# 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,
v.

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Laws 256 (repealed 1967)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

iv

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

c

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

9

— 21

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

Editorial, This Beleaguered City, N.Y.
e

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

ix

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.

r

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

xi

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).

7

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.

10

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.

11

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:

12

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.

13

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.

14

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).

15

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

16

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.

17

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.

© Similarly, when petitioner limits the advantages of
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

18

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.

19

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).

20

„ 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
p.

53 Dep't of Citywide Admin. Servs., New York City Gov't
Workforce Profile Report, Fiscal Year 2016 at 67 (2016),

21

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.

22

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.

23

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).

24

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).

25

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).

26

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).

27

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,

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 KA

*Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0755%3A76. Public record. Not legal advice.