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 a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE NEW YORK CITY MUNICIPAL

LABOR COMMITTEE AS AMICUS CURIAEIN

SUPPORT OF RESPONDENTS

HARRY GREENBERG ALAN M. KLINGER

GREENBERG BURZICHELLI Counsel of Record

GREENBERG P.C. DINA KOLKER

3000 MARCUS AVE.., DAVID J. KAHNE

LAKE Success, NY 11042 STROOCK & STROOCK

NEW YORK, NY & LAVAN LLP

(516) 570-4343 180 MAIDEN LANE

hgreenberg@gbglawoffice.com NEW YORK, NY 10038

(212) 806-5400

ROBIN ROACH aklinger@stroock.com

DISTRICT COUNCIL 37,

GENERAL COUNSEL

125 BARCLAY STREET

NEw YORK, NEW YORK 10007

(212) 815-1450

rroach@dc37.net

Counsel to Amicus Curiae

New York City Municipal Labor Committee

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIEG. .............0.ccsscsessssceesesseseees ii

INTEREST OF AMICUS CURIAE....................0000000 1

SUMMARY OF ARGUMENT. .................:ccceceeeeeeeeeeees 2

I anil ania densi ncaeni ce rececicenionemennientindindinasitie 10

I. STRONG GOVERNMENT

INTERESTS JUSTIFY AGENCY FEES............. 11

A. Whether To Permit Agency Fees

Constitutes A State Policy Choice............ 11

B. The Exclusive Representation

Designation Requires Agency Fees.......... 20

C. States Have A Legitimate Interest In

Avoiding The Free-Rider Problem ........... 23

Il. THERE IS A CLEAR DISTINCTION

BETWEEN BARGAINING WITH

GOVENRMENT ON EMPLOYMENT

MATTERS AND LOBBYING GOVERNMENT.... 29

A. Banning Agency Fees Would

Create Significant Contradiction

in First Amendment Jurisprudence......... 29

B. Abood Is “workable” As New York City’s

Public-Sector Unions Provide Services

(Funded By Agency Fees) That Are

Undeniably Non-Political And Non-

BN cdansicasrvassciteidbensonmanntnctiinnisctavit 34

Ge enscscndcecitendnssenssanseinnccietsensnestinewmeienetin 38

il

Page(s)

Cases

Abood v. Detroit Board of Education,

is I viccticinnthaticteanisisaterecsounvnasn passim

Ass'n of Surrogates & Sup. Ct.

Reporters v. States,

3 3 EEE rane 12, 13

Borough of Duryea v. Guarnieri,

Ee es a OF cincoetseenéeepremeneecenresasevevnnsen 30

Brooks v. Arthur,

685 F.3d 367 (4th Cir. 2012) ............cccccceeeeeeeeeeees 31

Ellis v. Bhd of Ry., Airline & S.S.

Clerks,

I oa naeeneesadeeinatien 23

Emporium Capwell Co. v. Western

Addition Cmty. Org.,

I ois tscvcensscvsesensssrecsneteensnscsebncnsente 14

Engquist v. Oregon Dep't of Agric.,

i OE II ois viscrcsicctphionensoveneevnisceenssepnenees 30

Fox v. Traverse City Area Pub. Sch. Bad.

Of Educ.,

605 F.3d 345 (6th Cir. 2010) ...........:cccccceeeseeneeeees 31

Garcetti v. Ceballos,

i Ds saseeieenaionbs 8, 29, 31

ili

Harris v. Quinn,

134 S. Ct. 2618 (2014) .......cccecceecessesseseseseeeees passim

Leahey v. Patrolmen’s Benevolent

Ass'n,

oe Ee eee 20

Lehnert v. Ferris Faculty Ass'n,

a I orc desthltisntestisenccrntiivevinsicninsein passim

McAuliffe v. Mayor of New Bedford,

29 N.E. 517 (Mass. 1892) ..............scssccssessesseseeees 28

Mills v. City of Evansville,

452 F.3d 646 (7th Cir. 2006) .............ccccccceeeeeeeeees 30

O'Connor v. Ortega,

ID videntncicontcnnniininbinntannavieiettitnate 30

Pickering v. Bd. of Educ.,

BO1 U.B. GES CIGSE) ........000c.sccccscvcccsoocees 8, 9, 32, 33

Railway Employees’ Dep't v. Hanson,

SE a I eenicvevivcctontnvlinctineitstemaenies 11,19

Statutes

Ee I iiciicsoccersccsecesmnisticctoncecinenenen 14

gt Tt 2 Rear eiee emeaence noe a ~ BW! 11

8 GF 8 gg ee 20

8 ae Fg ESR Nee 13

Bes Es GC SIO, Bas BEDE cncerecstcasisesceccstevnininints 14

N.Y. Civ. Serv. L. § SO0GTEMe)......cccccccscccrsscocscccssenesess 14

iv

N.Y. Civ. Serv. L. § 209-a(2)(c).........:ccccceeeereeeees 20, 28

SE ES Ce 10

Wisconsin’s Act 10 (2011) ............c.ccccccceeeeeeeereeees 26, 27

Other Authorities

Admin. Code of the City of New York,

Fourth Amendment § 12-308 .0.0..........ccccccceeeeeeees l

Admin. Code of the City of New York,

Fourth Amendment § 12-313 .00..0...........cccceeeeeeees 1

EEE ee passim

Cooper, David and Lawrence Mishel,

“The Erosion of Collective

Bargaining Has Widened the Gap

Between Productivity And Pay,”

Economic Policy Institute Briefing

re 24, 25

David, Joe C. and John H, Huston,

“Right-to-Work Laws and Free

Riding,” 31 Econ. Inquiry 52 (1999).............. 23, 25

Donovan, Ronald, Administering the

Taylor Law (ILR Press 1990) ..................... 12, 13

Hundley, Greg, “Who Joins Unions in

the Public Sector? The Effects of

Individual Characteristics and the

Law,” Journal of Labor Research 9,

RE 25

Vv

Kearney & Mareschal, Labor Relations

in the Public Sector 30—32 (5th ed.

Economic Policy Institute Briefing

Paper #411, Nov. 2, 2016 ............c0000000

Moore, William, “The Determinant and

Effects of Right-To-Work Laws: A

Review of the Recent Literature,”

Journal of Labor Research, vol. XIX,

NR, I cisidisinciicenishentaladentietdnlihaibibadions

Manzo IV, Frank, “Union Membership

Declined in ‘Right-to-Work’ States

and Increased in Collective-

Bargaining States Last Year,”

Illinois Economic Policy Institute,

SE IRE TRIE Pecccencveccccnensvstasccannnescssnncoveees

N.Y. Governor's Comm. On Public Emp.

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

Olson, Mancur, “The Logic of Collective

Action: Public Goods and the Theory

of Groups.” Cambridge, MA: Harvard

University Press (1965)..................000-+

N.Y. Governor’s Committee on Public

Employee Relations, Fina/ Report

IED scevcscanictscosatsineracdnietenismninasmavnirete

vi

N.Y. Div. of Budget, Budget Report for

S. 6835, at 3, reprinted in Bill Jacket

ON Ra aS REE SR Oe 12,13

Samuels, Robert, “Walker's Anti- Union

Law Has Labor Reeling In

Wisconsin,” Washington Post, (Feb.

INTEREST OF AMICUS CURIAP

The issues presented raise significant concern

to New York City’s public-sector unions and their

members. The New York City Municipal Labor

Committee (“MLC”) is an association of municipal

labor organizations representing some 390,000 active

workers dedicated to collectively addressing concerns

common to its member unions and advocating on

issues of labor relations relevant to City workers.

The MLC was created pursuant to a Memorandum of

Understanding dated March 31, 1966, signed by

representatives of New York City and designated

employee organizations and codified in Sections 12-

303 and 12-313 of the Administrative Code of the

City of New York. The workers represented by the

MLC, comprising both uniformed and civilian

employees, serve the public welfare, health and

safety on a daily basis.

Each of the MLC member unions offers a “fair

share” fee option for non-members to defray the cost

of negotiating, administering and implementing the

terms of its respective collective bargaining

agreements, handling grievances and providing other

union services. Each of these unions, as exclusive

bargaining agent, is compelled under state law to

bargain and otherwise act equally on behalf of the

interests of all employees in its bargaining unit -

members and non-members alike. The blanket

' No counsel for a party has authored this brief in whole or in

part, and no person or entity other than amicus or its counsel

made any monetary contribution intended to fund the

preparation or submission of this brief. A consent letter on

behalf of all parties is filed with this Court.

2

invalidation of “fair share” fees, contrary to

Petitioner's unsupported assertions, would

materially impair the MLC unions’ abilities to

represent New York City public-sector workers in

negotiations for better terms of employment and

would threaten the carefully balanced and well-

established labor relations framework cultivated in

the nearly five decades since the MLC was

established, a history that includes nearly 40

uninterrupted years of reliance on the “agency fee”

option.

SUMMARY OF ARGUMENT

For the second time in the Court’s last four

terms, a petitioner seeks to overrule Abood v. Detroit

Board of Education, 431 U.S. 209 (1977). This

persistent attempt to overrule the 40-year precedent

reflects not a sudden “special justification” for

overturning this entrenched precedent— as required

for reversal under basic principles of stare decisis—

but a fervent politically motivated desire,

emboldened by the ideological winds of the moment,

to drive a stake through the heart of public-sector

unions. Petitioner here sheds the pretense of an

incremental chipping away at the Abood precedent,

in favor of a frontal assault on the role of public”

sector unions altogether as the state-created

mechanism for managing the relationship between

public employers and the collective interests of public

employees.

For decades, Americans “have debated the

pros and cons of right-to-work laws and fair-share

requirements.” Harris v. Quinn, 134 8S. Ct. 2618,

2658 (2014). Indeed, in recent years many states

3

have enacted right-to-work legislation based on their

local needs and values. Today, 28 states have “right-

to-work” laws. Yet, Petitioner now asks this Court to

end that public discussion and impose a right-to-

work regime for all public-sector employees in all

states. The Court has thus far resisted the invitation

to deprive every state and local government, in the

management of their employees and programs, of an

important tool, fair-share fees, that is necessary and

appropriate to make collective bargaining work. The

Court should continue to resist this invitation.

Unions that give voice to public employees and the

working middle-class in New York City and

throughout the country depend on agency fees to

effectively undertake their jobs within the labor

relations structures chosen by each state to manage

its public workforces.

Despite recent, persistent attempts to erode

Abood, the precedent has repeatedly been affirmed.

The Court has for decades determined that a union

may, consistent with the First Amendment, require

public-sector employees (like private sector ones) to

pay their fair share of the cost the union (and its

members) incurs in negotiating (and administering)

collective bargaining agreements on their behalf for

better terms of employment.

The importance of the doctrine of stare decisis

operates at its summit in cases where a precedent

has created strong reliance interests. There are few

precedents in this Court’s jurisprudence that have

engendered as much reliance as Abood.

Nowhere are the reliance interests more

pronounced than in New York City. New York

4

framed an important component of its labor-

management relations structure in express reliance

on Abood. Authorization to negotiate for agency fees

was recommended by legislative and research

committees in the turbulent early years of the Taylor

Law (New York State’s public-sector labor law),

which saw considerable labor unrest in the late

1960’s and early 1970's. Only after additional

refinements to the law and ultimate inclusion of an

agency fee provision — relying on the Abood decision

- did matters stabilize.

The reliance continues today. As the Court

recognized in Harris, “governments and unions have

entered into thousands of contracts involving

millions of employees in reliance on Abvod.” 134 8S.

Ct. at 2652. (Kagan, J. dissenting).

In New York City alone, 97 public-sector

unions represent some 390,000 active City workers

(and 120,000 retirees) working under 144 contracts

that have fair share arrangements and rely upon

these fees in funding collective bargaining and

related non-political union activities. They have

done so for decades.

The Abood precedent stood, in part, on the

recognition of the necessity and complexity of a well-

functioning public-sector labor relations system, and

(like in the private sector) the integral role of the

union as an exclusive bargaining representative to

that system:

The designation of a union as exclusive

representatives carries with it great

responsibilities. The tasks’ of

negotiating and administering a

collective-bargaining agreement and

representing the interests of employees

in settling disputes and processing

grievances are continuing and difficult

ones. They often entail expenditure of

much time and money. The services of

lawyers, expert negotiators, economists,

and a research staff, as well as general

administrative personnel, may be

required.

Abood, 431 U.S. at 221.

Public-sector unions in New York must serve

all represented employees. Despite Petitioner’s bare

assertion that the costs of the responsibility pales in

comparison to the “powers and benefits that come

with exclusive representative authority,” Pet. Br. 47,

serving all employees costs significant time and

money. It means hiring professional staff and

investing in resources that provide representation

and services to all bargaining unit members, not just

union members. Indeed, since the Abood precedent,

the increasing complexity of public-sector labor

relations -— negotiating healthcare benefits,

navigating changing and increasingly complex

legislation and practices relating to pensions, among

other complicating developments, have made the

task of representing the interests of employees

exceedingly more difficult and costly.

The agency or “fair share” fee is justified, in

large part, because New York, like many other

states, compels its unions by statute to promote and

protect the interests of its members and non-

6

members alike in negotiating and administering

collective bargaining agreements. While the duty of

fair representation allows a spectrum of reasonable

conduct, that duty does not permit treating agency

fee payers differently than members with regard to

contract negotiation and administration. For MLC

unions, a compulsory agency fee fairly distributes the

cost of bargaining among those who benefit and

counteracts the inescapable economic incentive that

public-sector employees (like most _ rational

individuals) would otherwise have to “free-ride” on

the union’s efforts for all. Petitioner's and amici’s

unsupported attempt to assume away the “free-rider”

problem is belied by irrefutable principles of

economics and human behavior, as well as our

current national experience in “right-to-work” states.

The simple truth is that someone must contribute to

permit the union to perform its job and if all who

benefit cannot be required to contribute, union

members would be forced to carry the weight on their

backs, subsidizing those who free-ride.

Rather than fairly treat the clear legitimate

governmental interests, Petitioner focuses on the

purported infringement of First Amendment rights

that agency-fees impose, ascribing a nefarious

“coercive” element to their payment. In reality, the

fee is no more “coercive” than a taxpayer's obligation

to pay taxes. Agency fees, like taxes, are not a

“political” statement, but a means of ensuring that

the collective bargaining system as a whole — which,

itself, is composed of individually and democratically

elected union representatives — functions properly. A

citizen pays taxes to ensure the provision of

government services; an agency fee payer pays fees

7

to ensure his union can properly operate. Just like

any taxpayer who disagrees with government

policies, even with this fair share fee, nothing

precludes a public-sector employee in New York City,

like any other citizen, from expressing his or her

political viewpoint or engaging in political activities

with regard to the union or more broadly in the local,

state and federal political arenas. Nothing prevents

an agency fee payer from seeking to influence union

policies through organizing other agency fee payers

and exerting political pressure or even seeking

decertification. Indeed, a union would be prohibited

from taking any retaliatory action against either a

member or agency fee payer wishing to so act. The

union’s exclusive ability to speak is narrowly limited

to direct negotiation with the employer on terms and

conditions of employment. It has no authority to

silence its detractors internally or externally. The

union and the individual member are free to lobby

the legislature as any other citizen. Moreover,

unlike private organizations, unions are obliged to

have internal democratic processes. Thus, any First

Amendment infringement, if such infringement

exists at all, is minimal.

Ultimately, Petitioner not only betrays fidelity

to this Court’s decisions, which have long recognized

the importance of public-sector unions in fostering

peaceful labor-management relations, he threatens

to significantly undermine unions’ efforts within New

York City’s legislatively created collective bargaining

system to protect middle class workers.

This case presents wide-ranging implications

for the future of labor relations, union funding and

collective bargaining. Petitioner’s stance would

8

summarily and instantaneously eliminate the 40-

year old distinction between union fees utilized for

collective bargaining, contract administration and

grievance adjustment, and those used for political or

ideological activities established in Abood and

refined in later cases.

Yet, even more broadly, Petitioner threatens

to upend First Amendment jurisprudence in the

public-sector altogether. Case law draws a clear

distinction between political speech and speech on

traditional employment-related matters in the

context of public employment. £.g., Pickering v. Bd.

of Educ., 391 U.S. 563 (1968); Garcetti v. Ceballos,

547 U.S. 410 (2006).

If, as Petitioner argues, all speech related to a

union’s collective bargaining negotiation —

quintessentially “terms and_ conditions” of

employment — is deemed “lobbying” because such

negotiations may ultimately impact the public fisc,

virtually all speech would enjoy full constitutional

protection in the public workplace. If there “is no

distinction between bargaining with the government

and lobbying the government,” as Petitioner asserts

Pet. Br. 10, any workplace complaint or demand

would be considered political speech. The types of

individual employee grievances, which under well-

worn Supreme Court precedent lack First

Amendment protection, would take on a

constitutional dimension. There is simply no

principled distinction in the Constitutional analysis

between the content of one voice seeking to speak on

employment-related matters, and the collective

voices of a union seeking to speak on precisely the

same subjects.

9

The point, contrary to Petitioner’s view, is not

whether the Pickering test applies neatly in the

agency fee context; it is that accepting Petitioner's

view regarding what constitutes political speech or

“lobbying” as those terms have been understood in

this Court’s First Amendment parlance, would

obliterate the carefully drawn distinction between

the government as employer and as _ sovereign.

Petitioner's position endangers not just ongoing

labor-management relations in New York City and

elsewhere, but the continuing coherence of First

Amendment jurisprudence in the government

employer context as well.

One final point merits brief mention.

Petitioner and amici make much of the purported

practical difficulty in administering the distinction,

first articulated in Lehnert v. Ferris Faculty Ass’n,

500 U.S. 507 (1991), between chargeable activities —

ie., those germane to collective-bargaining, contract

administration and grievance procedures — and non-

chargeable political activities. As in Illinois, New

York City’s unions calculate the fair-share fee on the

basis of detailed accounting that identifies a union’s

expenditures and excludes all expenses not

chargeable. That accounting is audited by an

independent certified public accountant, and then

reported to represented employees in a “Hudsor!

notice, and employees are entitled to bring a

challenge to the amount in arbitration. A new

Hudson notice with updated calculations is prepared

each year. The procedure has been seamlessly

ingrained in the dues collection process for years.

The notion that the Abood precedent is too difficult to

administer is a red herring, one proven immaterial

10

by New York City’s experience. There has been no

showing here that Abood cannot be administered in

Illinois, let alone the entire nation.

Even if the line drawn between permissible

assessments for collective bargaining activities and

prohibited assessments for ideological activities

appears “somewhat hazier” in the public-sector,

Lehnert, 500 U.S. at 521, in the vast majority of

instances chargeable activities may be readily

distinguished from non-chargeable ones. The many

day-to-day services our unions regularly provide are

not only apolitical, but often mundane and

ministerial, though no less critical for our members.

In any event, the Lehnert and Abood required

determination of what constitutes political versus

non-political expenditure is precisely the type of

jurisprudential test that arbitrators and courts are

routinely called upon to decide.

ARGUMENT

Consistent with the Railway Labor Act cases

before it and, indeed, constitutional jurisprudence

more generally, the Abood Court approached the

issue from the perspective of whether public

employee unions should have a right analogous to

that of private sector unions and framed its analysis

as balancing (1) the legitimate interests of

government in securing labor peace and avoiding the

free-rider problem with (2) the First Amendment free

speech rights of individuals.

Here, Petitioner has attempted to rig the scale

unfairly with a foisted strict scrutiny analysis and

conclusory political rhetoric in the absence of actual

11

material record facts. Self-serving declarations that

exclusive representation alone is sufficient to carry

out the responsibilities of a public-sector union

within a state’s chosen construct for engaging its

employees or that a union’s obligation to treat

members and non-members alike would be

unaffected by the wholesale elimination of agency

fees, provide an insufficient basis on which to

eliminate agency fees across the country.

I. STRONG GOVERNMENT

INTERESTS JUSTIFY AGENCY FEES

A. Whether To Permit Agency Fees

Constitutes A State Policy Choice

Public-sector bargaining regimes are creations

of state law and reflect a state’s considered judgment

about how to organize and manage its public

employee workforce. The National Labor Relations

Act leaves regulation of state and local government

labor relations to the states. See 29 U.S.C. § 152(2).

The Court in Abood correctly determined that

any arguable interference caused by agency fees “is

constitutionally justified by the legislative

assessment of the important contribution of the

union shop to the system of labor relations.” 431

U.S. at 222. While not “judgling] the wisdom” of the

decision, the Court recognized it was for Michigan to

determine whether labor stability would be best

served by a system of exclusive representation and

the permissive use of an agency shop fee for public-

sector unions. Id. at 229; see also Railway

Employees’ Dep't v. Hanson, 351 U.S. 225, 234 (1956)

{the “ingredients of industrial peace and stabilized

12

labor-management relations are numerous and

complex” and the decision of whether the “union shop

lis] a stabilizing force...rests with the policy makers,

not with the judiciary”).

In New York, too, agency fees are allowed by

statute to be part of public-sector collective

bargaining agreements. The legislation authorizing

these arrangements specifically relied on Abood.

N.Y. Div. of Budget, Budget Report for S. 6835, at 3,

reprinted in Bill Jacket for ch. 677 (1977) (discussing

Abood. The carefully calibrated inclusion of agency

fees in New York’s labor relations structure should

not be dismissed. While strikes and other work

disruptions by public-sector employees are now

exceedingly rare, they were common when New York

(and many other states) first adopted and refined

public-sector labor relations laws. See Donovan,,

Administering the Taylor Law (ILR Press 1990); see

also N.Y. Governor's Committee on Public Employee

Relations, Fina/ Report (1966) (there is “widespread

realization that protection of the public from strikes

in...public services requires the designation of other

ways and means for dealing with claims of public

employees for equitable treatment”); Assn of

Surrogates & Sup. Ct. Reporters v. States, 78 N.Y .2d

143, 152-53 (1991) (in approving the Taylor Law the

Governor noted the need for the legislation had been

“unquestionably demonstrated over the years...to

resolve paralyzing strikes and threats of strikes by

public employees”).

Labor unrest continued in the early years of

the Taylor Law as government employers and unions

adjusted to their new roles and the law was refined,

first in 1969 (adding unfair labor practices and

13

additional strike deterrents) and again in 1977

(authorizing agency fees). Donavan, supra, at 104-

31. New York City, operating under a state

permitted local analogue to the Taylor Law, suffered

some of the most crippling continuing labor strife.

Id. at 204. Indeed, in 1969, as part of a response to

legislative inquiry regarding public-sector labor

relations in New York City, Mayor Lindsay urged

authorization of agency fee arrangements. /d. at

126. The State Public Employment Relations Board

agreed and sought to have the authorization

extended state-wide. /d. These views coalesced with

the recommendations of two other study committees

in 1969 and again in 1973. /d@. at 193. Ultimately,

shortly after Abood, New York amended the Taylor

Law (with New York City following suit) to permit

agency fees. /d.

The designation of a single bargaining

representative, coupled with the agency fee, helped

to stabilize labor-management relations and avoid

the confusion that would result from attempting to

enforce multiple agreements specifying different

terms and conditions of employment. Abood, 431

U.S. at 221 (explaining the benefits of eliminating

this confusion). These changes helped ensure the

uninterrupted provision of governmental services.

See N.Y. Civ. Serv. L. § 200. And they gave public-

sector workers a greater voice in determining the

terms of their employment, which, too, acted to

minimize labor strife. See N.Y. Governor's Comm.

On Public Emp. Relations, Fina/ Report at 42, 54

(1966) (inability of public employees to unionize and

have “a greater voice” in determining the terms of

their employment contributed to the use of strikes).

14

The basic system has remained undisturbed for

decades and New York has relied upon agency fees

ever since.

Petitioner now wishes to disrupt New York’s

(and other states’) chosen system of managing labor

relations. Petitioner and his political allies wish to

avoid paying a single cent for collective bargaining

from which all represented employees gain

substantial benefit because of unspecified objections

to the positions taken by teachers’ unions in Illinois

or unionization broadly. They are certainly entitled

to have that opinion, but they should not be

permitted to force that view on all state

governments.

Illinois and New York, like many other states,

have decided to manage their public-sector workforce

by allowing workers to select, on a majority basis, a

union as their collective bargaining representative.

See N.Y. Civ. Serv. L. § 204; Emporium Capwell Co.

v. Western Addition Cmty. Org., 420 U.S. 50, 62

(1975). The selected union, by statute, receives the

exclusive right to negotiate terms and conditions of

employment for the covered employees and becomes

required to represent all members of the bargaining

unit fairly. See e.g., N.Y. Civ. Serv. L. § 208(3)(a); 5

I.L.C.S. 315/6(d). In turn, unit members who choose

to not become union members must pay a service fee

that is relevant only to the nonpolitical aspects of

union representation. Illinois and New York have

determined through their policies that the exclusive

representation model best promotes sound workforce

management and productivity. The “fair share” fee

acts as a crucial component of that model.

15

Imagine New York City negotiating with the

approximately 390,000 public employees separately

with regard to terms and conditions of employment

or, worse yet, unilaterally imposing terms and

reaping the unrest of pre-Abood times. Such

approach would be (and has been historically)

untenable. New York State, among others, opted for

a different approach, harmonizing the rights of

public-sector workers with the needs of government

employers and the public welfare. The services a

union provides and the role it plays benefit not only

the workers but extend to the labor-management

framework as a whole.

Petitioner's objections to that framework are

largely premised upon personal and political beliefs

that unions are an ill rather than a good. See Pet.

Br. 50 (asserting unionization, at its core, is

improper “collectivization for a political purpose” in

violation of the First Amendment). While Petitioner

may believe that, government works by the majority

setting policies applicable to all, not just those who

favor them. Here, state government has determined

that organizing public employees into unions within

the structures of a labor law is beneficial to all.

Petitioner has the same rights with regard to this

policy as any other: he may voice his objection, he

may vote his state government out of office in favor

of those who support a right-to-work agenda, but he

may not decline to pay the small service fee that is a

part of the state’s labor policy.

The distorting effect of these anti-union views

on the legal analysis is amplified by Petitioner's

(perhaps purposeful) conflation of the state as a

sovereign, entitled to make policy choices as to how

16

public employers and public employees are to

interact for the good of the state, and the specific

bargaining interests of any particular public

employer at the bargaining table. See Pet Br. 7

(discussing what Petitioner views as reasonable and

beneficial bargaining demands proposed by Illinois

and AFSCME Council 31’s resistance to those

bargaining demands).?

Petitioner is correct to caution that the Court

not confuse the interests of “partisan organizations

with government interests,” Pet. Br. 36, but it is

Petitioner that makes this mistake by substituting

the union’s interests for those of the state. It is

equally as important to not confuse a state’s interest

in its labor relations policy with the specific

bargaining position or interests of any one public

employer at the bargaining table. The merits or lack

thereof of any bargaining position have no bearing on

the question presented here: whether a state’s choice

of “recipe” for labor peace within its borders can

lawfully include authorizing agency fees. Petitioner

uses this improper focus on the bargaining interests

2 Though purposefully avoided by Petitioner, the root of

Governor Rauner’s purported bargaining dilemma is not Abood.

[llinois has chosen a system of labor relations and its Governor,

like other public employers in the state, must work within that

system. Nothing in Abood (or any other case) prohibits Illinois

from solving its own “problems,” as Petitioner sees them, by

adopting right-to-work legislation. The issue in Lllinois is not

that any Supreme Court precedent has abrogated Petitioner's

rights; it is that a sufficient number of Illinois residents do not

agree with Petitioner's political views to enact right-to-work

legislation. As a result, Petitioner seeks is to have the Supreme

Court perform an end-run around Illinois’ and every other state

legislature under the pretense of protecting public employees.

17

of individual public employers to the exclusion of the

larger interest of the state to artificially narrow the

Court’s focus when weighing interests.

While it is Petitioner’s view that government

employers would have greater flexibility to operate

when not bound by the strictures of union contracts,

free from the obligation to bargain collectively and

able to set terms and conditions unilaterally, Pet Br.

54-55, those value judgments cannot limit the ability

of states to set priorities and adopt policies.

Petitioner asserts that there can be no state

interest in bargaining with a union and certainly no

interest in bargaining with a strong and competent

union, even concluding that “no rational actor wants

to deal with a powerful negotiating opponent.” Pet.

Br. 60-61. This observation, however, conflates the

adversarial self-interest of a public employer at the

bargaining table with the state’s interest as a

sovereign in creating a system with checks and

balances by which employees are given a voice in

setting their own terms and conditions of

employment. In New York and elsewhere, these

policy choices are informed by a history of labor

strife, strikes and service interruptions resulting

from the type of top-down imposition of terms of

employment Petitioner praises.

Petitioner's approach to labor policy is

summed up by his suggestion that public employers

“can ensure employee effectiveness and efficiency

through the less drastic means of discharging staff

members whose work is inadequate.” Pet. Br. 55-56

(internal quotations and _ citations omitted).

According to Petitioner, “government employers can

18

deal with any workplace issues simply by enforcing

employee codes of conduct.” Jd By this logic, we

could eliminate defense attorneys and _ courts,

allowing prosecutors to unilaterally enforce the law.

Petitioner finds it “absurd” for states to feel

compelled to protect their operations from the very

public officials that manage them. Pet. Br. 55.

However, many aspects of our democratic society

functions through similar systems of adversarial

contest and checks and balances.

Far from absurd, many state governments

have made judgements finding that the sometimes

adversarial and sometimes collaborative process of

bargaining with two equal participants is most likely

to result in terms and conditions of employment that

balance both the interest of government as an

employer and the interests of employees without risk

of interrupting services to the public. The process

also recognizes that hundreds of thousands of public

employees (in New York City alone) are not merely

resources for the government to use up in its

provision of services, they are also its citizens.

Petitioner pays lip service to the ability of

government to “control” its employment terms, Pet.

Br. 58, except that he demands that all governments

all over the country exclude from such terms a strong

union-based labor relations policy in favor of

Petitioner’s desired unilateral policy. States like

New York “control” the terms and conditions of their

public employees by establishing a legal framework

for the setting of such terms and conditions. It is

this fundamental interest of the state to set its own

labor policy which is to be balanced against the

19

minimal intrusion of requiring a service fee be paid

within that statutory structure.

Of course, New York’s and Illinois’ system of

collective bargaining is not universal. Certain states

have adopted similar but variant systems for

conducting labor relations. Kearney & Mareschal,

Labor Relations in the Public Sector 30—32 (5th ed.

2014) (there is “one set of [labor] laws for federal

workers and 50 sets for the states...”). Others do not

require collective bargaining or authorize agency fees

at all. States like Wisconsin and Michigan are free

to enact “right-to-work” legislation (though both

states permit agency fees for certain public safety

employees). Abood does not issue a command;

rather, it provides a choice, leaving to states the

right to devise their own systems in light of their

history. Voters in each state ultimately have the

final say over changes or amendments to labor

policy. Abood, 431 U.S. at 224. In New York, the

voters have decided and their conclusion on the

proper system of labor relations for their public-

sector workforce should not be judicially invalidated.

See Hanson, 351 U.S. at 233-34 (because “[w]hat

would be needful one decade might be anathema the

next,” the decision whether to incorporate a closed

shop in labor relations “rests with the policy makers,

not with the judiciary”).

Moreover, union activity and subjects of

bargaining vary greatly among situations and among

states. Disciplinary procedures, for instance, are

generally mandatory or permissible subjects of

bargaining in some states (New York for one) and not

in others. New Mexico, for example, which otherwise

permits public-sector collective bargaining and

20

agency fee arrangements, sets. disciplinary

procedures by state agency rule, not collective

bargaining. See N.M. Stat. Ann. § 10-9-13 (West)

(requiring the state Personnel Office to promulgate

rules for dismissal and demotion procedures for

public employees). The wisdom of the inclusions and

exclusions is not the issue; rather, the point is that

these myriad formulations underscore the vast

differences among jurisdictions in tailoring labor

relation systems to suit their local needs.

B. The Exclusive Representation

Designation Requires Agency Fees

In the Lenhert decision, Justice Scalia

recognized that the state interest that justifies

agency fees arises from a union’s statutory duties.

Where “the state imposes upon the union a duty to

delivery services, it may permit the union to demand

reimbursement for them; or looked at from the other

end, when the state creates in the nonmembers a

legal entitlement from the union, it may compel them

to pay the cost.” Lenhert, 500 U.S. at 557.

In New York, like many other states, the

Taylor Law explicitly provides for a compulsory duty

of fair representation. N.Y. Civ. Serv. L. 209-a(2)(c).

All unions are required to treat all unit members

equally with respect to the terms and conditions of

employment. Leahey v. Patrolmen’s Benevolent

Ass'n, 47 OCB 22 (BCB 1991) (union breaches its

duty of fair representation “if it fails to act fairly,

impartially and non-arbitrarily in negotiating,

administering and enforcing collective bargaining

agreements”). Thus, contrary to Petitioner's

assertion, while “unions have wide latitude to agree

21

to contract terms that favor some employees and

disadvantage others,” Pet. Br. 45, such distinction

generally cannot be based upon membership.

Petitioner summarily insists that agency-fees

are unnecessary for public-sector unions, because

state-conferred exclusivity is “extraordinarily

valuable.” Pet. Br. 38. Though no quantifiable dollar

value is (or can be) ascribed to the so-called “valuable

powers,” Petitioner dismisses one of the long-held

justifications for requiring agency-fees and assumes

that in the absence of the requirement, the “privilege

of exclusive representation,” Pet. Br. 44, in itself, will

pay for the costs of representing, in the case of New

York City unions, hundreds of thousands of public-

sector employees.

Exclusive representation does not pay a

union’s bills. To give the Court a sense of the costs

involved, just one of the City’s large unions budgets

some $2.5 million annually for its legal department,

supporting bargaining, arbitrations, and statutory

hearings. The costs for all unions would be millions

of dollars more. The “valuable powers” conferred by

exclusive representation, without fair funding by

agency-fees, are wholly insufficient to shoulder this

burden.

At the same time Petitioner seeks to ascribe a

monetary value to exclusivity, Petitioner also

attempts to downplay the true financial burden a

union bears, stating that “any additional cost of

representing nonmembers in addition to member is

minor.” Pet. Br. 45. As an example, Petitioner

dismisses the burden of representing nonmembers in

grievances as “hypocritical,” because unions

22

contractually require that a union and not individual

employees can pursue a grievance. Pet. Br. 46.

The argument may have political or aesthetic

appeal to Petitioner and others of a _ similar

viewpoint, but it subverts reality and fails to address

the legal issue. A union is not an interloping entity

distinct from the public employees it represents. It is

its members. Thus, while some union expenses may

not materially change in the absolute sense — for

example, the cost of negotiating wage increases for

100 unit members rather than 80 members — that

cost is borne by a smaller number of individuals,

forcing union members to subsidize benefits for

Petitioner and other former agency fee payers. This

economic reality results in union members receiving

a wage increase that, net of contributions, is actually

lower than that of nonmembers who, under

Petitioner's desired construct, receive it without

making any contribution at all. This burdens union

members and, thus, unions. Basic economics

precepts dictate that this would be an unsustainable

system.

Similarly, the cost of other areas of union

representation directly increases in relation to the

number of represented employees that utilize them.

Many MLC unions integrate disciplinary charges

into their contractual grievance process;

consequently, union processing of grievances

necessarily includes the defense of disciplinary

charges. Other MLC unions employ outside counsel

to provide such services to employees as well as

negotiate for and administer informal workplace

procedures for minor infractions. Yet other MLC

unions provide a team of attorneys through their

23

affiliation with a state labor organization for the

defense of disciplinary charges. And all of these

services, and far more discussed infra at Point II.B.,

are available to and utilized by agency fee payers,

and cost substantial sums of money.

C. States Have A Legitimate Interest In

Avoiding The Free-Rider Problem

This Court has continuously recognized a

primary purpose of the agency shop fee is to

counteract free-riding. See Abood, 431 U.S. at 222;

Lehnert, 500 U.S. at 537-38; see also, Ellis v. Bhd of

Ry., Airline & S.S. Clerks, 488 U.S. 435, 452 (1984)

(allowing free-riding corrodes workplace harmony

and cooperation by “stirring up resentment” because

some employees can “enjoy[] benefits earned through

the other employees’ time and money”).

The rationale for the Court's repeated

acceptance is self-evident: a rational economic

individual would seek to enjoy the collective benefits

a union provides without paying dues if he or she can

avoid them.® If agency fees are rendered

unenforceable for public-sector employees,

unassailable tenets of economics compel the

conclusion that union membership would

dramatically decline. Harris, 134 S. Ct. 2656

(Kagan, J. dissenting) (recognizing the duty of fair

representation “creates a collective action problem of

8 See Olson, Mancur, “The Logic of Collective Action: Public

Goods and the Theory of Groups.” Cambridge, MA: Harvard

University Press (1965); see also David, Joe C. and John H,

Huston, “Right-to-Work Laws and Free Riding,” 31 Econ.

Inquiry 52 passim (1993) (finding the free-rider problem higher

in right-to-work states).

24

far greater magnitude than in the typical interest

group, because the union cannot give any special

advantages to its own backers”). The resulting

decline in membership would weaken unions, place

pressure on a union’s ability to comply with the duty

of fair representation, sow divisiveness, undermine

the effectiveness of the collective bargaining process

and likely push employee compensation below

market levels. See Cooper, David and Lawrence

Mishel, “The Erosion of Collective Bargaining Has

Widened the Gap Between Productivity And Pay,”

Economic Policy Institute Briefing Paper, Jan. 6,

2015 (linking the widening income and wage

disparity to the erosion of collective bargaining

rights).

Statistics and studies in the field prove the

point. Right-to-work legislation significantly

increases the level of free riding in public-sector

unions. In “right-to-work” states during the years

2000 to 2013, free-riders represented 20.3% of public

employee bargaining units. See Keefe, J., “On

Friedrichs vv. California Teachers Association,”

Economic Policy Institute Briefing Paper #411, Nov.

2, 2015 (“Keefe 2015”). Public-sector union density‘

in those areas registered at 17.4%. Jd. By contrast,

in states allowing agency shop agreements, only 6.8%

of those in bargaining units chose not to join the

union, with union density at a far more robust 49.6%.

Td. Other data suggests that free-riders may actually

represent as much as 35-40% of employees covered

by a collective bargaining agreement when agency

4 Union “density” reflects the percentage of public sector

employees represented by a union.

25

fees are banned. /d. Thus, right-to-work laws

significantly reduce the likelihood of union

representation of public-sector employees as a whole.

Td®

More recent studies have similar results.

From 2015-2016, for example, union membership in

right-to-work states fell by over 293,000 members.

Union membership declined in 20 of the 26 states

with right-to-work laws. Conversely, in fair-share

collective bargaining’ states, overall union

membership increased by over 56,000 members and

declined in only 9 of the 25 agency fee states

(including the District of Columbia).®

These empirical trends are beyond dispute. To

buttress his contention that the “free rider” effect is

minime! in right-to-work states, Petitioner footnotes

a statistic from 2008 reflecting the percentage of

union membership in right-to-work states with

exclusive representation versus right-to-work states

that ban exclusive representation. Pet. Br. 41, fn. 20.

According to Petitioner, in Nevada, Iowa, Florida and

Nebraska union membership rates were 37.9%,

31.6%, 27.9%, and 27.2%, respectively, while in

Georgia, Virginia, Mississippi, North Carolina and

5 Citing Hundley, Greg, “Who Joins Unions in the Public

Sector? The Effects of Individual Characteristics and the Law,”

Journal of Labor Research 9, 301-23 (1988) and Moore, William,

“The Determinant and Effects of Right-To-Work Laws: A

Review of the Recent Literature,” Journal of Labor Research,

vol. XIX, no. 3 (1998).

® Manzo IV, Frank, “Union Membership Declined in ‘Right-to-

Work’ States and Increased in Collective-Bargaining States

Last Year,” Illinois Economic Policy Institute, May 10, 2017.

26

South Carolina, states that ban _ exclusive

representation, the percentages were 4.2%, 5.2%,

6.0% and 8.2% respectively.

The statistics do not support overruling Abood.

These states account for but 10% of public employees

and 6% of all public-sector employee union members

in the United States. Further, they show that

exclusivity is an important factor in a successful

union-based labor policy, not the only important

factor.

Conveniently omitted from the footnoted

analysis are the membership percentages for states

that have exclusive representation and agency fees.

Those percentages and their comparison to exclusive

representation/non-agency fee states reveal the true

impact of agency fees on union membership — and

the differences are stark. In states such as New

York, New Jersey, Rhode Island and Massachusetts

where agency shop fees are built in to an exclusive

representation framework, public-sector union

membership hovers around 70.2%, 58.4%, 63.8% and

54.2% -— generally double that of states with

exclusivity that ban agency fees.’

In a _ post-Abood environment, those

percentages would inevitably tumble. The recent

case study of Wisconsin’s right-to-work legislation

illustrates the likely consequences of prohibiting

agency-fees. Wisconsin’s Act 10, passed in 2011,

contained a right to work provision among other

’ See “Union Membership and Coverage Database from the

CPS,” available at http //www.unionstats.com/ \ast visited

January 18, 2018.

27

restrictions on collective bargaining. (Keefe 2015, at

10). Once implemented, union membership in

Wisconsin’s largest teachers’ union immediately

declined by 29%. By early 2014, that union had lost

a third of its members and by February 2015, it had

lost more than half. /d@ The AFSCME union in

Wisconsin reported a similar experience, suffering a

70% decline in membership since Act 10 was enacted.

(Keefe 2015, at 10).8 Today, total union membership

in Wisconsin hovers at 9%.

Amici submissions tell a _ similar story

regarding Michigan’s 2012 right-to-work legislation.

As amicus explains, since 2012, the Michigan

Education Association’s membership has decreased

by 25% (some 29,637 members). The union’s dues

income has declined from $61,895,814 to $47,982,763

— a decrease of $13,913,015.” Mackinac Ctr. Br. 37.

Petitioner takes great pains to try to explain

away the free-rider problem and to hypothetically

justify why exclusive representation alone suffices to

“assist unions with recruiting and retaining

members.” Pet. Br. 40. The empirical evidence and

the recent experience of right-to-work states

demonstrates otherwise. Overruling Abood would

undeniably imperil collective bargaining nationwide.

Two final points merit brief mention. First,

aside from the dubious statistical data, Petitioner

dismisses the free-rider problem, at least in part,

because unions voluntarily seek to be exclusive

representatives. The argument is neither compelling

®* Citing Samuels, Robert, “Walker's Anti-Union Law Has Labor

Reeling In Wisconsin,” Washington Post, February 22 (2015).

28

nor correct. The notion that a union is “seldom

required” by law to engage in activities that benefit

nonmembers, Pet. Br. 47, is flatly untrue, at least in

New York, where the Taylor Law explicitly provides

for a compulsory duty of fair representation. N.Y.

Civ. Serv. L. 209-a(2)(c). Further, to the extent

Petitioner meant to assert that unions decide to

organize knowing this duty exists, the same can be

said of Petitioner. True, states do not compel unions

to become exclusive representatives (Pet. Br. 44), but

they also do not compel Petitioner to seek public

employment in a state which chooses to manage its

public employees using a union-based model,

including compulsory agency fees. See McAuliffe v.

Mayor of New Bedford, 29 N.E. 517 (Mass. 1892)

(Holmes, J.) (a policeman “may have a constitutional

right to talk politics, but he has no constitutional

right to be a policeman”).

Second, and relatedly, the elimination of

agency fees would create a perverse incentive for

unions to offer certain union services and benefits

only to members. While the core of unionization is

unity, where free riding threatens the viability of a

union, a union could be compelled to find ways to

attract dues-paying members. In states where such

“members only” benefits are prohibited, unions

would be severely hamstrung in their ability to

perform their statutory function by the absence of

agency fees. It would not only reduce union funding,

but it would force unions to shift resources towards

basic fee collection and away from core union duties.

Stated differently, allowing free-riding places a

significant economic strain on a ‘:nion’s ability to

effectively carry out its long-established and often

29

mandatory duty of fair representation for all

bargaining unit members.

ll. THERE IS A CLEAR DISTINCTION

Likely in recognition of the substantial

governmental interests outlined above, Petitioner

attempts to place great weight on the purported

infringement of his First Amendment rights, arguing

all speech directed at government which seeks to

influence policy to benefit the speaker (here, the

union) is lobbying, and, thus, political speech. But

this simplistic view of the complexities of public

employment stands in stark contrast to well-settled

nuanced case law in both the First Amendment and

other contexts.

The longstanding test for whether speech of a

public employee is protected First Amendment

speech is whether the speech is a matter of “public

concern” or whether the speech is made “pursuant

to” the employees’ official duties. Garcetti, 547 U.S.

at 421. The rationale for this content-focused

approach is that while the public-sector employee

does not shed his or her constitutional protections

when accepting public positions, the government

may properly regulate employment-related speech

necessary for efficient and effective operation as an

30

employer. Garcetti, 547 U.S. at 418.° A “government

has significantly greater leeway in its dealings with

citizen employees than it does when it brings its

sovereign power to bear on citizens at large,”

Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 600

(2008), and a citizen who accepts public employment

“must accept certain limitations on his or her

freedom.” Borough of Duryea v. Guarnieri, 131 S. Ct.

2488 (2011) (Kennedy, J.,) (quoting Garcetti, 547

U.S. at 418).

Speech made about and pursuant to one’s

official duty as a public employee is_ not

constitutionally protected. A police officer's

9 The distinction between the government acting as employer

as opposed to sovereign is not limited to the First Amendment

context. A crucial difference exists with respect to

constitutional analysis, “between the government exercising

“the power to regulate or license as a lawmaker,” and acting “as

proprietor, to manage [its] internal operations.” Engquist, 553

U.S. at 598 (internal citation omitted).

This Court has long held, for instance, that in certain

circumstances public sector employees may have their property

i governmental

(O'Connor v. Ortega, 480 U.S. 709, 721-22 (1987)); they may not

petition the government under the Petition Clause of the First

Amendment on private employment matters (Guarnieri, 131 S.

Ct. at 2501); and they may not invoke the Equal Protection

Clause “class-of-one” theory to challenge employment personne!

decisions (Oregon, 553 U.S. at 598). Each of these precedents

recognizes that when the government acts within the

employment relationship, a modest infringement of

constitutional rights gives way to more practical realities of a

functioning governmental workplace. This case is no different.

31

complaints about planned department

reassignments,'° for example; a teacher’s complaint

about her workload,'' or general speech about

employment conditions’? are the types of routine

workplace matters that do not constitute protectable

First Amendment speech.

Yet, under Petitioner's view, the collective

voice of a union, rather than an individual employee

speaking on the very same matters — departmental

reassignments, workload and employment

conditions— constitutes protected political speech.

The idea that these commonplace employment-

related matters are suddenly transformed into

political ones because they are asserted by a union,

rather than a single employee, is unprincipled, finds

no support in First Amendment case law and

threatens to upend decades of this Court’s precedent.

Typically, the determination of whether the

coerced or prohibited speech at issue implicates the

government acting as employer or as sovereign

requires consideration of the actual speech and the

context of that speech. Courts primarily look to

whether the speech relates to “a matter of public

concern.” Garcetti, 547 U.S. at 418. If not, the

employee has “no First Amendment cause of action.”

Id. If the speech addresses a matter of public

concern, contrary to Petitioner's implication, the

analysis does not stop there. The court then

0 Mills v. City of Evansville, 452 F.3d 646 (7th Cir. 2006);

"| Fox v. Traverse City Area Pub. Sch. Bd Of Educ., 605 F.3d

345, 347 (6th Cir. 2010);

2 Brooks v. Arthur, 685 F.3d 367, 372 (4th Cir. 2012).

32

determines whether the government had adequate

justification for its action by balancing the interests

of the employee, “as a citizen, in commenting upon

matters of public concern, and the interest of the

state, as an employer, in promoting the efficiency of

the public services it performs through its

employees.” Pickering, 391 U.S. at 568.

Even if arising from separate precedential

antecedents, Abood’s distinction between non-

ideological and ideological speech functions as an

overlay on Pickering’s distinction between speech in

the government workplace of “public concern” and

“speech of its employees.” Pickering, 391 U.S. at 568.

Though the Abood Court did not extensively cite the

Pickering balancing test, it surely understood this

distinction between the government as an employer

and as sovereign. The Abood Court correctly

recognized that the “uniqueness of employment is not

in the employees nor in the work performance; the

uniqueness is in the special character of the

employer,” the government which has a separate and

independent constitutional obligation to its citizens.

431 U.S. at 227. Thus, the Court recognized the

distinct duties of the government both to its

employees and to citizens broadly.

The Abood Court drew a line between, on the

one hand, lobbying and political activities directed at

the government as sovereign, and on the other,

collective bargaining or negotiating terms of

employment, directed at the employer (which here

happens to be the government). The union’s

exclusive representation of a workforce, inextricably

intertwined with the right to collect agency fees, is

limited to the bargaining table. Such exclusivity

33

does not extend to street corners, voting booths or

the steps of City Hall, where agency fee payers and

union members alike may agree or disagree with

particular positions taken by the union or

government, including the adoption or repeal of

right-to-work laws.

Petitioner suggests that his objection to paying

fair share fees is political or reflects a matter of

“public concern” because government spending writ

/arge raises issues of public import. But Petitioner is

applying the Pickering framework to the wrong

speech. To attempt to invalidate agency fees,

Petitioner claims that it is the union’s speech on

issues pertaining to pay and working conditions that

is protected politicai lobbying such that Petitioner

should not be required to support it. The claim is

tied directly to the distinction drawn by Abood and

its progeny between union speech related to

collective bargaining and political lobbying. The

Pickering framework(like Abood, however, treats

such speech about the adequacy of pay, hours of

operation, the disrepair of facilities as generally

constituting employee grievances and not protected

speech on a matter of public concern. The only

difference between an _ individual employee

complaining about inadequate compensation (speech

that, under Pickering, would not be protected speech)

and a union seeking wage increases is the number of

voices represented in the demand, not the nature of

the speech.

For over 50 years, the Court has not only

recognized but repeatedly emphasized this

important, nuanced distinction between a union's

political expenditures, ie, those of a “public

34

concern,” and “those germane to _ collective

bargaining” with only the latter properly chargeable

to non-union members. -.g., LeAnert, 500 U.S. at

515. An employee’s free speech rights “are not

unconstitutionally burdened because the employee

opposes a position taken by the union in its capacity

as collective bargaining representative.” /d. at 517.

Basic speech by a union concerning quintessential

employment matters — wages, benefits, discipline,

promotions, leave, vacations and termination — do

not necessarily transform into constitutionally

protected First Amendment speech as addressed by a

union simply because such decisions may in some,

unspecified manner impact the public. Harris, 134 S.

Ct. at 671 (Kagan, J., dissenting) (‘we have made

clear that except in narrow circumstances we will not

allow an employee to make a federal constitutional

issue out of basic employment matters, including

working conditions, pay, discipline, promotions,

leave, vacations, and terminations”) (internal

citation omitted).

B. Abood \s “workable” As New York City’s

Public-Sector Unions Provide Services

(Funded By Agency Fees) That Are

Undeniably Non-Political And Non-

Ideological

The notion that Adood is “unworkable” is a

convenient and academic argument asserted under

the guise of practicality. In reality, Abood is

eminently workable. And even if Petitioner could

establish that the existing test for identifying

chargeable expenses was somehow inadequate, the

appropriate solution would be to refine the test, not

35

to jettison it altogether and risk dismantling public -

sector labor relations in multiple states.

The bulk of the often voluminous collective

bargaining agreements that our member unions sign

with New York City and other City-affiliated public

employers concern employment matters far beyond

anything that could fairly be considered lobbying or

of “public concern.” Just because unions at times

align themselves with a “wide range of social,

political, and ideological viewpoints” and causes,

Lehnert, 500 U.S. at 587-88, does not mean they

always, or even often, so align.

In the vast majority of instances chargeable

activities may be readily distinguished from non-

chargeable ones. Quite apart from lobbying and

other ideological activities that occupy newspaper

headlines, New York City municipal unions perform

valuable administrative and other services. For

example, many MLC unions provide personal

pension consultation services (for members and

agency fee payers alike). These consultations create

no increase in pension costs or influence any

governmental expenditure or budgetary item. The

only cost associated with the consultation is borne by

the union in providing trained consultants, facilities

and materials.

There are elsewhere myriad examples of such

chargeable services being regularly provided by MLC

member unions that are valuable to members and

agency fee payers alike, costly for the union to offer

and, even by Petitioner's own measure of lobbying

(.e., attempting to influence policy) not political in

36

nature.'* MLC unions, for example, provide group

legal services for a variety of members’ personal

matters, including house closings, will preparation,

and matrimonial disputes, without regard to whether

the member pays dues or an agency fee.

Moreover, workplace health and _ safety

represent additional important chargeable areas for

many New York City workforces. Unions provide

safety education and represent workers in situations

where their safety may be compromised. In fact,

several New York City unions have industrial

hygienists on staff (at no small cost), to address

workplace health and safety issues — from contact

with hazardous materials, to procedures for handling

contagious diseases, to investigations that reveal

whether a school or other public facility is located on

a toxic site or contains asbestos. The benefits of

these services inure to members, agency fee payers

and, often, the public as well. Not having students

and staff breathing in asbestos in a_ school

undergoing construction, ensuring that female

employees have sanitary facilities for clean-up, or

that all employees have appropriate places for

donning and doffing gear reflect typical workplace

issues, not the manifestation of a political agenda.

'8 Petitioner specifically relies on a comment made in Harris

that a union's position on spending may have a “massive” effect

on government spending. Pet. Br. 14. That assertion neither

legally determines the issue nor is its implication that unions

cause government to substantially increase spending true.

Citations to the total cost of providing a public service do not

speak to the impact of union speech, but to the scale of the

service provided. In any event, studies have found that overall

budgetary expenditures do not materially shift as a result of

collective bargaining. (Keefe 2015, at 11).

37

Similarly, while Petitioner fixates on a union’s

role in negotiating wage increases, that task occurs

only periodically upon the expiration of a prior

agreement. Even in the realm of compensation, a

union spends the vast majority of its day-to-day work

administering the agreement, including helping

workers understand pay _ structures, evaluate

possible payroll errors and navigate the payroll

correction processes. Viewed honestly, these

activities cannot be characterized as remotely

political in nature or lobbying, yet are immensely

important to an individual public-sector employee.

These types of services, combined with

matters of health and safety, handling grievances,

and providing legal services, comprise the bulk of the

work of our unions, which are funded by dues and

agency fees.

Finally, public-sector unions in New York

City, like many around the country, understand the

distinction drawn in Abood and its progeny between

chargeable and non-chargeable activities, and have

implemented workable administrative pay structures

consistent with its teachings. As the Abood Court

recognized, while there may be occasional “problems

in drawing lines between collective bargaining...and

ideological activities,” 431 U.S. at 236, they are few

and far between — certainly not occurring with

sufficient frequency to issue a blanket invalidation of

fair share fees altogether.

This Court should be under no illusion: the

Petitioner and his amici supporters, in drawing their

hypothetical lines without any record to support it,

mischaracterize the true realities of operating a

union and managing a city’s large public-sector

38

workforce. Theoretical classification issues are not a

reason to disrupt such an important and well-

established precedent, particularly one that the

public-sector unions of New York have relied upon

for decades.

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be affirmed and this Court

should decline to overrule Abood.

Harry Greenberg

GREENBERG BURZICHELLI

GREENBERG P.C.

3000 Marcus Ave.,

Lake Success, NY 11042

New York, NY

(516) 570-4343

hgreenberg@

gbglawoffice.com

Robin Roach

DISTRICT COUNCIL 37,

GENERAL COUNSEL

125 Barclay Street

New York, New York

10007

(212) 815-1450

rroach@dc37.net

Respectfully submitted,

Alan M. Klinger

Counsel of Record

Dina Kolker

David J. Kahne

STROOCK & STROOCK

& LAVAN LLP

180 Maiden Lane

New York, NY 10038

(212) 850-5400

aklinger@stroock.com

January 19, 2018