public-school teachers with

a new “collaborative conferencing” statute that elimi-

nates exclusive representation altogether and replac-

es it with a conference at which employers discuss a

narrowly-drawn list of topics with multiple stake-

holders, subsequent to which the employer may act

unilaterally on any issue.'® The Indiana and Michi-

gan statutes both substantially narrow the scope of

'8 See generally Kenneth Glenn Dau-Schmidt & Winston

Lin, The Great Recession, the Resulting Budget Shortfalls, the

2010 Elections and the Attack on Public Sector Collective Bar-

gaining in the United States, 29 Hofstra Lab. & Emp. L.J. 407

(2012).

14 2011-2012 Wis. Legis. Serv. Act 10.

'6 Jd.; see also Dau-Schmidt & Lin, supra note 13 at 417-19.

'6 2011 Tenn. Laws Pub. Ch. 378 (codified at Tenn. Code

§ 49-5-601 et seq.).

9

bargaining.'? The Indiana statute, in particular, lim-

its the scope of bargaining to just salary and wages—

and even, as to those, only within the parameters al-

lowed by detailed statutory provisions—as well as re-

lated fringe benefits such as health insurance and

paid time off.’ In Ohio, the state legislature passed

amendments to the bargaining law to prohibit bar-

gaining over most non-wage subjects,'? but voters

later overturned those amendments at the ballot

box.?°

After 2011, states continued to make numerous

changes to public-employee bargaining laws. For ex-

ample, in 2012, Michigan enacted a “right to work”

law that prohibits agency fees for most public and

private sector employees.*! Connecticut restricted

bargaining over teacher evaluations and retirement

incentive plans.22 Nevada and Indiana added addi-

tional procedures for ratifying bargaining agree-

ments.23 lowa narrowed the scope of mandatory bar-

gaining subjects significantly and imposed substan-

17 2011 Mich. Legis. Serv. P.A. 103; 2011 Ind. Legis. Serv.

P.L. 48-2011.

18 See Ind. Code § 20-29-6-7.

19 §. 5, 29th Gen. Assemb. (Ohio 2011). See also Dau-

Schmidt & Lin, supra note 13 at 420 (discussing major legisla-

tive developments after the 2010 midterm elections).

20 Martin H. Malin, Sifting Through the Wreckage of the

Tsunami That Hit Public Sector Collective Bargaining, 16 Emp.

Rts. & Emp. Pol'y J. 533, 538 (2012).

21 2012 Mich. Legis. Serv. P.A. 349 (codified at Mich. Comp.

Laws § 423.210) (retaining agency fees for police and fire de-

partment employees).

22 Conn. Gen. Stat. § 10-153d(b).

23 2015 Ind. Pub. Law 213-2015 § 188; 2015 Nevada Laws

Ch. 84.

10

tial restrictions on the selection and retention of cer-

tified bargaining representatives.2* Several states

enacted or expanded laws allowing bargaining

agreements to be reopened or abrogated in the event

of fiscal or academic “distress.”25 And numerous

states restricted the scope of bargaining.”®

While the post-recession changes to bargaining

laws are unique in their scale, changes to bargaining

laws are nothing new. Compared with the NLRA,

which has remained relatively stable over time, since

their inception public-sector labor laws have “experi-

enced much wilder swings back and forth: not only

through agency interpretation, but also through sig-

nificant rewriting of statutes, and the creation and

elimination of statutes,”2’ as states tailor their laws.

In Wisconsin, for example, dozens of changes have

been made to the bargaining law since its initial en-

actment in 1959. These changes ranged from minor

and technical amendments, to removing a sunset

provision,?® to substantially altering the list of pro-

hibited bargaining topics,?° to the full-scale overhaul

that took place in 2011.%°

24 See 2017 lowa Legis. Serv. Ch. 2 (H.F. 291).

25 See, e.g., 2012 Mich. Legis. Serv. P.A. 436 (codified at

Mich. Comp. Laws § 141.1541 et seg.); 2015 Nevada Laws Ch.

490 (codified at Nev. Rev. Stat. § 288.150(3)(a)-(d), (4)); 2015

Ohio Laws File 22 (codified at Ohio Rev. Code § 3302.10).

26 See, e.g., 2015 Kan. Laws 92 (restricting scope to wages

and hours, plus three topics each party may choose from a list).

2? Slater, supra note 10 at 512.

28 1973 Wis. Laws ch. 64.

29 1995 Wis. Laws ch. 27, § 9320.

30 2011-12 Wis. Legis. Serv. Act 10.

11

Development of public-employee bargaining law

in some states has defied national trends. For exam-

ple, even as Wisconsin enacted the first bargaining

law in 1959, North Carolina passed a law prohibiting

organizing by public employees, and forbidding public

employers from reaching bargaining agreements or

other “understandings” with their employees.*! And

even as many states have curtailed bargaining rights

over the last decade, Minnesota created a new state

labor board and expanded public employees’ right to

organize, and Maryland removed a sunset provision

in its law in order to make its state labor board per-

manent.*?

Today, there continues to be tremendous variety

in bargaining regimes between states.** Existing laws

vary in every particular, from whether bargaining is

allowed at all, to proper subjects of bargaining, to

when and how bargaining must be conducted. The

bargaining regimes covering NEA’s own members il-

lustrate this diversity. In the context of K-12 teach-

ers,*4 thirty-four states and the District of Columbia

31 Slater, Public Workers at 164.

82 See 2014 Minn. Sess. Law Serv. Ch. 211 (creating rights

similar to those under Section 7 of the NLRA); 2014 Maryland

Laws Ch. 369.

38 See generally Ann C. Hodges, Lessons from the Laborato-

ry: The Polar Opposites on the Public Labor Law Spectrum, 18

Cornell J.L. & Pub. Pol’y 735 (2009) (comparing laws in Illinois

and Virginia).

34 We discuss K-12 teachers here for simplicity’s sake. Some

states cover all public employees under one public-employee re-

lations act; others cover education employees under a separate

bargaining law; and still other states cover various types of edu-

cation employees—such as teachers, support professionals, and

higher education employees—under three or more separate bar-

gaining laws. Cf. Slater, Public Workers at 96 (estimating that

(continued . . .)

12

require school boards to recognize and bargain with

units of teachers that demonstrate majority employee

support; nine states permit, but do not require, pub-

lic employers to recognize and bargain with an exclu-

sive representative;°® one state provides for recogni-

tion of and “conferencing” with multiple employee

groups, each of which must demonstrate a threshold

level of support;3’ and six states prohibit bargaining

altogether.**

Among the states that allow teachers to bargain,

the scope of bargaining varies widely. At one end of

the spectrum, Wisconsin restricts bargaining for most

public employees, including teachers, to the sole issue

of total base wages. At the other end of the spectrum,

the bargaining laws that apply to public school teach-

ers in Rhode Island and Washington broadly require

bargaining over wages, working, conditions, and

terms and conditions of employment, without specify-

ing any permissive or prohibited topics of bargain-

ing.°? Many states expressly prohibit bargaining on

issues like pensions,*° layoffs,4! dismissals for

there were around 110 laws covering various categories of public

employees as of 2004).

35 See, e.g., Cal. Govt. Code §§ 3540-3549. 3.

36 See, e.g., Fayette County Educ. Ass'n v. Hardy, 626

S.W.2d 217, 219 (Ky. App. 1980).

87 See Tenn. Code §§ 49-5-601—49-5-609.

38 See, e.g., Tex. Gov't Code § 617.002.

39 RI. Gen. Laws § 28-9.3-2; Wash. Rev. Code

§ 41.59.020(2).

40 See, eg., Haw. Rev. Stat. Ann § 89-9(d); NJ. Stat.

§ 34:13A-8.1. See also Joseph E. Slater, Public-Sector Labor in

the Age of Obama, 87 Ind. L.J. 189, 193, 203 (2012) (noting that

while public-sector unions and bargaining laws are frequently

blamed for pension deficits, “in the vast majority of jurisdictions,

(continued . . .)

13

cause,*2 and evaluations,*? or such issues are re-

moved from the realm of bargaining by separate stat-

utes with which bargaining agreements may not con-

flict.44

State laws also vary tremendously in regulating

the bargaining process itself. Statutes may permit, or

require, that bargaining impasses be resolved via

mediation, fact-finding, binding arbitration, economic

action, or some combination of these—and it may im-

pose various requirements and deadlines on resolu-

tion proceedings, or none at all.*5

Finally, state bargaining laws differ as to wheth-

er they allow, or do not allow, agency fees for educa-

tion employees. At present, twenty-two states and the

public sector unions are not even permitted to bargain about

pensions,” which are governed by separate statutes).

4! See, e.g., 105 Ill. Comp. Stat. § 5/24-12 (career status

cannot be the primary factor in layoffs); Nev. Rev. Stat.

§ 288.151; Tenn. Code § 49-5-608 (b)(5).

42 See, e.g., Ind. Code § 20-29-6-4.5; lowa Code § 20.7.

43 See, e.g., Conn. Gen. Stat. § 10-153d(b); D.C. Code §§ 1-

617.08(b), 1-617.18; Tenn. Code § 49-5-608 (b)(3).

44 See, e.g., Bd. of Educ. of Round Valley Unified Sch. Dist.

v. Round Valley Teachers Ass'n, 914 P.2d 193, 205 (Cal. 1996)

(the provision of a collective-bargaining agreement cannot con-

flict with the requirements of the Education Code, which gov-

erns, layoffs, evaluations, and dismissals).

45 See, e.g., N.D. Cent. Code § 15.1-16-15 (permitting media-

tion or fact-finding, but leaving its use to the discretion of the

parties); Del. Code tit. 14, §§ 4014—4015 (providing that media-

tion must be initiated if no agreement is reached within 30 days

of an existing agreement’s expiration, and arbitration must be

initiated if the dispute is not resolved after a reasonable period

of mediation); Pa. Stat. tit. 24, §§ 1121-A—1125-A (laying out

detailed requirements for the mandatory use of mediation, fact-

finding, and arbitration).

14

District of Columbia permit the collection of agency

fees for K-12 teachers, while twenty-eight states pro-

hibit them.*6 As with many other aspects of public

sector labor law, there are states that have chosen to

allow agency fees for certain categories of employ-

ees—such as public safety employees—and prohibit

them for teachers, as in Wisconsin.*’? And there are

other states, as noted above, that have changed posi-

tions on the issue over time.

Il. Public-Sector Collective-Bargaining Laws—

Including Those Providing for Agency

Fees—Are Not Subject to Elevated Constitu-

tional Scrutiny

Petitioner and his supporting amici contend that

the terms and conditions of employment established

by the nation’s diverse collection of public-sector labor

laws implicate matters of the utmost public concern

and, more to the point, that public employees’ work-

place speech and associational activity occurring in

connection with those laws must receive the highest

level of constitutional protection. See Petitioner's

Brief at 19-22; Brief of Amicus United States at 12—

15; Brief of Amici California Public-Schoo] Teachers

(“CPST”) at 6-14. Neither history nor reason can sus-

tain that claim. The exacting scrutiny Petitioner asks

for “finds no support” in this Court’s cases, which

have “consistently applied a lower level of scrutiny”

when the government manages its own operations

and deals with its own employees. Rutan v. Republi-

can Party of Ill., 497 U.S. 62, 98 (1990) (Scalia, J.,

dissenting).

46 See Brief of Respondent Union at 2.

47 Wis. Stat. § 111.70(1)(f, (2).

15

A. As this Court has recognized, “there is a cru-

cial difference, with respect to constitutional analysis,

between the government exercising the power to reg-

ulate or license, as lawmaker, and the government

acting as proprietor, to manage its internal opera-

tion”—a difference that is “particularly clear” in “the

context of public employment.” Engquist v. Ore. Dep't

of Agric., 553 U.S. 591, 598 (2008) (cleaned up*®); see

also Rutan, 497 U.S. at 94 (1990) (Scalia, J., dissent-

ing) (recognizing this difference in constitutional

analysis “in many contexts, with respect to many dif-

ferent constitutional guarantees”). When the gov-

ernment is acting as a proprietor, rather than regula-

tor, “the government’s interest in achieving its goals

as effectively and efficiently as possible” is elevated

from “a relatively subordinate interest” to a “signifi-

cant one.” Engquist, 553 U.S. at 598—99 (cleaned up).

As a result, this Court and others have recog-

nized that the various features of public-sector labor-

relations laws are not amenable to constitutional

challenges by employees or their union representa-

tives. Instead, decision after decision has confirmed

the government’s bvoad authority to determine for

each of its various workforces issues such as: whether

to permit collective bargaining in the first instance;*9

which entity shall serve as bargaining representa-

48 See generally Jack Metzler, Cleaning Up Quotations, J.

App. Prac. & Process (forthcoming 2018), https://perma.cc/43XE-

96W5.

49 See Minn. State Bd. for Cmty. Colleges v. Knight, 465

U.S. 271, 291-92 (1984) (rejecting public employees’ First

Amendment challenge to a statute requiring public employers to

engage in official exchanges of views only with their professional

employees’ exclusive representatives on employment-related

policy questions).

16

tive; the manner in which a representative may be

selected or removed;*! which topics will be covered by

bargaining;®? which employees will be allowed to se-

lect a representative for bargaining;®’ the composition

50 See Ind. State Teachers Ass'n v. Bd. of Sch. Comm'rs of

the City of Indianapolis, 101 F.3d 1179, 1181-82 (7th Cir. 1996)

(rejecting Equal Protection challenge to school district’s decision

to recognize an exclusive representative without ascertaining its

support among the represented employees); Phila. Fraternal

Order of Corr. Officers v. Rendell, 736 A.2d 573, 577 (Pa. 1999)

(rejecting claims that it violates the First Amendment or Equal

Protection Clause for “a public employer to force its employees to

be represented by a union chosen solely by the public employer

and against the will of the employees”).

5! See Babbitt v. United Farm Workers, 442 U.S. 289, 312-

13 (1979) (rejecting First Amendment challenge to statutory

election procedures for a collective-bargaining representative);

Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 656 (7th Cir.

2013) (rejecting Equal Protection challenge to statute requiring

annual recertification of the exclusive representative by a major-

ity of the employees in the bargaining unit).

52 See Laborers Local 236 v. Walker, 749 F.3d 628, 634—40

(7th Cir. 2014) (rejecting First Amendment and Equal Protec-

tion challenges to statute prohibiting employers from reaching

binding agreements with employees’ representatives on any sub-

ject other than employees’ base wages); Wis. Educ. Ass'n Coun-

cil, 705 F.3d at 654—56 (rejecting Equal Protection challenge to

the same provision); see also Mich. State AFL-CIO v. Emp't Re-

lations Comm'n, 551 N.W.2d 165, 173-74 (Mich. 1996) (rejecting

First Amendment challenge to statute prohibiting public em-

ployers from collectively bargaining certain subjects).

53 See Cent. State Univ. v. Am. Ass'n of Univ. Professors, 526

U.S. 124, 127-29 (1999) (per curiam) (rejecting Equal Protection

challenge to the exclusion of university professors from the oth-

erwise general collective-bargaining scheme for public employ-

ees); Am. Fed’n of Gov't Employees v. Loy, 281 F. Supp. 2d 59, 65

(D.D.C. 2003) (rejecting First Amendment and Equal Protection

challenges to administrative action excluding airport security

screeners from collective bargaining), affd, 367 F.3d 932 (D.C.

Cir. 2004); State Mgmt. Ass’n of Conn., Inc. v. O’Neill, 529 A.2d

(continued . . .)

17

of units for bargaining;®** whether to grant the repre-

sentative privileged access to the worksite or other

channels of workplace communication;®®> whether to

ensure that the representative can obtain resources

for support of its bargaining activities;°® whether to

allow strikes in support of the representative’s de-

mands;*’ or even whether to prohibit bargaining alto-

1276, 1278-80 (Conn. 1987) (rejecting Equa! Protection and Due

Process challenges to statute excluding managers from collective

bargaining and union representation).

54 Univ. Profls of Ill., Local 4100 v. Edgar, 114 F.3d 665,

667—68 (7th Cir. 1997) (rejecting Equal Protection challenge to

statute consolidating faculty representation on different univer-

sity campuses into one bargaining unit).

55 Perry Educ. Ass’n v. Perry Local Educators’ Ass'n, 460

U.S. 37, 45—49 (1983) (rejecting First Amendment challenge to

school policy allowing certified representative—but not a rival

union—access to school mailboxes); Memphis Am. Fed’n of

Teachers, Local 2032 v. Bd. of Educ. of Memphis City Sch., 534

F.2d 699, 702—03 (6th Cir. 1976) (rejecting First Amendment

and Equal Protection challenge to school policy granting exclu-

sive privileges to recognized union with respect to school bulle-

tin boards and mail service, use of school facilities for meetings,

access to schools by persons not assigned to those schools, leave

policy, and the right to make announcements at faculty meet-

ings).

56 See Abood, 431 U.S. at 224~31 (rejecting First Amend-

ment challenge to agency fees that support the representative's

activities germane to collective bargaining); see also City of

Charlotte v. Local 660, Int'l Ass’n of Firefighters, 426 U.S. 283,

286 (1976) (rejecting Equal Protection challenge to public em-

ployer’s refusal to allow payroll deductions for union dues); Wis.

Educ. Ass’n Council, 705 F.3d at 645-53, 657 (rejecting First

Amendment and Equal Protection challenges to statute elimi-

nating payroll deductions of union dues for certain categories of

public employees); Bailey v. Callaghan, 715 F.3d 956 (6th Cir.

2013) (same).

57 United Fed’n of Postal Clerks v. Blount, 325 F. Supp. 879,

882 (D.D.C.) (holding that public employees have no constitu-

(continued . . .)

18

gether.5® These decisions reflect the significant defer-

ence due to the government’s “choice of an organiza-

tional structure” that it deems to be most effective for

managing its workforce. Kelley v. Johnson, 425 U.S.

238, 246 (1976) (plurality opinion).

B. Petitioner and his supporting amici make only

a limited attempt to grapple with this body of law es-

tablishing the government’s elevated “interests as an

employer in regulating the speech of its employees.”

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

Their primary argument on this point is that,

while the Pickering line of cases may apply to circum-

stances that involve a restriction on public-employee

speech, it does not extend to cases involving compul-

sion of workplace speech or activity. See Pet. Br. at 24

(“The government’s interest as an employer in pre-

venting employee expressive activities from interfer-

ing with workplace operations cannot justify forcing

employees to support expressive activities”); see also

U.S. Br. at 24; CPST Br. at 15-16. They argue that

compelling the speech of public employees is in some

sense “worse” than restricting it, and that a higher

tional right to strike), affd, 404 U.S. 802 (1971); Bennett v.

Gravelle, 451 F.2d 1011, 1012-13 (4th Cir. 1971) (same); Mich.

State AFL-CIO, 551 N.W.2d at 174 (same).

58 See Smith v. Ark. State Highway Emp., Local 1315, 441

U.S. 463, 465 (1979) (rejecting First Amendment challenge to

employer's refusal to allow collective bargaining); Fraternal Or-

der of Police v. Mayor & City Council of Ocean City, 916 F.2d

919, 921-24 (4th Cir. 1990) (same with regard to city charter

provision mandating that no employee organization should be

recognized as bargaining agent or representative of city employ-

ees); see also Hanover Twp. Fed’n of Teachers, Local 1954 v

Hanover Cmty. Sch. Corp., 457 F.2d 456, 461 (7th Cir. 1972)

(Stevens, J.) (“there is no constitutional duty to bargain collec-

tively with an exclusive bargaining agent”) (cleaned up).

19

level of constitutional scrutiny must therefore apply.

CPST Br. at 15.

This Court has already recognized that the dis-

tinction Petitioner and his supporting amici seek to

draw is an empty one “without constitutional signifi-

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

487 U.S. 781, 796 (1988). But more to the point, their

suggestion that the government may only proscribe—

but not prescribe—workplace speech reveals a fun-

damental disconnect between their arguments and

“the practical realities of government employment.”

Waters v. Churchill, 511 U.S. 661, 672 (1994) (plurali-

ty opinion).

An example offered by Amici California Public-

School Teachers (“CPST”) unwittingly proves the

point. Looking to the public-school context, they ob-

serve:

On the one hand, public schools have broad

power to prohibit the utterance of a disrup-

tive message, say by disciplining a student for

unfurling a banner urging drug use. On the

other hand, public schools lack similar power

to compel the support of a favored message,

say by disciplining a student for failing to sa-

lute the flag.

CPST Br. at 16 (citing Morse v. Frederick, 551 U.S.

393, 410 (2007), and W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 642 (1943)).

As true as this may be for public-school students,

Amici CPST seems unaware that the same constitu-

tional principles would not apply to an employee in a

public elementary or secondary school setting. In-

stead, that employee could be subject to discipline or

termination even for on-the-job speech that is not dis-

ruptive. See Garcetti v. Ceballos, 547 U.S. 410, 420

20

(2006) (extending no constitutional protection “when

public employees make statements pursuant to their

official duties”). And, more fundamentally, a school

employee, unlike a student, could face adverse action

for failing to lead the Pledge of Allegiance.®® See

Palmer v. Bd. of Educ. of City of Chicago, 603 F.2d

1271, 1274 (7th Cir. 1979); see also Kelley, 425 U.S. at

245—46 (plurality opinion) (observing that there is no

constitutional constraint on a police department re-

quiring its officers to salute the flag while in uni-

form). In other words, the context of public employ-

ment changes everything.

That is because, at bottom, public employment is

an extended exercise in compelled speech and associ-

ation. The government does not hire employees to re-

frain from speaking or acting; it hires them to carry

out government functions, often through speech and

association with others. These government functions

frequently involve matters of significant public con-

cern, and in order to see their goals accomplished,

government employers exercise a “significant degree

o. control over their employees’ words and actions.”

Garcetti, 547 U.S. at 418.

The arguments of Petitioner and his supporting

amici are blind to this reality. Indeed, if this Court

were to adopt their misguided position, a host of

59 As this Court noted in Garcetti, the general principles

applied to public employment in that case do not necessarily

decide what rights teachers and scholars have in the exercise of

their academic freedom. 547 U.S. at 425. Since then, several

courts have recognized that “teaching and academic writing”

receive a higher degree of constitutional protection than ordi-

nary workplace speech. See Demers v. Austin, 746 F.3d 402, 412

(9th Cir. 2014); Adams v. Trustees of the Univ. of N.C.-

Wilmington, 640 F.3d 550, 562 (4th Cir. 2011).

21

workforce-management practices that are common in

the public sector would be called into question.® For

example, “exacting scrutiny” would presumably apply

to public-sector workplace rules requiring employees

to report instances of workplace harassment, corrup-

tion, or other misconduct; requiring them to partici-

pate actively in workplace team-building or human-

resources trainings; or requiring them to respond to

inquiries from the public about government services

and programs. If a state or locality could not enact

broad workplace rules to promote stable and produc-

tive government workplaces, and could not also com-

pel its employees to cooperate with the implementa-

tion and execution of those rules, “there would be lit-

tle chance for the efficient provision of public ser-

vices.” Id.

C. Beyond the examples already cited, Petitioner

and his supporting amici give scant attention to this

most “basic principle({]” that the “government has

significantly greater leeway in its dealings with citi-

zen employees than it does when it brings its sover-

eign power to bear on citizens at large.” Engquist, 553

U.S. at 599. Instead, their arguments rely largely on

cases dealing with the government acting, not as a

proprietor managing its own affairs, but as 2°" +-

69 Accepting their position would also make a hash out of

this Court’s “government speech” doctrine. Under Petitioner's

view, an employee hired to communicate government messages

on matters of public concern would presumably have a constitu-

tional right of the highest order to refuse to participate in fur-

thering a message that is contrary to his beliefs. But, as this

Court has observed, if the First Amendment restricted “govern-

ment statements (and government actions and programs that

take the form of speech),” then “government would not work.”

Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S.

Ct. 2239, 2245—46 (2015).

22

eign regulating private speech and association. See,

e.g., Pet. Br. at 19-21. Their attempt to import those

cases into the public-employment context fails at the

threshold because the practice they challenge—a re-

quirement for non-member employees to financially

support the workplece representation they receive

from the exclusive bargaining agent—has “no rele-

vant analogue to speech by citizens who are not gov-

ernment employees.” Garcetti, 547 U.S. at 424.

Typical of their confusion on this point is Amici

CPST’s claim that authorization for agency fees in

the public sector is inconsistent with the “basic pur-

poses of the First Amendment,” CPST Br. at 14,®

notwithstanding this Court’s frequent recognition

that even the “most fundamental maxims of our First

Amendment jurisprudence cannot reasonably be ap-

plied to speech by government employees.” Waters,

511 U.S. at 672 (plurality opinion); see also Garcetti,

547 U.S. at 423-24.

While Amici CPST is undoubtedly right that the

First Amendment’s “mistrust” of governmental power

insulates private citizens against various forms of

state-enforced orthodoxy, CPST Br. at 14 (quoting

Citizens United v. FEC, 558 U.S. 310, 340 (2010)), the

same does not hold true in the regulation of public

employment, including through collective bargaining

supported by agency fees. As this Court has observed,

if the government is to perform its responsibi’ ities

61 The same amici likewise miss the mark in claiming a

supposed historical basis for extending robust First Amendment

scrutiny to a government's regulation of the workplace speech

and conduct of its owr employees. CPST Br. at 16-18. On the

contrary, the notion tu.at public employees have any constitu-

tional rights at all is one of fairly recent vintage. See Resp Union

Br. at 2-3.

23

“effectively and economically,” it must have “wide

discretion and control over the management of its

personnel and internal affairs,” Arnett v. Kennedy,

416 U.S. 134, 168 (1974) (Powell, J., concurring), in-

cluding the prerogative to promote “discipline and

morale in the work place,” Connick v. Myers, 461 U.S.

138, 151 (1983); see also Kelley, 425 U.S. at 246 (plu-

rality opinion) (noting that restrictions on public em-

ployees that would be unconstitutional if applied to

the populace at large can be justified by the employ-

er’s “overall need for discipline, esprit de corps, and

uniformity”).

Likewise, the First Amendment surely protects

private citizens against government regulation that

distorts the “marketplace of ideas.” CPST Br. at 15.

But that is not the case for a government employer

that, in matters of workplace speech, may prefer “a

command economy” over “the free market of ideas.”

Waters, 511 U.S. at 673 (plurality opinion). And, of

course, such an employer may prefer to establish

working terms in cooperation with a single, duly-

selected bargaining representative, rather than uni-

laterally or through negotiations with individual em-

ployees. See Knight, 465 U.S. at 291-92.

When a government employer recognizes an ex-

clusive bargaining representative, that representa-

tive “assume[s] an official position in the operational

structure” of the workplace that affects all of the em-

ployees in the bargaining unit. Perry Educ. Ass'n, 460

U.S. at 49 n.9. Under the First Amendment princi-

ples applicable to public employment—and largely

ignored here by Petitioner and his supporting amici

here—it was “within reasonable limits” for the State

of Illinois to conclude that a statute authorizing

agency fees would facilitate effective bargaining and

promote workplace fairness. United Public Workers v.

24

Mitchell, 330 U.S. 75, 96 (1947); see also Abood, 431

U.S. at 224—25.

Ill. Petitioner and His Supporting Amici Fail to

Appreciate the Governmental Interests

Served by Robust Collective Bargaining

Supported by Agency Fees

Just as Petitioner and his supporting amici un-

derestimate the government’s legal authority to regu-

late its workforce through collective bargaining sup-

ported by agency fees, so too do they misconstrue the

significant—and even compelling—governmental in-

terests served by those arrangements.

This Court has already recognized the govern-

ment’s overriding interest in the _ exclusive-

representation model of bargaining to establish

workplace terms and conditions. See Knight, 465 U.S.

at 291 (noting that “the goal of reaching agreement

makes it imperative for an employer to have before it

only one collective view of its employees when negoti-

ating”); Abood, 431 U.S. at 224 (referencing the “con-

fusion and conflict” that could result from negotiating

with multiple groups of employees). This arrange-

ment could not accomplish the “important govern-

ment interests” for which it has been authorized if

the exclusive representative were not adequately

funded. Abood, 431 U.S. at 225. And, if employees

were free to share in the benefits of the representa-

tive’s efforts at no charge, adequate funding obviously

could be imperiled. Agency-fee arrangements are

therefore a reasonable governmental measure for ad-

dressing that “free-rider” concern and distributing

“fairly the cost of these activities among those who

benefit.” Jd. at 222.

But the government’s interest in pursuing robust

collective bargaining with an adequately funded ex-

25

clusive representative is not limited to these conven-

tional considerations. Many states strive to be model

employers and see collective bargaining as central to

that commitment. See, e.g., N.Y. Civ. Serv. Law § 200

(declaring a purpose of the state’s public-sector bar-

gaining law to be the promotion of “harmonious and

cooperative relationships between government and

its employees”). Several instructive examples show

that this commitment can, in turn, meaningfully im-

prove the provision of public services and avoid nega-

tive societal externalities that arise in its absence.

A. The government has a “special interest in ele-

vating the quality of education,” Norwood v. Harri-

son, 413 U.S. 455, 463 (1973), and evidence confirms

that this interest is materially advanced by the kinds

of collective-bargaining arrangements at issue here.

In particular, school districts with robust collective

bargaining and high levels of union density associat-

ed with agency fees are able to dismiss lower-

performing teachers while retaining higher perform-

ers, which improves overall teacher quality and stu-

dent performance.®? Such arrangements permit

school districts to carefully evaluate new teachers’

perfcrmances during probationary periods and weed

out ineffective teachers, while reaping the benefits of

retaining experienced and effective ones.* The corre-

sponding improvements in the overall qua’ity of the

teaching workforce lead, in turn, to substantial im-

82 Eunice 8. Han, The Myth of Unions’ Overprotection of

Bad Teachers: Evidence from the District-Teacher Matched Pan-

el Data on Teacher Turnover at 4-5 (Jan. 15. 2016),

http://papers.nber.org/conf_papers/f83489/f83489. pdf.

83 Jd. at 29-37, 42—46.

26

provement in measures of student performance such

as drop-out rates.

The government reaps similar benefits from ro-

bust collective bargaining in higher education, where

future generations of teachers are being trained. For

example, a 2013 study comparing unionized and non-

unionized graduate student employees in public uni-

versitiecs in terms of faculty-student relations, aca-

demic freedom, and pay found that that the unionized

cohorts reported higher levels of personal and profes-

sional support, and “had higher mean ratings on their

advisors accepting them as competent professionals,

serving as a role model to them, being someone they

wanted to become like, and being effective in his or

her role.”65

As sure as the government has an interest in se-

curing the improvements that robust collective bar-

gaining contributes to important public services like

education, it has a commensurate interest in avoiding

damage to those services caused by a breakdown of

collective bargaining. In the wake of Wisconsin’s de-

cision in 201i to restrict bargaining and eliminate

agency fees, teachers have received far lower com-

pensation, turnover rates have increased, and teacher

experience has dropped significantly.®° The state has

seen “reduced statewide student achievement on sci-

ence and math in large part because it caused many

experienced teachers to leave the profession and facil-

64 Td. at 37—42.

85 See Sean E. Rogers et al., Effects of Unionization on

Graduate Student Employees: Student Relations, Academic

Freedom, and Pay, 66 ILR Rev. 487, 501 (2013).

66 David Madland & Alex Rowell, Attacks on Public-Sector

Unions Harm States: How Act 10 Has Affected Education in

Wisconsin at 10-14 (Nov. 15, 2017), https://goo.gl/oM3ZVu.

27

itated the hiring of teachers away from more poorly

performing schools to better-performing schools.”6? A

state like Illinois can make the sensible and justifia-

ble choice not to go down that same path.

B. Beyond the immediate provision of public ser-

vices, the government also has an interest in conduct-

ing its operations in a way that does not create broad,

negative externalities for society at large.

For example, state and local governments have

an interest in refraining from conduct that reduces

economic mobility and opportunity in the populations

they serve. Cf. Kelo v. City of New London, 545 U.S.

469, 484 (2005) (noting that the promotion of econom-

ic opportunity and development is “a traditional and

long-accepted function of government”). Studies show

that children of union-member parents have im-

proved outcomes compared to children of comparable

non-union parents, especially when parents are low-

skilled.68 Not only do these children of union-member

parents go on to attain higher levels of education and

better health status, they earn higher incomes as

well,69

But the high levels of union density that agency

fees promote do not just benefit union members and

their families. Children who grow up in communities

87 Jd. at 3; see also id. at 14—17.

88 Richard Freeman et al., Bargaining for the American

Dream: What Unions Do for Mobility at 2, 12-13 (Sept. 2015)

(“Freeman, American Dream” herein), https://goo.gl/1JGnef;

Richard Freeman et al., How Does Declining Unionism Affect the

American Middle Class and Intergenerational Mobility?, NBER

Working Paper No. 21638 at 8-15 (Oct. 2015) (“Freeman, /nter-

generational Mobility” herein),

http://www.nber.org/papers/w21638.pdf.

69 Jd.

28

with higher union density also have higher average

incomes relative to their parents compared to chil-

dren who grow up in communities with lower union

density—even when they are not the children of un-

ion members themselves.7° Furthermore, the higher

wages that unionized workers generally command

have positive spillover effects on their communities

and the economy by driving economic growth, creat-

ing more taxable income, generating increased state

revenues, and reducing the demand for public assis-

tance. See Brief of Amici Social Scientists at 35, Frie-

drichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083 (2016).

Collective bargaining supported by agency fees

facilitates the government’s management of its own

workforce, enhances the provision of public services,

and creates positive externalities for society at large.

Under the First Amendment standard applicable to a

government’s ordering of its own affairs, Illinois’ de-

cision to authorize agency fees for its state employees

is more than justified. To hod otherwise would de-

prive it and other state and local governments of

their prerogative to conduct “experiments and pilot

programs—real-world laboratories in which ideas can

be assessed on the results they produce”—with the

“benefit of the give-and-take of the political process

and the flexibility of social experimentation that only

the elected branches can provide.” Neil Gorsuch, Lib-

erals ‘N Lawsuits, National Review Online (Feb. 7,

2005), https://goo.gl/9twgVs.

70 See Freeman, American Dream at 2 (“Indeed, union den-

sity is one of the strongest ; redictors of an area’s mobility”); see

also id, at 4-9; Freeman, Intergenerational Mobility at 15—20.

29

IV. Petitioner and His Supporting Amici Mis-

state Both the Risks Posed by Eliminating

Agency Fees and the Deference Due to the

Government in its Assessment of Those

Risks

Petitioner and his supporting amici gainsay the

risk to the government’s interest in collective bar-

gaining posed by the elimination of agency fees and

the corresponding introduction of the “free rider”

problem.’! The story goes that this Court should not

be concerned about the effect of a decision that con-

stitutionally enshrines a national “right to work” re-

quirement in the public sector because it would have

only a small economic impact on the unions or their

ability, which the government depends on, to operate

as reliable negotiating partners. Current members,

they say, will continue to pay dues—even though they

can obtain the benefits of the union’s representation

for free—simply because they view the union’s mis-

sion as “worthy of support.” CPST Br. at 21.

This is not the story that is being told elsewhere,

including by some of Petitioner’s supporting amici. A

™ Amici CPST contends that discovery in the Yohn v. Cali-

fornia Teachers Association \itigation shows that unions are un-

able to produce evidence of actual harm that would accompany a

ruling that declares agency fees unconstitutional. These claims

are misleading at best. CPST cherry-picks from the discovery

responses and also does not reveal that discovery in Yohn was at

an early stage when the case was stayed by the district court in

response to the grant of certiorari in this case. The record in

Yohn is far from complete and does not include the expert wit-

ness testimony that will substantiate concerns about the harm

to unions and their capacity to bargain effectively in the face of

losing agency fees and precipitous membership loss motivated

by free riding.

30

fundraising appeal by Amicus Freedom Foundation—

a group that conducted extensive campaigns to en-

courage union membership resignations in the wake

of this Court’s decision in Harris v. Quinn, 134 S. Ct.

2618 (2014)—explains the group’s plans to weaponize

a decision in Petitioner’s favor here:

[W]e are gearing up in a major way to launch

an extensive education and activation cam-

paign to take full advantage of a favorable

ruling in this historic case... .

We've been pointing toward this moment for

our entire existence ....

[W]e know the unions won't go away without

a fight. They won't go away even with a fight.

They won't go away until we drive the prover-

bial stake through their hearts and finish

them off for good.7

A fundraising appeal from the State Policy Net-

work—a national organization that supports state-

level “think tanks”’°—promises to use a decision in

Petitioner’s favor to “deliver a mortal blow” to public-

7 Freedom Foundation Fundraising Letter (Oct. 2017) (on

file with the author) (emphasis in original).

78 See State Policy Network, About State Policy Network,

https://spn.org/state-policy-network-about/. Several of the State

Policy Network’s “think tank” affiliates have submitted brie.. in

support of Petition>r here. See Brief of Amici Freedom Founda-

tion & Economists; Brief of Amici Pacific Legal Foundation et

al.; Brief of Amici Gregory J. Harnett et al.; Brief of Amici Jane

Ladley & Christopher Meier; Brief of Amicus James Madison

Institute; Brief of Amici Buckeye Institute et al.; Brief of Macki-

nac Center; see also State Policy Network, Directory,

https://spn.org/directory/.

31

sector unions.’4 In the service of that goal, the State

Policy Network has distributed a “State Workplace

Freedom Toolkit” to its affiliates across the country to

provide guidance on running campaigns to maximize

union membership losses.75

The theme that animates these highly coordinat-

ed and well financed campaigns is not “spur[ring] de-

bate about the value” of the union’s services, CPST

Br. at 22, but rather exploiting the very “free rider”

problem that Petitioner and so many of his support-

ing amici minimize in their submissions to this

Court. The campaigns actively urge members to reap

all of the benefits of the union’s representation with

out having to pay the cost. For example, the Freedom

Foundation sent this piece of literature to union

members in Washington State in the wake of this

Court’s ruling in Harris:

’¢ Andrea Germanos, “Internal Documents Reveal! Right-

Wing Plan to Strike Public Unions With ‘Mortal Blow,” Com-

mon Dreams (Aug. 30, 2017), https://goo.gl/bVEzVa.

'S Id.; see also State Policy Network, State Workplace Free-

dom Toolkit, https://gou.zV/5SuWRP.

39

Ves

These campaigns also tell union members that

the “free rider” problem is unavoidable and urge

them to resign before they become increasingly re-

sponsible for paying the representation costs of their

free-riding coworkers. One example of a Freedom

Foundation mailer from the same campaign presents

the following image of a sinking ship:

33

It does not matter if these efforts would ultimate-

ly succeed in delivering to public-sector unions the

“mortal blow” they promise. This Court has “consist-

ently given greater deference to government predic-

tions of harm used to justify restriction of employee

speech than to predictions of harm used to justify re-

strictions on the speech of the public at large.” Wa-

ters, 511 U.S. at 673 (plurality opinion). An employer

need not wait for “tangible, present interference” with

its operations; it may take action to prevent “specula-

tive” harms based on “reasonable predictions of dis-

ruption, even when the speech involved is on a mat-

ter of public concern.” Jd.

Accordingly, the maintenance of agency-fee ar-

rangements is more than justified—not only by the

concern that a “mortal blow” will actually occur and

thereby eliminate the union’s capacity to bargain—

but also by the need to avoid the disruption and dis-

harmony that could reasonably be expected to arise

in efforts to deliver that blow. See id; Abood, 431 U.S.

at 222-24.

This Court’s decision in Abood is, and should re-

main, good law. The government is fully justified in

ordering its own workplace affairs through collective

bargaining with an exclusive representative. And in

order to secure that arrangement, the government is

equally justified in authorizing and entering agency-

fee arrangements that ensure the financial stability

of its collective bargaining partner. Such a result is

fully consistent with the First Amendment, which

grants the government the “widest latitude” in con-

ducting its own internal affairs. Sampson v. Murray,

415 U.S. 61, 83 (1974). The Petitioner’s claim should

therefore be rejected and the judgment below af-

firmed.

34

CONCLUSION

The judgment of the court of appeals below

should be affirmed.

Respectfully submitted,

RISA L. LIEBERWITZ ALICE O’ BRIEN

General Counsel Counsel of Record

American Association JASON WALTA

of University Professors KRISTEN L. HOLLAR

Professor of Labor and National Education

Employment Law Association

School of Industrial and 1201 Sixteenth St., N.W.

Labor Relations Washington, D.C. 20036

Cornell University (202) 822-7035

361 Ives Hall aobrien@nea.org

Ithaca, N.Y. 14853

AARON NISENSON

Senior Counsel

NANCY LONG

Associate Counsel

American Association

of University Professors

1133 19th Street, N.W.

Suite 200

Washington, D.C. 20036

Counsel for Amici Curiae

January 19, 2018