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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0755%3A73. Public record. Not legal advice.