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

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No. 16-1466

IN THE

Supreme Court of the United States

MARK JANUS,

Petitioner,

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 31, et al.,

Respondents.

ON APPEAL FROM THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE CITY OF NEW YORK AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

ZACHARY W. CARTER

Corporation Counsel of

the City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

Counsel for Amicus Curiae

RICHARD DEARING*

JASON ANTON

NOAH KAZIS

*Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORTIES . . . iii

INTEREST OF AMICUS CURIAE 1

SUMMARY OF THE ARGUMENT. n 3

ARGUMENT. ...... 5

|. The City authorized agency fees in response

to a series of devastating strikes that caused

massive public harm—ꝛp— 5

A. The City’s early adoption of public-sector

collective bargaining proved insufficient

to prevent labor disruption . 6

B. The City’s use of agency shop provisions

ultimately fortified a successful collective

bargaining systemnm 13

II. Petitioner and amici ignore the compelling

public interest of New York City and other

jurisdictions in avoiding disruption of

essential public services. 17

A. The City’s circumstances render labor

peace a particularly compelling interest

8881 —————— 19

B. Governments’ practical need to adapt to

local circumstances points against

constitutionalizing a single approach to

public-sector labor relations........................ 23

— ———ñ—̃ —-— 29

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977)... . . . . . .

Bauch v. New York,

21 N.Y.2d 599 (1968) ..... . ... .

Bond v. United States,

564 U.S. 211 (2011)

Garcia v. San Antonio Metro. Transit

Auth.,

469 U.S. 528 (19888)... .

Kelo v. City of New London,

545 U.S. 469 (2005) cce cece

Statutes

Act of Aug. 3, 1977, ch. 677, 1977 N.Y.

Sess. Law 1081 (McKinney)................

Act of July 24, 1992, ch. 606, 1992 N.Y.

Sess. Laws 1650 (McKinney)...............

Bill Jacket for Act of Aug. 3, 1977, ch. 67

Condon-Wadlin Act, ch. 391, 1947 N. V.

Laws 256 (repealed 1967)

ill

Page(s)

a 26

Local Law No. 1 (1972) of City of New

, PETE ES SE eee 14

Local Law No. 53 (1967) of City of New

— — ͤ ͤ v ͤ tari anda dadensinines 10

Mich. Comp. Laws § 423.2103) c) (2017) 27

Mich. Comp. Laws § 423.210(4) (2017) . 25

National Labor Relations Act. ch. 372, 49

D, dT 6

Ohio Rev. Code Ann. § 4117.140002)

nnr. 27

Public Emplovees’ Fair Employment Act

(Taylor Law), ch. 392, 1967 N.Y. Sess.

INL 7, 10

Texas Gov't Code § 617.002 (2017) . 25

Wis. Stat. § 111.8100) (2017). . . 25

Wannen. 25

ie 25

Other Authorities

$100-Million Loss Each Day Is Seen, N.Y.

enn 9

About DSNY, N. V. C. Dep't of Sanitation,

http://www |.nyc.gov/assets/dsny/about/

e rin cin scernanabinbaeenicbnaccdinn

Admin. Order (Mayor Beame) No. 38

r ¾— ,

Annual Estimates of the Resident

Population for Incorporated Places of

50,000 or more, Ranked by July 1, 2016

Population: April 1, 2010 to July 1,

2016, U.S. Census Bureau (2017),

https://factfinder.census.gov/bkmk/tab]

e/1.0/en/PEP/

20 16% PEPANNRSIP. US 12A. . .

Brian A. Reaves, U.S. Dep't of Justice,

Bureau of Justice Statistics, Local

Police Departments, 2013: Personnel,

Policies, and Practices (2015),

httpy/ www. bis. gov / content / pub / pdf /lpd

David W. Chen, Electchester Getting Less

Electrical; Queens Co-op for Trade

Workers Slowly Departs From Its

Roots, N.Y. Times, Mar. 15, 2004................

Dep't of C.tywide Admin. Servs., New

York City Gov't Workforce Profile

Report, Fiscal Year 2016 (2016),

http://www.nyc.gov/htmI|/dcas/downloa

ds/pdf/misc/workforce_profile_report_fy

— 21

Editorial, The Big Crush, N.Y. Times, Jan.

n ̃—

Editorial, This Beleaguered City, N.Y.

Emanuel Perlmutter, Shots Are Fired in

Refuse Strike; Filth Litters City, N.Y.

r ¶

Emanuel Perlmutter, Welfare Help in u

City Curbed by a Walkout, N.Y. Times,

a .

Emanuel Perlmutter, Welfare Strike Due

in City Today in Spite of Writ, N.Y.

„

Enrollment, poverty, and federal funds for

the 100 largest school districts, by

enrollment size in 2010, U.S. Dep't of

Educ., Nat'l Ctr. for Educ. Statistics

(2013),

https://nces.ed.gov/programs/digest/d14

tables / dt 14 215.30. asp. . . . .

Exec. Order (Mayor Wagner) No. 49 (1958)

Exec. Order No. 10,988, 3 C.F.R. 321

STS AERP cea ieee rr we

Fragrant Days in Fun City, Time, Feb. 16,

Governor's Comm. on Pub. Emp.

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

Homer Bigart, New Talks Today: Quill

Scores Mayor—Says Walkout Could

Last for a Month, N.Y. Times, Jan. 2,

Jack Spencer, Right-to-Work Bills Pass

Michigan House, Senate, Mich. Capitol

Confidential (Dec. 7, 2012),

http://www. michigancapitol

confidential. com / 18028888

Jeffrey A. Kroessler, New York Year By

Year: A Chronology of the Great

Metropolis 309 (2002)

John V. Lindsay, City of N.Y., Report and

Plan Submitted Pursuant to Chapter

24, Laws of 1969, D signed to Bring

New York City’s Labor Relations

Practices into Substantial Equivalence

with the Public Employees’ Fair

Employment Act (1969) . .. .

John V. Lindsay, City of N. V., Report

Submitted Pursuant to Chapter 24.

Laws of 1969, Designed to Bring New

York City’s Labor Relations Practices

into Substantial Equivalence with the

Public Employees’ Fair Employment

1 ———— —

vii

Joshua B. Freeman, Working-Class New

York: Life and Labor Since World War

( ———— — 8, 24

Leonard Buder, Parents Smash Windows,

Doors to Open Schools, N.Y. Times,

a si nistindiasonisinenci

Leonard Buder, Strike Cripples Schools,

No Settlement in Sight, N.Y. Times,

BE —T———

Letter trom Governors Comm. on Pub.

Emp. Relations to Governor Nelson A.

Rockefeller (Jan. 23, 1969))))9)9)⸗

Mark Niquette, Walker’s Bill Gives

Wisconsin Police a Pass on Pension

Payments, Bloomberg (Feb. 25, 2011,

12:00 AM),

http://www.bloomberg.com/news/article

s/2011-02-25/walker-says-public-safety-

means-wisconsin-cops-keep-collective-

Memorandum from Donald H. Wollett,

N.Y. State Office of Emp. Relations, to

Judah Gribetz, Counsel to the

Governor (July 29, 1977), reprinted in

Bill Jacket for Act of Aug. 3, 1977, ch.

viii

Michael Marmo, More Profile than

Courage: The New York City Transit

Strike Of 1966 (1990). . . . . .

Mike Maciag, Mapping the Nation’s Most

Densely Populated Cities, Governing

(Oct. 2, 2013),

http://www.governing.com/blogs/by-the-

numbers/most-densely-populated-

cities data - map. html

Mike Pesca, The True Cost of the NYC

Transit Strike, NPR (Dec. 21, 2005,

12:00 AM),

http://www.npr.org/templates/story/sto

ry. phpꝰstoryld 5064612.

The MTA Network, Metro. Transp. Auth.,

http://web.mta.info/mta/network.htm.........

News Summary and Index: The Major

Events of the Day: Transit Strike, N.Y.

e ̃ i;. (

Overview, N. V. C. Fire Dep't,

https://www l. nyc. gov/ site /fdny / about /o

verview / overview. page

Physical Housing Characteristics for

Occupied Housing Units: 2011-2015

American Community Survey 5- Year

Estimates, U.S. Census Bureau (2017),

https://factfinder.census.gov/bkmk/tabl

e/1.0/en/ACS/15_5YR/S2504/1600000U

The Police Strike in New York, Chi. Trib.,

. inane

Population Facts, N. V. C. Dep’t of

Planning, http://www.nyc.gov/html/dcp

/htmI/census/pop_facts.shtm]....................

Presentation by the Majority Leader,

Thomas J. Cuite 4, reprinted in New

York Legislative Service, NYLS’ New

York City Legislative History: 1972

Local Law #1 (2010). . .

Press Release, City of N.Y., Mayor de

Blasio Announces Total NYC Visitors

Surpasses 60 Million for First Time

(Dec. 19, 2016),

http://www L.nyc.gov/office-of-the-

mayor/news/963- 16/mayor-de-blasio-

total-nyc-visitors-surpasses-60-million-

IIE... cccchetiniteibnndncatienienabiniatsuseeateadaidis

Richard L. Rubin, Memorandum in

Support (July 29, 1977), reprinted in

Bill Jacket for Act of Aug. 3, 1977. ch.

Richard Reeves, Police: ‘Attention Must Be

Paid!’ Say the Men on Strike, N.Y.

Right-To-Work Resources, Nat’) Conf. of

State Legislators, (2017),

http://www.ncsl.org/research/labor-and-

employment/right-to-work-laws-and-

EEE Ee 24

Ronald Donovan, Administering the

Taylor Law: Public Employee Relations

in New Yorke (1990) 7, 8, 10

Sam Roberts, Commuters Nearly Double

Manhattan’s Daytime Population,

Census Says, N.Y. Times: City Room

(June 3, 2013, 11:56 AMW) 20

Statistical Summaries, N. V. C. Dep’t of

Educ. (2014),

http://schools.nyc.gov/About Us/schools/

data/stats/default. htꝶꝶmm 22

Steven Greenhouse, The Wisconsin

Legacy, N.Y. Times, Feb. 23, 2014 7

Strict Rules Set on Travel into the City

During Strike, N.Y. Times, Jan. 1,

e SEE Se ieee a 9

Strikes Bitter End, Time, Nov. 29, 1968 12

Tad Fitch, J. Kent Layton & Bill

Wormstedt, On a Sea of Glass: The Life

and Loss of the RMS Titanic (2013) 11

Terry O’Neil & E.J. McMahon, Empire

Ctr., SR4-07, Taylor Made: The Cost

and Consequences of New York’s

Public-Sector Labor Laws (2007),

http://www.empirecenter.org/wp-

content/uploads/20 13/06/Taylor-

1 ——— passim

xii

INTEREST OF AMICUS CURIAE

The City of New York submits this brief amicus

curiae to describe how, decades ago, it came to

embrace agency fees. This historical perspective

will illuminate a key backdrop to Abood v. Detroit

Board of Education, as well as the City’s powerful

interest, on behalf of all its residents, in the Court’s

preserving that decision now.

The story centers on a series of paralyzing

public-sector strikes in the 1960s and 1970s that

wreaked havoc on millions of City residents,

including union members and their families but

hardly limited to them. Garbage piled in streets,

children missed weeks of school, and subways

ground to a halt.

When a ban on strikes paired with collective

bargaining and automatic dues collection proved an

ineffectual response to the crisis, the City and State

turned to agency shop agreements as part of a

broader labor management strategy designed to

promote labor stability. The City’s collective

bargaining system flourished thereafter, and its

success has helped protect public health and safety

ever since.

Over the decades, the reliable funding provided

by agency fees has enabled the City’s public-sector

unions to pursue informed bargaining strategies

that benefit the workforce broadly, rather than

short-term or confrontational approaches designed

to serve only the interests of those most willing to

pay union dues. Effective collective bargaining

regimes are time- and resource-intensive, and must

protect all represented employees, whether active

or inactive, member or nonmember. Financial

stability helps empower unions to build long-

lasting and constructive bargaining relationships

with the City, improving the provision of public

services to the benefit of all residents. Indeed,

disagreements between the City and its unions now

rarely result in the sort of public disruption that

plagued New Yorkers before agency fees were used.

Agency fees remain critically important. The

City retains over 380,000 workers—more than all

but five private employers in the country—and

nearly all of those workers are currently

represented by a union. It ranks first nationwide in

the number of unionized workers it manages. And

unionized public-sector workers are responsible for

a wide range of services essential to the operation

of the nation’s densest and most populous city.

Overruling Abood would strip jurisdictions like

New York City of a vital tool that has for years

promoted productive relationships with public

workforces. History shows that millions of everyday

New Yorkers, including the City’s public

employees, would ultimately shoulder the cost of

any resulting discord. That is a risk that should not

be revived.

SUMMARY OF THE ARGUMENT

Under traditional collective bargaining schemes,

employees have the right to select a union by

majority vote to serve as their exclusive

representative in negotiations. Agency shop

provisions permit the selected union to charge

employees who decline to join it a fee to defray the

cost of its non-political activities that benefit the

entirety of the workforce it represents. Forty years

ago, this Court upheld the constitutionality of the

public-sector agency shop in Abood v. Detroit Board

of Education.! Relying on Abood, jurisdictions

across the nation have legalized and negotiated the

collection of agency fees to support public-sector

collective bargaining.

New York City agrees with respondents that

agency fees do not run afoul of the First

Amendment, and that Abood’s decades-old

precedent should be preserved. In support of these

contentions, the City submits this brief to highlight

two points which illustrate why agency fees are

central to many public labor management schemes,

and the strength of the government interest—as

employer and protector of public welfare—in

permitting their collection.

First, as the City’s history demonstrates, agency

fees are a key means of protecting the public from

the disruption of government services caused by

' 431 U.S. 209 (1977).

labor disputes. The City embraced the agency shop

as part of a comprehensive labor management

system at a time when existing collective

bargaining policy proved insufficient to yield a

reliable alternative to strikes. The change helped to

stabilize labor relations for the benefit of all City

residents, not just the City’s workers.

Second, and relatedly, the City’s experience

rebuts petitioner's crabbed portrayal of the

government interest in agency fees. The

collaborative benefits of strong bargaining

relationships aside, Petitioner ignores the massive

public harm that can arise from the disruption of

public services, especially in large, densely

populated cities like New York City. Given this

threat, tools that reduce the risk of public-sector

strikes—like agency fees—serve a compelling

government interest that far exceeds mere

administrative convenience. While different

jurisdictions may reasonably find different labor

management strategies better suited for their

particular circumstances, Abood wisely left those

choices to the political process.

ARGUMENT

I. The City authorized agency fees in

response to a series of devastating strikes

that caused massive public harm.

The City has found it essential public policy

both to pursue collective bargaining with public-

sector unions and to promote its effectiveness.

Successful negotiations not only advance the

welfare of wage-earners and their families, but

more broadly serve the public’s strong interest in

prompt and successful resolution of labor disputes.

In plain terms, the City’s residents suffer when

vital public services are interrupted by strikes.

The City had this consideration specifically in

mind when it pushed for agency fees as part of a

comprehensive program based on successful

private-sector models that would protect the

public from the catastrophic harm of public-sector

strikes. The fees served to buttress the existing

labor relations framework at a time when collective

bargaining and union exclusivity alone proved

inadequate to yield a sufficiently stable and robust

alternative to strikes.

Certainly, no labor relations system is perfect.

Nor can the impact of any of its components be

measured in isolation. But it is undeniable that

collective bargaining paired with agency fees has

proven to be a successful formula for promoting

labor peace in New York City (and across New York

State).

A. The City’s early adoption of public-

sector collective bargaining proved

insufficient to prevent labor disruption.

Congress protected private-sector workers’ right

to organize and bargain in the 1935 National Labor

Relations Act.“ For decades thereafter, however, no

similar system existed for public-sector workers.

Instead, many states, including New York,

attempted to minimize the damage of public-sector

labor disputes by simply banning government

workers from striking and imposing harsh fines on

violators. ®

But banning strikes proved ineffective absent a

mechanism to address and remedy the root causes

of labor unrest.‘ In response, the City pioneered

collective bargaining as a means of promoting the

fair resolution of public-sector labor disputes such

that employees would not feel compelled to walk

out on the job.

2 See National Labor Relations Act, ch. 372, § 7, 49 Stat. 449,

452 (1935) (codified as amended at 29 U.S.C § 157 (2012)).

See Condon-Wadlin Act, ch. 391, 1947 N.Y. Laws 256

(repealed 1967); see also Terry O'Neil & EJ. McMahon,

Empire Ctr. SR4-07, Taylor Made: The Cost and

Consequences of New York's Public-Sector Labor Laws 3

(2007), available at http://www.empirecenter.org/wp-contenU

uploads/2013/06/Taylor-Made.pdf.

4 O'Neil & McMahon, supra note 3, at 3 (noting Condon-

Wadlin’s “mixed effectiveness” and that it ultimately was

deemed “flawed and unenforceable’).

In 1958, Mayor Robert F. Wagner issued an

executive order authorizing collective bargaining

through public-sector labor unions for certain

groups of City workers.“ The order recognized that

“labor disputes between the City and its employees

[would] be minimized, and that effective operation

of the City’s affairs in the public interest [would] be

safeguarded, by permitting employees to

participate ... through their freely chosen

representatives in the determination of the terms

and conditions of their employment.“ It positioned

the City as one of the first jurisdictions in the

nation to adopt an essentially private sector model

for municipal labor relations.“ Similar rights

would not be granted to any State workers until

1959.5 to federal pub ic employees until 1962.0 or to

New York State public employees until 1967.0

5 See Ronald Donovan, Administering the Taylor Law: Public

Employee Relations in New York 14 (1990) (describing the

Executive Order); O'Neil & McMahon, supra note 3, at 4.

® Exec. Order (Mayor Wagner) No. 49 § 2 (1958).

Michael Marmo, More Profile than Courage: The New York

City Transit Strike of 1966, at 72 (1990).

Donovan, supra note 5, at v; Steven Greenhouse, The

Wisconsin Legacy, N.Y. Times, Feb. 23, 2014, at BCI.

Exec. Order No. 10,988, 3 C. F. R. 321 (1959-1963)

See Public Employees’ Fair Employment Act (Taylor Law),

ch. 392, §§ 202-03, 1967 N.Y. Sess. Laws 393, 396 (McKinney)

— 1

Without agency fees, the right to collectively

bargain, even when paired with an outright ban on

public-sector strikes, failed to prevent destructive

labor disputes. New York City was the epicenter of

a series of strikes from the mid-1960s through the

early 1970s. State officials considered the City to be

the poster child for the failure of then-existing law

to “protect vital public interests. The effect on

ordinary New Yorkers, including union members,

was profound.

The wave of public-sector strikes began in 1965,

when eight thousand welfare workers held a

twenty-eight-day work stoppage, closing two-thirds

of the City’s welfare centers. It disrupted vital

services for half a million welfare recipients, many

of them children or seniors. '*

(codified as amended at N.Y. Civ. Serv. Law §§ 202-03

(2015)); see also O Neil & McMahon, supra note 3, at 6.

Letter from Governors Comm. on Pub. Emp. Relations to

Governor Nelson A. Rockefeller 10 (Jan. 23, 1969) (on file

with the New York City Law Department).

2 See Joshua B. Freeman, Working-Class New York: Life and

Labor Since World War II 205 (2000); O'Neil & McMahon,

supra note 3, at 3.

Emanuel Perlmutter, Welfare Help in a City Curbed by a

Walkout, N.Y. Times, Jan. 5, 1965, at 1, 21; Emanuel

Perlmutter, Welfare Strike Due in City Today in Spite of Writ,

N.Y. Times, Jan. 4, 1965, at 1, 25.

Then, on the following New Year’s Day, transit

workers began a twelve-day strike- Which

persisted despite a court injunction—that cost the

City’s economy nearly $9 billion in today’s dollars.“

The strike effectively shut down the subway and

bus system, overwhelming railroads, producing

historic traffic jams, and closing public schools.

This led the mayor to devise “the most urgent civil

defense plan New York City has ever had to

improvise for its own health and safety.“ The New

York Times captured the scene: “Seldom in its

history has New York City been through more

difficult days, ... and not since the draft riots of the

Civil War has the normal course of life in [the] city

been more profoundly altered for so many days.” '®

In the aftermath of this vast turmoil, the City

and State governments each made it a priority to

promote the resolution of labor disputes through an

Donovan, supra note 5, at 19; Freeman, supra note 12, at

211; Marmo, supra note 7, at 151; O'Neil & McMahon, supra

note 10, at 4; see also News Summary and Index: The Major

Events of the Day: Transit Strike, N.Y. Times, Jan. 5, 1966, at

33; $100-Million Loss Each Day Is Seen, N.Y. Times, Jan. 5,

1966, at 1, 16

Editorial, The Big Crush, N.Y. Times, Jan. 3, 1966, at 26;

Homer Bigart, New Talks Today: Quill Scores Mayor—Says

Walkout Could Last for a Month, N.Y. Times, Jan. 2, 1966, at

1, 58; Strict Rules Set on Travel into the City During Strike,

N.Y. Times, Jan. 1, 1966, at 1, 6.

Editorial. This Beleaguered City, N.Y. Times, Jan. 12, 1966,

at 20.

effective bargaining system. In 1967, based largely

on the City’s recent experience, New York State

enacted the Taylor Law to “protect[{] the public

against the disruption of vital public services ...,

while at the same time protecting the rights of

public employees.“ The law created a new

comprehensive scheme for public-sector labor

relations to address the root causes of labor unrest.

It paired the State’s prohibition on public employee

strikes with an overarching process for collective

bargaining, including an automatic deduction of

union dues from paychecks (or “dues check-off’).

The law also established a “new administrative

agency charged exclusively with the regulation of

public sector labor relations.” !“

Relying on a Taylor Law provision permitting

local flexibility and experimentation, the City

enacted its own Collective Bargaining Law,

creating an Office of Collective Bargaining to

Governors Comm. on Pub. Emp. Relations, Final Report 9

(1966) (internal quotation marks omitted) (on file with the

New York City Law Department); see also Public Employees

Fair Employment Act (Taylor Law), ch. 392, § 200, 1967 N. V.

Sess. Laws 393, 394 (McKinney) (codified as amended at N_Y.

Civ. Serv. Law § 200 (2015)) (describing its purpose as “to

promote harmonious and cooperative relationships between

government and its employees and to protect the public by

assuring, at all times, the orderly and uninterrupted

operations and functions of government’).

Donovan, supra note 5, at v; O'Neil & McMahon, supra note

3, at 6.

effectuatſe] sound labor relations and collective

bargaining between public employers and

institutions in the city and their employees.“ The

legislation took effect on the same day as the

Taylor Law.

While a positive step, the new collective-

bargaining laws, without agency shop provisions,

failed to solve the problem of labor unrest. Instead,

disagreements between the City and public-sector

workers continued to impose enormous financial

costs and public harm:

e In February 1968, a sanitation strike left

the streets piled with nearly 100,000 tons

of refuse—enough to fill the Titanic

twice.?! This led to a proliferation of trash

fires and the City’s first general health

emergency since a 1931 polio epidemic. ””

The New York Times likened the City to

“a vast slum” as “mounds of refuse grew

Local Law No. 53 (1967) of City of New York.

John V. Lindsay, City of N.Y., Report Submitted Pursuant

to Chapter 24, Laws of 1969, Designed to Bring New York

City's Labor Relations Practices into Substantial Equivalence

with the Public Employees’ Fair Employment Act 7 (1969) (on

file with the New York City Law Department).

See Fragrant Days in Fun City, Time, Feb. 16, 1968, at 23;

Tad Fitch, J. Kent Layton & Bill Wormstedt, On a Sea of

Glass: The Life and Loss of the RMS Titanic, at App. A (2013).

22 See Fragrant Days in Fun City, supra note 21, at 23.

higher and strong winds whirled the filth

through the streets.”2°

„Later in 1968, three teacher walkouts

caused more than a million children to

miss thirty-six days of school. The City’s

poorest children were hardest hit:

240,000 kids went without their free daily

lunches.25, Some parents fashioned

improvised classrooms in churches and

storefronts, while others resorted to

smashing doors and windows to open

their children’s schools. 20

„ In January 1971, the City’s police force

held an unscheduled walkout (or “wildcat

strike”). For six days, less than a sixth of

the City’s patrolmen reported for work.?“

Emanuel Perlmutter, Shots Are Fired in Refuse Strike;

Filth Litters City, N.Y. Times, Feb. 5, 1968, at 1, 37.

24 See Leonard Buder, Strike Cripples Schools, No Settlement

in Sight, N.Y. Times, Oct. 15, 1968, at 1, 38; Strike’s Bitter

End, Time, Nov. 29, 1968, at 89.

2 See Strikes Bitter End, supra note 24, at 89.

Leonard Buder, Parents Smash Windows, Doors to Open

Schools, N.Y. Times, Oct. 19, 1968, at 1, 26; Strike’s Bitter

End, supra note 24, at 89.

Jeffrey A. Kroessler, New York Year By Year: A Chronology

of the Great Metropolis 309 (2002); The Police Strike in New

York, Chi. Trib., Jan. 21, 1971, at 20; Richard Reeves, Police:

The Chicago Tribune described a city

“nakedly exposed to the threat of

criminality on a massive scale.“

The continued turmoil made abundantly clear that

more had to be done to forge an effective system of

collective bargaining that would serve, consistently

and in the long term, as a bulwark against public-

sector strikes.

B. The City’s use of agency shop provisions

ultimately fortified a successful

collective bargaining system.

It was at this pivotal time that New York City

looked to agency shop provisions to help create

effective and stable collective bargaining and stem

labor unrest. In 1969, the City’s Mayor urged the

State Legislature to adopt “the agency shop, a

recognized form of union security,” as a means of

promoting both “labor harmony and

responsibility. 2%

‘Attention Must Be Paid!’ Say the Men on Strike, N.Y. Times,

Jan 17, 1971, at El.

Re Police Strike in New York, supra note 27, at 20.

John V. Lindsay, City of N.Y., Report and Plan Submitted

Pursuant to Chapter 24, Laws of 1969, Designed to Bring New

York Citys Labor Relations Practices into Substantial

Equivalence with the Public Employees’ Fair Employment Act

9-10 (1969) (on file with the New York City Law Department).

The City pursued agency shop arrangements that same year.

Three years later, in 1972, the City explicitly

amended its own Collective Bargaining Law to

permit the negotiation of agency shop

arrangements to the full extent permitted by state

law.*° Only a few years after that, and against the

backdrop of repeated disruption of public services

in New York and other cities, this Court decided

Abood. The stakes would have been clear to any

newspaper reader of the time—and could not have

been lost on the Court.

After Abood resolved the constitutionality of

agency fees in the public sector, New York State

moved quickly to amend the Taylor Law to require

state employees to pay agency fees and to designate

them a mandatory subject of negotiation at the

local levels! The Legislature explicitly relied on

See Local Law No. 1 (1972) of City of New York § 10; see

also Presentation by the Majority Leader, Thomas J. Cuite 4,

reprinted in New York Legislative Service, NVLS New York

City Legislative History: 1972 Local Law #1 (2010) at

unnumbered 221. In Bauch v. New York, the Court of Appeals

acknowledged that “[t]he maintenance of stability in the

relations between the city and employee organizations, as

well as the avoidance of devastating work stoppages, are

major responsibilities of the «ity administration.” 21 N.Y.2d

599, 607 (1968). The City interpreted agency shop

arrangements as furtherſing] these objectives.” Id.

See Act of Aug. 3, 1977, ch. 677, § 3, 1977 N.Y. Sess. Law

1081, 1082 (McKinney); see also O Neil & McMahon, supra

note 3, at 24 n.17. In 1992, the State amended the Taylor Law

to require agency shop arrangements for all public employees.

Abood; a full copy of the decision was included in

the bill’s official legislative history.

The City strongly supported the amendment,

urging the State Legislature that agency fees

“generate a more stable and responsible labor

relation atmosphere at the bargaining table” by

providing unions with the organizational security

necessary to resist “divisive elements — those

within and without their ranks who undermine

strikes.“ When the amendment passed, the Mayor

directed city agencies to implement agreements

with agency fees “expeditiously.”™

Within only a few years of state-wide

implementation of agency shop provisions, the rate

of strikes plummeted by well over 90% across all of

See Act of July 24, 1992, ch. 606, § 2, 1992 N.Y. Sess. Laws

1650, 1650 (McKinney); see also O'Neil & McMahon, supra

note 3, at 24 n.17.

See Bill Jacket for Act of Aug. 3, 1977, ch. 677.

38 Richard L. Rubin, Memorandum in Support (July 29, 1977),

reprinted in Bill Jacket for Act of Aug. 3, 1977, ch. 677; see

also Memorandum from Donald H. Wollett, N.Y. State Office

of Emp. Relations, to Judah Gribetz, Counsel to the Governor

(July 29, 1977), reprinted in Bill Jacket for Act of Aug. 3,

1977, ch. 677 (noting that agency shop arrangements

provideſ]l to employee organizations the organizational

security necessary for responsible collective bargaining’ ).

Admin Order (Mayor Beame) No. 38 (1977) (on file with

the New York City Law Department).

labor tranquility in ... state and local government

throughout New Vork. 28 Both workers and the

general public have benefitted.

in strikes may be complex, government employers

like New York City have good reason to conclude

% In the 15 years after the first Taylor Law came into effect

(1967-1982), there were, on average, about 20 public-sector

strikes per year in New York State. See O Neil & McMahon,

supra note 3, at 10. By contrast, between 1983 and 2006,

there were, on average, less than two per year. Id

Id.

* This mechanism is further explained in the brief of Amici

failed labor regime of the past risks a serious

regression which, as the City’s history illustrates,

would come at great cost to the public at large.

II. Petitioner and amici ignore the compelling

public interest of New York City and other

jurisdictions in avoiding disruption of

essential public services.

The history of New York Citys collective

bargaining system demonstrates that petitioner

and his amici frame the government interest in

agency fees far too narrowly. In posing the relevant

First Amendment question, petitioner

mischaracterizes the pursuit of “labor peace” under

Abood as an interest in the mere administrative

convenience of “bargaining with exclusive

representatives.“ Indeed, petitioner's brief does

not even mention strikes or other work stoppages,

when agency fees, as a matter of historical fact,

were meant to help prevent them.

This amnesia about the origin and purpose of

agency fees leads petitioner and his amici to

overlook the substantial risk of injury to the public

% See Brief for the Petitioner at 61, see also id. at 53—60.

See generally Brief Amici Curiae of Los Angeles Countys

Department of Health Services, NYC Health + Hospitals, And

Service Employees International Union Supporting

Respondents.

as a whole that can be posed by unsuccessful

public-sector labor negotiations. But these

devastating strikes prompted the City and State to

first embrace agency fees. When petitioner and his

amici reduce this interest to mere “rational basis

justification[s]” like limiting bargaining partners

and avoiding confusion, l they erase decades of

history and ignore hardships endured by millions of

City residents.

New York City’s experience also _ refutes

petitioner's assumption that the governmental

interest in labor peace is uniform nationwide. We

are a nation of many different governments—

federal, state, and local—all with widely varying

circumstances, histories, and needs that in turn

may warrant different labor relations strategies.

collectivization to securing greater benefits for public-sector

employees, he turns a blind eye to the broader public benefit

that is confirmed by history, at least for some jurisdictions.

Id. at 58-59.

Id. at 56; see also id. at 5759.

This point shows the fallacy of the blunt comparison offered

by Amicus Curiae Freedom Foundation and Economists

between states with so-called right-to-work laws and those

without them. That analysis fails to control for numerous

relevant variables, and it cannot measuie the impact of

agency fees in any particular jurisdiction or predict the

consequences of stripping them now. See Brief of the Freedom

Foundation and Economists as Amicus Curiae in Support of

the Petitioners at 6. As New York Citys experience

A constitutional rule that mandates a single

answer to the agency shop question—the practical

result of overruling Abood—is simply not workable.

A. The City’s circumstances render labor

— a particularly compelling interest

ere.

In New York City, the disruption of public

services presents an untenable risk due to the

City’s size, density, and diversity. It packs more

than eight-and-a-half million residents into its tiny

geography**—outranking fforty states“ and

standing as the nation’s most densely populated

major city. t It also hosts 600,000 commuters each

illustrates, the unique challenges faced by some government

employers, and the nature of the workforces they manage,

render agency fees an essential tool, even if they are not

uniformly necessary, or even sensible, nationwide.

See Annual Estimates of the Resident Population for

Incorporated Places of 50,000 or More, Ranked by July 1, 2016

Population: April 1, 2010 to July 1, 2016, U.S. Census Bureau

(2017), https://factfinder.census.gov/bkmk/table/1.0/en/PEP/

2016/PEPANNRSIP.US12A.

„ Population Facts, N.Y.C. Dep't of Planning, http://www.nyc

.gov/html/dcep/htm//census/pop_facts.shtm!] (last visited Dec. 6,

2017).

% Mike Maciag, Mapping the Nation’s Most Densely Populated

Cities, Governing (Oct. 2, 2013), http://www.governing.com/

blogs/by-the-numbers/most-densely-populated-cities-data-

map html.

weekday, 0 joined by over 60 million tourists each

year.‘7

Core governmental services loom large for the

City’s residents and visitors alike, leaving them

especially vulnerable to labor disruption. For

example:

e Public transportation is essential (less

than 45 percent of City households own a

car). Mass transit provides nearly nine

million rides every weekday, bringing

employees and customers to thousands of

businesses. ““

Sam Roberts, Commuters Neariy Double Manhattans

Daytime Population, Census Says, N.Y. Times: City Room

(June 3, 2013, 11:56 AM), http://cityroom.blogs.nytimes.com/

2013/06/03/commuters-nearly-double-manhattans-daytime-

population-census-says/.

„Press Release, City of N.Y., Mayor de Blasio Announces

Total NYC Visitors Surpasses 60 Million for First Time (Dec.

19, 2016), http://www 1.nyc.gov/office-of-the-mayor/news/963-

16/mayor-de-blasio-total-nyc-visitors-surpasses-60-million-

first-time.

See Physical Housing Characteristics for Occupied Housing

Units: 2011-2015 American Community Survey 5-Year

Estimates, US. Census Bureau (2017),

https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_5YR/S

2504/1600000US365 1000.

* The MTA Network, Metro. Transp. Auth., http://web.mta

.info/mta/network.htm (last visited Dec. 6, 2017).

„ Garbage collection is critical for public

health in the City’s incredibly dense

environment. The volume of residents,

visitors, and businesses in the City

produces over 21,000 tons of waste every

day—which the City employs a small

army of sanitation workers to collect.“

Without them, trash would quickly pile in

the streets—as it did in 1968.

„The City runs the largest fire and police

departments in the country.®! It also

operates the biggest single-district public

school system, 2 employing over 90,000

educators who teach a million public

school students each day.“ The

60 =6About§)«6—DSNY,_~—CON«:Y.C. Dep't of Sanitation,

http://www 1. nyc. gov/assets/dsny/about/inside-dsny.shtm! (last

visited Dec. 6, 2017).

Brian A. Reaves, U.S. Dep’t of Justice, Bureau of Justice

Statistics, Local Police Departments, 2013: Personnel, Policies,

and Practices 3 (2015), available at http://www.bjs.gov/content

/pub/pdf/ipd13ppp.pdf; Overview, N.Y.C. Fire Dep't,

https://www 1.nyc.gov/site/fdny/about/overview/overview. page

(last visited Dec. 11, 2017).

52 Enrollment, Poverty, and Federal Funds for the 100 Largest

School Districts, by Enrollment Size in 2012, U.S. Dep't of

Educ., Nat] Ctr. for Educ. Statistics (2015),

https://nces.ed.gov/programs/digest/d 1 4/tables/dt14_215.30.as

53 Dep't of Citywide Admin. Servs., New York City Gov't

Workforce Profile Report, Fiscal Year 2016 at 67 (2016),

disruption of any of these services would

have devastating consequences for City

residents.

Because of the scale and critical importance of

basic public services in the City, even relatively

small disruptions can wreak havoc.™ Less than a

week without mass transit, for example, would cost

the City economy over a billion dollars.“ A week

without garbage collection would flood the streets

with refuse, threatening a public health crisis.“

One day without teachers would squander a million

days’ worth of learning.®’ Simply put, the damage

inflicted by public-sector strikes in New York City

is too great to risk. The City therefore has an

overriding—and compelling—interest in ensuring

its collective bargaining system works.

http://www.nyc.gov/htmI/dcas/downloads/pdf/misc/workforce_

profile_report_fy_2016.pdf; Statistical Summaries, N.Y.C.

Dep't of Educ, http://schools.nyc.gov/AboutUs/schools/

data/stats/ default htm (last visited Dec. 6, 2017).

54 See supra Part I.

56 See Mike Pesca, The True Cost of the NYC Transit Strike,

NPR (Dec. 21, 2005, 12:00 AM), http://www.npr.org/templates

/story/story.php?story!d=5064612.

See supra Part I. B.

5? Cf. Statistical Summaries, supra note 61.

The City’s experience also makes plain that the

incremental benefit of agency fees does not have to

be overwhelming for them to be constitutionally

permissible. The harms of public-sector work

stoppages are often so large that even a marginal

reduction in the risk of strikes is compelling

grounds for authorizing agency fees. This is not a

theoretical justification. The City tried collective

bargaining without agency fees, and despite

employing techniques like the “government

assistance with ... dues collection” suggested by

petitioner,’ the public continued to suffer.

B. Governments’ practical need to adapt to

local circumstances points against

constitutionalizing a single approach to

public-sector labor relations.

To be sure, not all jurisdictions permit agency

fees. Petitioner and his amici paint the variety in

labor laws across the nation as evidence that such

fees are unnecessary.®°® Yet they draw precisely the

wrong conclusion. The diversity of labor laws

nationwide is reason for this Court to adhere to

Aboods flexible framework, not to abandon it.

Divergence in public-sector labor laws is the

natural result of the dramatically different

circumstances confronted by state and local

governments across the nation.

grief for the Petitioner at 42.

See, e.g., id. at 37; Brief of Amicus Curiae Mackinac Center

for Public Policy in Support of Petitioner at 27-36.

For example, while several states have laws

that prohibit agency fees (known as “right-to-work”

laws), the people in those States did not

experience the same series of strikes that New

Yorkers endured in the 1960s and 1970s. Nor do

those jurisdictions have the same “long, deep

tradition” of labor activism as New York City does,

where unions are embedded in its institutions and

its culture. Even its housing stock bears the

imprint of its vibrant labor movement, with more

than a dozen union-sponsored housing cooperatives

anchoring neighborhoods across the City.®!

Governments in “right-to-work” states, by

contrast, manage different workforces, have

endured different histories, and must satisfy

different demands. Their legislative choices thus

should not control outside their borders any more

than New York City’s approach should dictate labor

policy in Madison, Wisconsin or Fort Worth, Texas.

In short, mandating one nationwide rule on agency

fees would be deeply inconsistent with this Court’s

% Right-To-Work Resources, Nat’ Conf. of State Legislators,

(2017), http://www.ncsl.org/research/labor-and-employment/

right-to-work-laws-and-bills. aspx.

Freeman, supra note 12, at 100; David W. Chen,

Electchester Getting Less Electrical; Queens Co-op for Trade

Workers Slowly Departs From Its Roots, N.Y. Times, Mar. 15,

2004, at BI (describing union- sponsored housing cooperatives

providing nearly 50,000 apartments).

recognition that needs vary across the nation,® and

that local communities should have leeway to

promote their own health, safety, and welfare

through core labor policies.“

Varied circumstances have even led to policy

divergence among right-to-work states themselves.

Some ban _ public-sector unions altogether,™

rejecting collective bargaining as a labor

management strategy entirely. Others, however,

stop short of abandoning agency fees in all

contexts. For example, while Michigan and

Wisconsin currently prohibit agency fees for some

public-sector unions, both States exempt local

police and firefighter unions. “5 The exemptions are

necessary because, as Wisconsin’s governor put it,

n See Kelo u. City of New London, 545 U.S. 469, 482 (2005)

(“Viewed as a whole, our jurisprudence has recognized that

the needs of society have varied between different parts of the

Nation, just as they have evolved over time in response to

changed circumstances.”).

83 See Bond v. United States, 564 U.S. 211, 220-22 (2011)

(discussing the role, and virtues, of federalism).

% For example, Texas does not permit the recognition of

public-sector labor unions as bargaining agents, nor does it

allow state officials to enter into collective bargaining

contracts with public employees. Texas Gov't Code § 617.002

(2017).

85 See Mich. Comp. Laws § 423.210(4) (2017); Wis. Stat.

§§ 111.81(9), 111.845, 111.85 (2017).

there's no way we're going to put the public safety

at risk. 66

Petitioner and his amici thus mistake public

controversy for constitutional error. As this Court

has made clear, “[t]he genius of our government

provides that, within the sphere of constitutional

action, the people—acting not through the courts

but through their elected legislative

representatives—have the power to determine as

conditions demand, what services and functions the

public welfare requires.”®’ Consistent with this

principle, Abood left the “wisdom” of adopting

agency fees to voters in each State, ensuring that

no labor relations policy is frozen in place.“

Judgments about risk tolerance and the

necessity of public services necessarily differ, and

they can even change over time within individual

Mark Niquette, Walker’s Bill Gives Wisconsin Police a Pass

on Pension Payments, Bloomberg (Feb. 25, 2011, 12:00 AM),

http://www.bloomberg.com/news/articles/20 1 1-02-25/walker-

says-public-safety-means-wisconsin-cops-keep-collective-

bargaining.

87 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528,

546 (1985) (quoting Helvering v. Gerhardt, 304 U.S. 405, 427

(1938) (Black, J., concurring)).

88 Abood v. Detroit Bd. of Educ., 431 U.S. 209, 224—25 (1977).

jurisdictions.” While Abood itself concerned a

Michigan law authorizing agency fees,’ the state

has since chosen to limit the use of such fees.

That change was accomplished through state

legislation, not a constitutional rule that imposed

Michigan's choice on other communities.

New York City has a powerful interest in labor

peace because of its importance to avoiding

disruption of essential public services, precisely the

rationale that petitioner ignores. Given its unique

circumstances and history, the City reasonably

views its public services as integral to public safety

and welfare, and it accordingly extends to all public

unions the same agency shop protection that other

jurisdictions offer only to a subset of their public

workforces.

More broadly, New York City has for decades

chosen to rely on strong, stable unions as a key part

e The range of permissible policy judgments about labor

practices is remarkably broad. While most jurisdictions

prohibit public workers from striking, some States authorize

strikes by some or all government workers. See, e., Ohio

Rev. Code Ann. § 4117.14(D)(2) (2017). But the existence of

those laws does not refute the need to limit or prohibit public-

sector strikes in New York and elsewhere.

Abood, 431 U.S. at 211.

"| See, e. ., Jack Spencer, Right-to-Work Bills Pass Michigan

House, Senate, Mich. Capitol Confidential (Dec. 7, 2012),

http://www. michigancapitolconfidential.com/18028;, see also

Mich. Comp. Laws § 423.210(3)(c) (2017).

of its governance strategy, one that embraces the

provision of services to strengthen the fabric of the

City and better the lives of its residents, while also

ensuring fair treatment and protection for workers

who serve the public. While other jurisdictions may

choose a different course, this Court should not

embed that choice in a constitutional rule that

overrides New York City’s successful long-term

labor management scheme or the similar strategies

of other cities and states.

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,