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

Supreme Court brief2017

Ask Donna

What actually matters in this document.

Text

No. 16-1466

In The

Supreme Court of the Anited States

MARK JANUS,

Petitioner,

Vv.

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL.,

Respondents.

,’

On Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

BRIEF OF GOVERNOR TOM WOLF,

STATE AND LOCAL OFFICIALS, AND

LOCAL GOVERNMENTS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

)

SAMUEL R. BAGENSTOS

Counsel of Record

625 S. State St.

Ann Arbor, MI 48109

734-647-7584

sbagen@gmail.com

DENISE J. SMYLER

General Counsel

OFFICE OF THE GOVERNOR

COMMONWEALTH OF PENNSYLVANIA

225 Main Capitol Building

Harrisburg, PA 17120

Counsel for Governor Tom Wolf

JOSHUA CIVIN

General Counsel

MONTGOMERY COUNTY PUBLIC SCHOOLS

850 Hungerford Dr., Room 156

Rockville, MD 20850

Counsel for the Montgomer» County Public Schools

[Additional Counsel Listed On Signature Page]

COCKLE LEGAL BRIEFS (600) 225-6964

WWW COCKLELEGALBRIEFS COM

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE..............006 1

SUMMARY OF ARGUMENT? ....0........ccccccceeeeeeeeeees 6

EIT eniscsccttcisenpsnesncsiintiniotnsintinpimepibeineiniiin 9

A. Overruling Abood Would Destabilize Exist-

ing Contractual Relationships Entered into in

Reliance on that Longstanding Precedent.... 11

B. Overruling Abood Would Threaten Long-

standing First Amendment Principles That

Have Ensured That Government Employers

Can Efficiently Run Their Operations ........ 13

C. Overruling Abood Would Undermine Coop-

erative Arrangements, Achieved Through

Collective Bargaining, That Have Brought

Great Value and Efficiency to Government

BUTT, iccacséncctnntscepecenncctnibnibiinipiienibisinue 21

1. Agency-Fee Arrangements Allow Un-

ions to Take a Long-Term Approach in

Collective Bargaiming................c0ccc0cee0 22

2. Agency-Fee Arrangements Give Unions

the Incentive and Opportunity to Pro-

mote Effectiveness and Innovation in

the Delivery of Public Services ............. 28

3. Agency-Fee Arrangements Benefi: the

Public by Promoting Cooperation Be-

tween Government Employers and

BEE We aiitestansecessetssicinctntitioniinessies 34

CBU IIIEN cnccccececnevesenssnsascoccesnennsnnsussanéensonsetens 42

TABLE OF AUTHORITIES

Page

CASES:

Abood v. Detroit Board of Education, 431 U.S.

eee a passim

Borough of Duryea v. Guarnieri, 564 U.S. 379

EE Se er passim

Brooks v. NLRB, 348 U.S. 96 (1954) .............ccccccceeeeees 22

Connick v. Myers, 461 U.S. 138 (1983) ............... passim

Engquist v. Oregon Dept. of Agriculture, 553 U.S.

ENE EE 10, 21

Garcetti v. Ceballos, 547 U.S. 410 (2006)............ passim

Harris v. Quinn, 134 S. Ct. 2618 (2014)............... 16, 18

Hilton v. S. Carolina Public Railways Comm’n,

EE A eee ce a 9,13

Kimble v. Marvel Entertainment, LLC, 135 S. Ct.

ER A eee .9, 20, 21

Lane v. Franks, 134 S. Ct. 2369 (2014)................. 13, 16

Locke v. Karass, 555 U.S. 207 (2009) ..............cccccccecees 15

Michigan v. Bay Mills Indian Community, 134

TE 9

Payne v. Tennessee, 501 U.S. 808 (1991) .............000. 12

Rankin v. McPherson, 483 U.S. 378 (1987) ................ 34

Waters v. Churchill, 511 U.S. 661 (1994)................0. 10

ill

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS:

eR ccrenntencinncnprtaennenatiemmennnsiidn passim

RE TINT iarcicnireopnitinniatansanstntivestinnisiataseticenmadeiitinenteehiiaian 13

SINE TIITIIIIIITantrsssinicevecnemnciaiandemniiuedcianidtstecictanbasmnastiaieits 13

OTHER AUTHORITIES:

Agreement Between SEIU Local 500, CTW and

Board of Education of Montgomery County for

the School Years 2015-2017 art. 29 (Mar. 11,

2014), https://goo.gl/3qEeHp......................cccceeeeeeeees 40

American Federation of Teachers and National

Education Association, Peer Assistance & Peer

Review A3 (1998), https://goo.gi/djpjvj.................... 40

Michael Ash & Jean Ann Seago, The Effect of Reg-

istered Nurses’ Unions on Heart-Attack Mor-

tality, 57 Indus. & Lab. Rel. Rev. 422 (2004).......... 32

Allyne Beach & Linda Kaboolian, Working Better

Together: A Practical Guide for Union Leaders,

Elected Officials and Managers to Improve

ee OID GP ntcecensersnnnsnsscenssxnsnmtaenssnscrnncend 30

Breakfast Club Action Group, SDEA Can Do

ee i SE ersinecsncccinnniinnnindtenmaiasinncens 24

Ohio Council 8, Local 7, and City of Toledo, 2011-

2014, https://goo.gl/YPH7SH....................ccccceeeeeeeeees 27

TABLE OF AUTHORITIES — Continued

Department of Education, Shared Responsibil-

ity: A U.S. Department of Education White Paper

on Labor-Management Collaboration (May 2012),

https://goo.gl/ogaGNg...............cccccccccceeeeeeeeeeeeeeees

Berger DuMound, Berea Teachers, Administra-

tors Contracts See No Base Pay Increases,

Cleveland.com (Apr. 11, 2013), https://goo.gl/

i eeeriisptebaieiitavinarrnnicgninsitgianenninptinatpidéniapinnes

Larry Ferlazzo, Creating a Culture of Improve-

ment With Peer Assistance & Review (PAR), Educ.

Week, Feb. 1, 2013, https://goo.gi/ptEvjB ..........

Marc Fisher, A School That Works by Working

Together, Wash. Post, Jan. 8, 2009, https://goo.

GAO, Federal Labor Relations: A Progrum in

Need of Reform (July 1991)..............ccccccceeeeeeeeees

GAO, Postal Service: Labor-Management Prob-

lems Persist on the Workroom Floor (Sept.

BED cocsesvecsvessenvesessensseeesnncsenssnesemenemmassemnesspeeavesse

Ryan Ghizzoni, Economic Turbulence in the Econ-

omy Impacts District, Inspiring Excellence,

Winter 2004, at 1, https://goo.gl/xEQz3 ..........

Annie Gowen, Initiative Aims to Give Broad

Acres New Direction, Wash. Post, Aug. 30,

DED enensenssemmmensemmmeenaseenaseenmeermeemamnssveunerescenseces

Eunice Han, The Myth of Unions’ Overprotection

of Bad Teachers: Evidence from the District-

Teacher Matched Panel Data on Teacher Turn-

over (Feb. 27, 2016), https://goo.gi/n18Zuy ........

TABLE OF AUTHORITIES — Continued

Harvard Graduate School of Education, A User’s

Guide to Peer Assistance and Review, https://

I iiarcniteitniesinininmenentinanintiitenneimteceds 38, 39

Health Care Cost Containment Board, https://

IE chichscicitinsiniadennianiiniitiidutsinentianaiinadinmann 26

Frederick M. Hess, The Cage-Busting Teacher

Sian e iscusessisiscestivesteteieecciasataiibatigbanalbiiaainaliipdalabamtedpiainiateed 38

Susan Moore Johnson et al., Teacher to Teacher:

Realizing the Potential of Peer Assistance and

Review (May 2010), https://goo.gi/Sqh4YZ.............. 40

Jeffrey Keefe, Public Employee Compensation

and the Efficacy of Privatization Alternatives

in US State and Local Governments, 50 Brit.

- 2 8 EES SCE SENS aa 30

King County Dept. of Natural Resources & Parks,

Wastewater Treatment Div., Productivity Ini-

tiative: Internal Comprehensive Review Re-

EE nteskinrtereinscercinneinianatiinbesetsienninnitediinaseninens 26

Martin H. Malin, Education Reform and Labor-

Management Cooperation, 45 U. Tol. L. Rev.

SERRE RESPIR SES re reine 39

Geoff Marietta, The Unions in Montgomery

County Public Schools (2011), https://goo.gl/

TABLE OF AUTHORITIES - Continued

Page

Moshe Marvit & Leigh Anne Schriever, Members-

only Unions: Can They Help Revitalize Work.

place Democracy? (Oct. 1, 2015), https://guo.gl/

ERO CREE RIT SEAS etebvininnsasnsd 23

Montgomery County Public Schools, Teacher-

Level Professional Growth System Handbook

Ne EEA TORRE 38

Mark L. Movsesian, Severability in Statutes and

Contracts, 30 Ga. L. Rev. 41 ES 11

Saul A. Rubinstein & John E. McCarthy, Teachers

Unions and Management Partnerships: How

Working Together Improves Student Achieve-

ment (Mar. 25, 2014), https://goo.g/3WYHkg......... 34

San Diego Education Association, 1,000+ March

Against Education Cuts and Layoffs (May 3,

2012), https://goo.gVeMafsA...0..... cc. 23

San Diego Education Association, An Important

Letter from the SDEA Board of Directors (June

19, 2012), https://goo.gl/7NzSK7............................. 24

Secretary of Labor’s Task Force on Excellence in

State and Local Government Through Labor-

Management Cooperation, Working Together

for Public Service (1996), https-//goo.gi/519s8K......... 29

Mark Simon, Transformation at Broad Acres El-

ementary (2007), https://goo.g/jNnDwa........... 36, 37

Fran Spielman, Emanuel Adjusts Garbage Grid

to Save $7M Before Imposing Fee, Chicago Sun-

Times, Sept. 6, 2015, https://goo.g/X26Wfn .....31, 32

vil

TABLE OF AUTHORITIES — Continued

Time to Celebrate Big, Broad Jumps in Test

Scores, Wash. Post, Jume 3, 2004 ..............c.cccccceeeees 37

Christine Vestal, King County’s Wellness Plan

Beats the Odds, Stateline, July 22, 2014,

https://goo.gV/uSHWHE....................ccccceceeceseeeeceeeeeess 27

WestEd, Labor-Management Collaboration in Ed-

ucation: The Process, the Impact, and the Pro-

spects for Change (2013), https://goo.g/C6qjxW ....... 34

Jeffrey Zax & Casey Ichniowski, The Effects of

Public Sector Unionism on Pay, Employment,

Department Budgets, and Municipal Expend-

itures, in When Public Sector Workers Union-

ize (Richard B. Freeman & Casey Ichniowski,

ig ei iccanettinishnincaciedicicabindattinsisdattattiieliinsninseciess 28

A.L. Zwerdling, The Liberation of Public Em-

ployees: Union Security in the Public Sector,

17 B.C. L. Rev. 993 (1976) ..............cccccccccesseseeseeeeeees 22

INTEREST OF THE AMICI CURIAE'

Amici are Pennsylvania Governor Tom Wolf, other

elected state and local officials, and local governments.

Each of the Amici, or the government bodies to which

they are elected, engages in collective bargaining with

unions chosen by their workers. Amici represent urban

centers, suburbs, and rural jurisdictions from a total of

16 states across the country.

Amici are concerned that a decision to overrule

Abood v. Detroit Board of Education, 431 U.S. 209

(1977), will seriously harm their interests by: (1) desta-

bilizing existing contractual relationships, leading to

legal challenges and demands for renegotiation; (2) un-

dermining the stability of this Court’s public employee

speech jurisprudence, and particularly those aspects of

that jurisprudence that the Court has specifically

crafted to protect the interest in the effective delivery

of public services; and (3) undermining cooperative

labor-management arrangements that have led to ef-

fective and innovative service delivery for Amici and

other government entities. Amici therefore urge this

Court to leave Abood intact.

! No counsel for a party authored this brief in whole or in

part, and no party or counsel for a party made a monetary contri-

bution intended to fund the preparation or submission of this

brief. No person other than Amici or their counsel made a mone-

tary contribution to its preparation or submission. Letters from

the parties providing blanket consent for the filing of Amicus

briefs in this matter have been filed with the Clerk of this Court.

Amici are:

Cities and Counties:

City of Sacramento, CA

City of Santa Monica, CA

County of Santa Clara, CA

City of Hartford, CT

City and County of Honolulu, HI

Montgomery County, MD

Prince George’s County, MD

City of Minneapolis, MN

City of St. Paul, MN

City of Jersey City, NJ

City of Santa Fe, NM

City of Athens, OH

City of Belpre, OH

City of Campbell, OH

City of Columbus, OH

City of Dayton, OH

Lucas County, OH

City of Pittsburgh, PA

City Council of the City of Harrisburg, PA

County of Allegheny, PA

School Districts:

Alameda Unified School District, Alameda, CA

Chula Vista Elementary School District, Chula

Vista, CA

Rincon Valley Union School District, Santa Rosa, CA

San Diego Unified School District, San Diego, CA

Sweetwater Union High School District, Chula

Vista, CA

Montgomery County Public Schools, Montgomery

County, MD

Pine Island Public Schools, Pine Island, MN

State Officials:

Tom Wolf, Governor, Commonwealth of Pennsylvania

Joseph M. Torsella, Treasurer, Commonwealth of

Pennsylvania

Eugene A. DePasquale, Auditor General, Common-

wealth of Pennsylvania

Chris Tuck, Majority Leader, Alaska House of

Representatives

Peter Wirth, Majority Leader, New Mexico State

Senate

Bill Wielechowski, State Senator, Alaska

Mich:ael C. D’Agostino, State Representative, State

of Connecticut

Local Officials:

Jesse Arreguin, Mayor, Berkeley, CA

Ryan Coonerty, Supervisor, Santa Cruz County, CA

Robert Garcia, Mayor, Long Beach, CA

Kevin McKeown, City Councilmember, Santa Monica,

Pam O’Connor, City Councilmember, Santa Monica,

Rochelle Pardue-Okimoto, Mayor Pro Tem, El Cerrito,

Mary Casillas Salas, Mayor, Chula Vista, CA

Tim Sandoval, Mayor, Pomona, CA

Michael Tubbs, Mayor, Stockton, CA

Michael E. Passero, Mayor, New London, CT

Gerald Bustos, Sheriff, Rock Island County, IL

Louisa Ewert, Treasurer, Rock Island County, IL

Kelly Fisher, County Recorder, Rock Island County,

Deborah Frank Feinen, Mayor, Champaign, IL

Kyle Freeman, Superintendent, Washington Com-

munity High School District 308, Washington, IL

Mark Kern, Chairman, St. Clair County Board, IL

Diane Marlin, Mayor, Urbana, IL

Don Moran, Member, County Board, Will County,

Thomas McNamara, Mayor, Rockford, IL

Amy M. Meyer, County Recorder, Madison County,

April Palmer, County Auditor, Rock Island County,

Cindy Svanda, Circuit Clerk, Jackson County, IL

Jacqueline Traynere, Member, County Board, Will

County, IL

Mark Von Nida, Circuit Clerk, Madison County, IL

Tammy R. Weickert, Clerk of Court, Rock Island

County, IL

Brandon Zanotti, State’s Attorney, Williamson

County, IL

Kevin Kamenetz, County Executive, Baltimore

County, MD

Thomas M. McGee, Mayor, Lynn, MA

Martin J. Walsh, Mayor, Boston, MA

John J. Choi, County Attorney, Ramsey County,

Rafael Ortega, Commissioner, Ramsey County, MN

Victoria Reinhardt, Commissioner, Ramsey County,

James Carley, Board Member, Keene School

District, Keene, NH

Joyce Craig, Mayor, Manchester, NH

Michael Williams, Board Member, Oyster River

Cooperative School District, Durham, NH

Daniel Barrone, Mayor, Town of Taos, NM

Isaac Benton, City Councilor, Albuquerque, NM

Cynthia Borrego, City Councilor, Albuquerque, NM

Pat Davis, City Councilor, Albuquerque, NM

Diane Gibson, City Councilor, Albuquerque, NM

Jerry Hogrefe, Sheriff, Taos County, NM

Timothy M. Keller, Mayor, Aibuquerque, NM

Debbie O’Malley, Commissioner, Bernalillo County,

Klarissa J. Pefia, City Councilor, Albuquerque, NM

Steven Michael Quezada, Commissioner, Bernalillo

County, NM

Ken Sanchez, President, City Council, Albuquerque,

Maggie Hart Stebbins, Commissioner, Bernalillo

County, NM

Chumi Diamond, City Council Vice President,

Long Beach, NY

Anthony Eramo, City Council President, Long

Beach, NY

Scott Mandel, City Councilmember, Long Beach, NY

Sam Oliverio, Supervisor, Town of Putnam, NY

Mark C. Poloncarz, County Executive, Erie County, NY

Brian Pugh, Mayor, Village of Croton, NY

Linda D. Puglisi, Supervisor, Town of Cortlandt,

Rich Schaffer, Supervisor, Town of Babylon, NY

Ronald P. McDougall, Mayor, Village of Gouver-

neur, NY

Lovely A. Warren, Mayor, Rochester, NY

Carol Contrada, Commissioner, Lucas County, OH

Pete Gerken, Commissioner, Lucas County, OH

Darren LeBrun, County Engineer, Scioto County, OH

Steve Patterson, Mayor, Athens, OH

Tina Skeldon Wozniak, Commissioner, Lucas County,

Kathi Cozzone, Commissioner, Chester County, PA

Kathy Dahlkemper, County Executive, Erie County,

Kyle W. Foust, County Council Chair, Erie County,

George P. Hartwick, III, Commissioner, Dauphin

County, PA

Linda McClosky Houck, Council Member, Luzerne

County, PA

Ted Kopas, Commissioner, Westmoreland County, PA

Kenneth M. Kraft, Council President, Northampton

County, PA

Kevin Madden, Council Member, Delaware County,

Lamont McClure, County Executive, Northampton

County, PA

Joe Schember, Mayor, Erie, PA

Alan Vandersloot, Member, Borough Council, West

York, PA

Brian Zidek, Council Member, Delaware County, PA

Angela Forkum, Member, City Council, Hoquiam, WA

Steve Williams, Mayor, Huntington, WV

SUMMARY OF ARGUMENT

Overruling Abood v. Detroit Board of Education,

431 U.S. 209 (1977), would threaten significant inter-

ests of Amici and other government employers. First,

government agencies have directly relied on Abood in

entering into collective bargaining agreements with

agency fee provisions. A decision to overrule Abood

may require the renegotiation of those agreements,

threaten renewed labor strife, and divert the attention

of officials from the delivery of public services to

restructuring their previously settled bargaining rela-

tionships with their employees. Such disruption is pre-

cisely what this Court’s doctrine of stare decisis seeks

to avoid.

Overruling Abood would have unsettling conse-

quences for the legal regime that governs Amici and

other government agencies as well. A decision to over-

rule Abood could throw into doubt this Court’s rulings

limiting the First Amendment rights of government

workers to instances in which those workers speak as

citizens on matters of public concern. That limitation,

the Court has repeate ‘ly explained, serves the im-

portant interest in ensuring the efficient and effective

delivery of public services — an interest that is of par-

ticular salience when the government acts as em-

ployer. Amici and other government agencies thus

are deeply concerned to preserve the stability of this

Court’s public-employee speech jurisprudence. To over-

rule Abood, however, the Court would have to hold that

collecting money from government workers to finance

the negotiation and administration of agreements in-

volving the terms and conditions of employment vio-

lates the First Amendment. Such a holding would

threaten to dissolve the important distinction between

speech-as-a-citizen and speech-as-an-employee on

which the Court’s public-employee speech doctrine

rests. Stare decisis is designed to prevent this sort of

doctrinal unraveling.

Finally, overruling Abood would threaten im-

portant joint labor-management projects that have

improved the effective delivery of services. Agency fees

create financial security that makes it less likely that

a union’s concerns for its own solvency will inhibit it

from agreeing to unpopular concessions to advance the

long-term interests of employees, governments, con-

stituents, and the public good.

Without agency fee arrangements, unions have an

incentive to take hard line positions and pick battles

to constantly prove their mettle to their members. In

these circumstances, unions face greater pressure to

respond to the loudest, most strident voices within

their membership, even if those voices do not represent

the long-term interests of the membership, the govern-

ment, or the community as a whole. Amici and other

government agencies have benefited by having strong

and stable negotiating partners who can take such a

long-term approach. As a result, their governments

have found it easier to respond to tight budgetary en-

vironments and implement innovative programs that

benefit the taxpayers. These efforts have relied cru-

cially on unions with the time and staffing to engage

in long-term partnerships to promote innovation. They

have also relied on functioning grievance-arbitration

systems. These are the very capacities that agency fees

make possible. If this Court were to overrule Abood, it

would threaten the gains that Amici and other govern-

ment agencies have made by working jointly with their

unions to improve the delivery of public services.

ARGUMENT

Petitioner asks this Court to overrule Abood v. De-

troit Board of Education, 431 U.S. 209 (1977). “Over-

ruling precedent is never a small matter.” Kimble v.

Marvel Entertainment, LLC, 135 S. Ct. 2401, 2409

(2015). Overruling Abood would be inconsistent with

this Court’s doctrine of stare decisis, which the Court

has described as “‘a foundation stone of the rule of

law.’” Id. (quoting Michigan v. Bay Mills Indian Com-

munity, 134 S. Ct. 2024, 2036 (2014)).

Government employers — including the Amici who

have joined this brief — have a strong interest in the

stability of current First Amendment doctrine in the

public employment context. A decision to overrule Abood

would significantly unsettle both the law and the on-

the-ground arrangements that public employers and

their workers have created in reliance on that law.

“Stare decisis has added force when the legislature, in

the public sphere, and citizens, in the private realm,

have acted in reliance on a previous decision, for in this

instance overruling the decision would dislodge settled

rights and expectations or require an extensive legis-

lative response.” Hilton v. S. Carolina Public Railways

Comm'n, 502 U.S. 197, 202 (1991).

Amici, like hundreds if not thousands of govern-

ment agencies throughout the Nation, have entered

into collective bargaining agreements with agency-fee

provisions. They have done so in reliance on Abood.

These agreements, and the strong, stable bargaining

representatives they have fostered, have promoted

the efficient delivery of services while avoiding need-

less costs to the taxpayer. They have thus served the

very government interests that this Court has deter-

mined to be particularly significant in the context of

public employee speech. See Engquist v. Oregon Dept.

of Agriculture, 553 U.S. 591, 598 (2008) (““The govern-

ment’s interest in achieving its goals as effectively and

efficiently as possible is elevated from a relatively sub-

ordinate interest when it acts as sovereign to a signif-

icant one when it acts as employer.’”) (quoting Waters

v. Churchill, 511 U.S. 661, 675 (1994) (plurality opin-

ion)).

Overruling Abood would pull the rug out from un-

der these government agencies. It could undermine

the stability of their operations and budgets by forc-

ing them immediately to renegotiate collective bar-

gaining agreements. It would unsettle key conceptual

underpinnings of First Amendment doctrine that have

ensured that governments can manage their opera-

tions without facing lawsuits from employees who ob-

ject to being told what to say on the job. And it would

put at risk the significant benefits that government

employers have reaped — for their budgets and for the

delivery of effective public services — by working with

the stable union partners, with a long-term focus, that

agency-fee arrangements make possible. This Court

should thus decline Petitioner’s invitation to overrule

Abood.

A. Overruling Abood Would Destabilize Exist-

ing Contractual Relationships Entered into

in Reliance on that Longstanding Precedent

If this Court were to declare it unconstitutional to

collect agency fees from employees who are not union

members, Amici would be forced to stop collecting

those fees immediately. But refusing to collect agency

fees may itself violate the collective bargaining agree-

ments Amici signed in reliance on Abood. Amici thus

would be forced immediately to confront the question

whether those agreements remained valid and binding

in the absence of their agency-fee provisions. Answer-

ing that question would likely be complex. It would in-

volve interpretation of severability clauses that appear

in the agreements themselves, as well as of back-

ground state-law principles of severability in contract

law. Because most unions would likely take the position

that they made significant concessions to obtain the

agency-fee provisions, Amici would confront significant

uncertainty regarding whether their collective bar-

gaining agreements would stand following a decision

overruling Abood. See Mark L. Movsesian, Severability

in Statutes and Contracts, 30 Ga. L. Rev. 41, 43-44

(1995) (describing complexity of the severability in-

quiry under contract law).

A decision to overrule Abood thus could force

Amici and other government agencies immediately to

renegotiate their collective bargaining agreements.

The ensuing discussions would likely be complicated

and contentious, as unions sought to renegotiate long-

settled terms in light of the new economic reality.

Those negotiations would create the opportunity for re-

newed labor tensions, strike threats, and work stop-

pages that would disrupt government’s mission of

providing needed services to the public.

As we show below, the absence of agency fees will

force unions to focus on demonstrating short-term

gains for the workers to retain their allegiance; the re-

sult will be to amplify the loudest, most disputatious

voices at the bargaining table. See pp. 22-23, infra.

Amici may thus be unable to conclude new collective

bargaining agreements should this Court overrule

Abood. And even if they could ultimately reach agree-

ment, the renegotiation process would divert their at-

tention from other pressing business.

These unsettling and costly consequences high-

light the reliance that Amici and other government

agencies have placed on Abood. This Court has long af-

firmed that “|clonsiderations in favor of stare decisis

are at their acme in cases involving property and con-

tract rights, where reliance interests are involved.”

Payne v. Tennessee, 501 U.S. 808, 828 (1991). The strong

reliance interests that Amici have in the stability of

Abood, reflected in entrenched contractual relationships,

provide ample reason to adhere to that longstanding

precedent.

B. Overruling Abood Would Threaten Longstand-

ing First Amendment Principles That Have

Ensured That Government Employers Can

Efficiently Run Their Operations

Overruling Abood would have unsettling effects

that extend well beyond collective bargaining. To over-

rule Abood, the Court will have to conclude that charg-

ing agency fees as permitted by that case impinges on

the protected speech of government employees. But

any such conclusion would “throw into doubt previous

decisions from this Court” outside of the union context,

a fact that counsels in favor of adhering to precedent.

Hilton, 502 U.S. at 203.

In its public-employee speech cases, this Court has

consistently distinguished between speech by gove~n-

ment workers in their capacities as citizens and speech

by those workers in their capacities as employees. In

Borough of Duryea v. Guarnieri, 564 U.S. 379, 386

(2011), the Court reaffirmed its longstanding view that

“lwlhen a public employee sues a government em-

ployer under the First Amendment’s Speech Clause,

the employee must show that he or she spoke as a cit-

izen on a matter of public concern,” and it held that the

same speech-as-a-citizen test applies to the Petition

Clause, see id. at 397-399. And in Garcetti v. Ceballos,

547 U.S. 410, 421 (2006), the Court held “that when

public employees make statements pursuant to their

official duties, the employees are not speaking as citi-

zens for First Amendment purposes.” See also Lane v.

Franks, 134 S. Ct. 2369, 2378 (2014) (explaining that

“Garcetti distinguished between employee speech and

citizen speech” and that it is “speech as a citizen” that

“may trigger protection”).

The constitutional distinction between speech-as-

a-citizen and speech-as-an-employee serves important

interests of government employers. “Government em-

ployers, like private employers, need a significant de-

gree of control over their employees’ words and actions;

without it, there would be little chance for the efficient

provision of public services.” Garcetti, 547 U.S. at 418.

If every statement government workers made — or

grievance they filed — regarding the terms and condi-

tions of employment constituted protected speech,

managerial discretion would disappear. The Court ex-

plained this point in the context of the First Amend-

ment’s Petition Clause in Duryea, but the analysis

applies just as well to the Speech Clause:

Unrestrained application of the Petition Clause

in the context of government employmeat

would subject a wide range of government op-

erations to invasive judicial superintendence.

Employees may file grievances on a variety

of employment matters, including working

conditions, pay, discipline, promotions, leave,

vacations, and terminations. See Brief for Na-

tional School Boards Association as Amicus

Curiae 5. Every government action in re-

sponse could present a potential federal con-

stitutional issue.

Borough of Duryea, 564 U.S. at 390-391. The result

would be to “raise serious federalism and separation-

of-powers concerns,” as well as “consume the time and

attention of public officials, burden the exercise of le-

gitimate authority, and blur the lines of accountability

between officials and the public.” Jd. at 391. By “‘con-

stitutionalizling] the employee grievance,’” Garcetti,

547 U.S. at 420 (quoting Connick v. Myers, 461 U.S. 138,

154 (1983)), a rule eroding the distinction between

speech-as-a-citizen and speech-as-an-employee would

disregard the careful compromises and accommoda-

tions to government interests reflected in the many

statutory enactments protecting public workers. See

Borough of Duryea, 564 U.S. at 392.

This Court’s public-employee speech jurispru-

dence aims specifically to protect the managerial pre-

rogatives of government entities like Amici. Needless

to say, Amici thus have a strong interest in the stability

of that jurisprudence. Abood, and the many cases im-

plementing it, are built on the same distinction be-

tween speech-as-a-citizen and speech-as-an-employee

that undergirds cases like Garcetti and Borough of

Duryea. Abood allowed the union to use agency fees

to finance activities such as “collective-bargaining, con-

tract administration, and grievance-adjustment,”

Abood, 431 U.S. at 232 — matters that involve direct

dealings between the government and its workers as

employees, not citizens. But it did not allow the union

to use agency fees “to contribute to political candidates

and to express political views unrelated to its duties as

exclusive bargaining representative,” id. at 234 — quin-

tessential acts of speech-as-a-citizen. See also Locke v.

Karass, 555 U.S. 207, 210 (2009) (allowing the collec-

tion of agency fees to finance activities that are

“appropriately related to collective bargaining rather

than political activities”).

In a footnote in Harris v. Quinn, 134 S. Ct. 2618

(2014), the Court questioned the degree to which

Abood tracked the broader jurisprudence of public em-

ployee speech. The Court said that it did “not doubt

that a single public employee’s pay is usually not a

matter of public concern. But when the issue is pay for

an entire collective-bargaining unit involving millions

of dollars,” the Court observed, “that matter affects

statewide budgeting decisions.” Harris, 134 S. Ct. at

2642 n.28. See also Pet. Br. 12-15. That may be true,

but it is hardly enough to transform the activities fi-

nanced by agency fees into speech-as-a-citizen under

this Court’s existing First Amendment cases.

Even if “commentiary|” to “the public at large”

about state budget matters would constitute speech-

as-a-citizen on a matter of public concern, cf. Lane, 134

S. Ct. at 2380 (internal quotation marks omitted), rais-

ing these issues directly with the employer through

collective bargaining, contract administration, and

grievance adjustment does not. Public employee

speech made through an internal grievance or bargain-

ing process does not become speech-as-a-citizen simply

because, it “could, in different circumstances, have

been the topic of a communication to the public that

might be of general interest.” Connick, 461 U.S. at 148

n.8. See Borough of Duryea, 564 U.S. at 398 (public em-

ployee speech and petitioning is not protected unless it

“seek|s| to communicate to the public or to advance a

political or social point of view beyond the employment

context”). See also Connick, 461 U.S. at 147 (protection

of public-employee speech depends not just on its “con-

tent” but on its “form” and “context”).

Moreover, the contractual requirement to pay an

agency fee does not in any way stem from fee-payers’

out-of-work life as citizens. That obligation owes its

entire existence to their status as employees. That fact

in itself suffices, under the Court’s public-employee

speech precedent, to show that the agency fee does not

violate the First Amendment. See Garcetti, 547 U.S. at

421-422 (“Restricting speech that owes its existence to

a public employee’s professional responsivilities does

not infringe any liberties the employee might have en-

joyed as a private citizen.”). To the extent that payment

of an agency fee is speech, therefore, it is speech-as-an-

employee — even if an out-of-work public statement

about the matters financed by agency fees might be

speech-as-a-citizen.

In any event, agency fees finance a number of ac-

tivities that necessarily relate to work-focused matters

that center on particular employees. The most notable

example is grievance adjustment. This Court’s agency-

fee decisions have long treated employee grievances as

a paradigm case in which nonmembers can be required

to pay their fair share of union expenses. See Abood,

431 U.S. at 232. Correlatively, this Court’s public-

employee speech cases have long treated those griev-

ances as a paradigm case involving conduct that does

not receive protection as speech by a citizen on a mat-

ter of public concern, see Borough of Duryea, 564 U.S.

at 390-391; Garcetti, 547 U.S. at 420; Connick, 461 U.S.

at 154. See also Borough of Duryea, 564 U.S. at 408

(Scalia, J., concurring in the judgment in part and dis-

senting in part) (“A union grievance is the epitome of a

petition addressed to the government in its capacity as

the petitioner’s employer.”). Highlighting the conflict

between their position and this entrenched precedent,

Petitioner specifically argues that internal grievances

by public employees do receive First Amendment pro-

tection. Pet. Br. 14-15.

Even if it were limited to collective bargaining, the

distinction hinted at in the Harris footnote would not

provide public employers with the certainty they need

in going about their daily affairs. This Court has held

that matters involving disputes between government

employees and their employers over garden-variety

workplace questions do not constitute speech-as-a-

citizen even if they “are related to an agency’s efficient

performance of its duties.” Connick, 461 U.S. at 148.

And the Harris footnote seemed to agree — at least if a

sufficiently small number of employees were involved.

See Harris, 134 S. Ct. at 2642 n.28 (taking as given

“that a single public employee’s pay is usually not a

matter of public concern”). But there is no principled

way to determine how many employees must be in-

volved before their grievances become constitutionally

protected: Ten? A hundred? A thousand? Twenty thou-

sand? Cf. Harris, 1348S. Ct. at 2646 (Kagan, J., dissent-

ing) (noting that the “total workforce” at issue in that

case “exceed|ed] 20,000”). This uncertainty will inhibit

public employers from taking the vigorous and decisive

action that is often necessary in the efficient

management of an enterprise’s day-to-day affairs. Un-

certainty of this sort breeds constitutional litigation,

which “itself may interfere unreasonably with both the

managerial function (the ability of the employer to con-

trol the way in which an employee performs his basic

job) and with the use of other grievance-resolution

mechanisms, such as arbitration, civil service review

boards, and whistle-blower remedies, for which em-

ployees and employers may have bargained or which

legislatures may have enacted.” Garcetti, 547 U.S. at

449.

But there is more. Even when a public employee

speaks as a citizen on a matter of public concern, this

Court’s cases allow the government employer to re-

strict that speech to serve “the government’s interest

in the effective and efficient fulfillment of its responsi-

bilities to the public.” Connick, 461 U.S. at 150. Abood

itself noted that public employers agree to agency-fee

arrangements precisely to serve their important man-

agerial interests. See Abood, 431 U.S. at 224. And as

the balance of this brief demonstrates, see Section C,

infra, Amici have found that agency-fee arrangements

play a crucial role in facilitating the effective and effi-

cient delivery of public services. If this Court were to

overrule Abood, it would have to disregard those key

interests and thus undermine the established princi-

ple that the government’s managerial interests must

be weighed in the balance when public employers re-

strict the speech of their workers.

Abood thus “is not the kind of doctrinal dinosaur

or legal last-man-standing for which [this Court]

sometimes depart|s) from stare decisis.” Kimble, 135

S. Ct. at 2411. “To the contrary, the decision’s close re-

lation to a whole web of precedents means that revers-

ing it could threaten others.” Jd. If this Court were to

overrule Abood, one would be hard-pressed to explain

why public employees are not protected by the First

Amendment when they engage in activities related to

bargaining and contract administration, such as filing

garden-variety grievances against their employers.

However, as Borough of Duryea explained, such griev-

ances are paradigmatic examples of speech-as-an-

employee, which this Court’s cases have refused to

protect lest government agencies be hamstrung in

their efforts to deliver services efficiently. See Borough

of Duryea, 564 U.S. at 390-392. See also id. at 407

(Scalia, J., concurring in the judgment in part and dis-

senting in part) (“When an employee files a petition

with the government in its capacity as his employer,

he is not acting ‘as [a] citize[n] for First Amendment

purposes,’ because ‘there is no relevant analogue to

[petitions] by citizens who are not government employ-

ees.’”) (quoting Garcetti, 547 U.S. at 423-424). Notably,

neither the Petitioner nor the Solicitor General so

much as cite this Court’s decision in Borough of

Duryea.

If this Court were to hold that public employees

have a First Amendment interest in avoiding being

charged for the administration of such grievances —

which it would have to do to overrule Abood — that

holding would threaten to unravel the key conceptual

underpinning of the public employee speech doctrine.

That would place Amici at risk of uncertain liabilities

and undermine the important governmental interests

in the efficient delivery of public services that Borough

of Duryea, Garcetti, and Connick were specifically

crafted to protect. Given these risks, the Court cer-

tainly should not “unsettle stable law.” Kimble, 135

S. Ct. at 2411.

C. Overruling Abood Would Undermine Cooper-

ative Arrangements, Achieved Through Col-

lective Bargaining, That Have Brought Great

Value and Efficiency to Government Employers

In addition to unsettling the legal obligations of gov-

ernment employers under existing collective bargain-

ing agreements and this Court’s First Amendment law,

a decision to overrule Abood would undermine many

valuable instances of effective, cooperative collective

bargaining. These instances of labor-management co-

operation have served the interest in efficient delivery

of public services that this Court has recognized as an

important counterweight to employee speech interests.

See Engquist, 553 U.S. at 598; Connick, 461 U.S. at 150.

And they would not have happened without the strong

and stable unions, who can take a long-term approach

in collective bargaining, that agency fees make possi-

ble.

1. Agency-Fee Arrangements Allow Unions

to Take a Long-Term Approach in Collec-

tive Bargaining

In negotiating collective bargaining agreements,

unions often face difficult choices between the short-

and long-term goals of their members and other em-

ployees. When budgets are tight, governments may ask

unions to sacrifice important short-term interests

without any clear offsetting benefit other than preserv-

ing the ability to provide necessary services. Agency-

fee arrangements make collective bargaining more

effective by giving unions the stability to make difficult

agreements that may be unpopular but are in the long-

term interests of employees and the entire community.

Disallowing agency-fee arrangements vastly in-

creases the leverage of dissident factions over the en-

tire bargaining unit’s behavior. Rather than organizing

for the next election, these factions can now threaten

an immediate loss of funds by discontinuing their

membership. Cf. Brooks v. NLRB, 348 U.S. 96, 100

(1954) (a union’s bargaining rights are insulated from

a competing union’s challenge for one year so that the

union is not “under exigent pressure to produce hot-

house results or be turned out”). Such membership in-

stability discourages unions from agreeing to hard

choices and instead creates an incentive to take hard-

line positions, press borderline grievances, and even

demonize government leadership to “demonstrate

that they can ‘get something’ for their members.” A.L.

Zwerdling, The Liberation of Public Employees: Union

Security in the Public Sector, 17 B.C. L. Rev. 993, 1012

(1976) (internal quotation marks omitted).

For example, the regime governing federal em-

ployee labor relations — which does not allow agency

fees — has bred an adversarial and litigious environ-

ment in which unions have the incentive to “concen-

trate on the problems raised by ‘malcontents.’” See

GAO, Federal Labor Relations: A Program in Need of

Reform 33 (July 1991). See also GAO, Postal Service:

Labor-Management Problems Persist on the Workroom

Floor (Sept. 1994). The same dynamic can be seen in

states where agency fees are banned. E.g., Moshe

Marvit & Leigh Anne Schriever, Members-only Unions:

Can They Help Revitalize Workplace Democracy?

(Oct. 1, 2015) (members-only unions — “located [pre-

dominately where] legal conditions ... such as right-

to-work laws make it difficult to organize a majority

union” — have adversarial relationships with employ-

ers), https://goo.g/anQMSf.

In contrast, unions with agency fee arrangements

can work with government employers to reach neces-

sary but hard agreements — even in the face of vocal

opposition within the bargaining unit.

Recent events in San Diego Unified School District

(SDUSD) — one of the Amici — provide an example. In

March 2012, to deal with the ongoing impact from the

recession, the SDUSD School Board took a painful but

unanimous vote to lay off 1,656 teachers. The move

prompted an outcry from some local school employees.

See San Diego Education Association, 1,000+ March

Against Education Cuts and Layoffs (May 3, 2012),

https://goo.gV/eMafsA. Local union leaders kept talking

to the district, challenging its proposed budget while

explaining the severity of the problem to school em-

ployees. The union leaders’ efforts to cooperate faced

bitter resistance from vocal dissenting factions.

SDUSD and the union, however, had an agency-fee

arrangement in place.

Ultimately, the union agreed to various conces-

sions, including furlough days and deferred raises, in

exchange for reduced layoffs and other measures. San

Diego Education Association, An Important Letter from

the SDEA Board of Directors (June 19, 2012), https://

goo.gl/7NzSK7. Although the deal was ratified, one-third

of union members voted to reject it. That fall, union

leaders faced an unsuccessful recall petition charging

that they had replaced “strong union organizing tar-

geting the District” with “‘collaboration.’” Breakfast

Club Action Group, SDEA Can Do Better (Sept. 30,

2012).

As this example illustrates, under an agency fee

arrangement, dissenting employees have the freedom

to speak out. If they convince a majority of their peers,

they can reject an agreement, replace leadership, or de-

certify the union. But they cannot threaten immediate

withdrawal of financial support and hold hostage un-

ion decision-making when the need for quick and deci-

sive action on hard choices is paramount — and when a

majority of the bargaining unit supports the union’s

position and the union’s position is in the best interest

of the community and a majority of employees.

Given time, agency fee arrangements create a

foundation of stability that can lead to trusting rela-

tionships to help manage even the most difficult cir-

cumstances. For example, in suburban Cleveland, the

Berea City School District faced an unprecedented

budget shortfall during the recession. Ryan Ghizzoni,

Economic Turbulence in the Economy Impacts District,

Inspiring Excellence, Winter 2004, at 1, https://goo.

gV/xEQz3V. To stabilize the budget, the district — which

has long had an agency-fee arrangement with its

teacher and administrator unions — was forced to close

and consolidate schools and substantially reduce staff.

Id. The unions worked closely with management to de-

termine how best to place staff into the consolidated

buildings. School district and union leaders attributed

the successful negotiation to the parties’ open, trusting

relationship and cooperative, non-adversarial ap-

proach to bargaining. Berger DuMound, Berea Teach-

ers, Administrators Contracts See No Base Pay

Increases, Cleveland.com (Apr. 11, 2013), https://goo.

gV/dqsNpk.

Even absent acute budgetary crises, the long-term

approach engendered by agency-fee arrangements has

enabled government employers to incentivize their un-

ions to help improve service delivery and, in many

cases, reduce costs. For example, Lucas County, Ohio —

one of the Amici — formed a labor-management com-

mittee in the 1980s to address health care costs. The

committee has succeeded in developing a health insur-

ance package that employees support and that has

saved the county money. The committee regularly

reviews health insurance programs and products, and

it interviews providers to ensure that county employ-

ees receive high-quality health care at a low cost to the

taxpayers. See Health Care Cost Containment Board,

https://goo.gi/1 Tyw5F.

The municipal government of King County, Wash-

ington, has similarly relied on the unions that repre-

sent its employees in a number of initiatives that

improved service delivery while reducing costs. From

2001 through 2011, the County’s Wastewater Treat-

ment Division engaged in a collaborative Productivity

Initiative with its unions. That initiative resulted in

“savings of almost $73 million,” while the Division

“took on a significant amount of new work and new fa-

cilities without increasing staff.” King County Dept. of

Natural Resources & Parks, Wastewater Treatment

Div., Productivity Initiative: Internal Comprehensive

Review Report v (2011). One of the terms of the Initia-

tive provided that cost savings would be shared by the

ratepayers (in the form of lower rate increases) and the

workers (in the form of bonuses and additional train-

ing programs). See id. at vii. The close involvement of

municipal unions in drafting and implementing these

terms provided a crucial incentive and mechanism for

workers to provide ideas that would promote the effi-

cient delivery of public services.

Unions also worked jointly with King County to

develop the municipality’s groundbreaking “Healthy

incentives” program. During its first five years, that

program “invested $15 million and saved $46 million

in health care spending with sustained participation

by more than 90 percent of [the County’s] employees.”

Christine Vestal, King County’s Wellness Plan Beats

the Odds, Stateline, July 22, 2014, https://goo.gl/u3HWhE.

In 2012, as a result of the program, “$61 million in sur-

plus health care funds were returned to county coffers

because cost growth was lower than actuaries had pro-

jected.” Id.

And in Toledo, Ohio, the union that represents the

city’s employees developed a program in which union

members serve as peer trainers to promote the use of

safe work practices. Under that program, which the

city has now specifically embraced in its collective bar-

gaining agreement, employee injuries have decreased,

with the result that the city has saved money previ-

ously lost to workers’ compensation payouts and lost

work time. See generally Collective Bargaining Agree-

ment Between AFSCME Ohio Council 8, Local 7, and

City of Toledo, 2011-2014 at § 2117.87, https://goo.gi/

YPH7SH (including this safety training program).

Without the resources to develop and implement this

program, the union could not have provided this ser-

vice to the city.

These successes would not have been possible

without the security afforded to unions by agency-fee

arrangements. Overruling Abood would deprive gov-

ernment employers of strong and stable negotiating

partners who can take the long view during difficult

budget times. It would thus substantially undermine

“the government's interest in the effective and efficient

fulfillment of its responsibilities to the public.” Con-

nick, 461 U.S. at 150.

2. Agency-Fee Arrangements Give Unions the

Incentive and Opportunity to Promote Ef-

fectiveness and Innovation in the Deliv-

ery of Public Services

As researchers have long noted, public employers

frequently draw on the expertise of unions who iden-

tify inefficiencies in government operations, point

those inefficiencies out to their employers, and thereby

save taxpayer money. In 1988, Professors Jeffrey Zax

and Casey Ichniowski highlighted examples of munic-

ipal unions using their superior knowledge of employee

turnover to recommend the elimination of unnecessary

budget lines for new hires. See Jeffrey Zax & Casey

Ichniowski, The Effects of Public Sector Unionism on

Pay, Employment, Department Budgets, and Municipal

Expenditures, in When Public Sector Workers Union-

ize 323, 326 (Richard B. Freeman & Casey Ichniowski,

eds., 1988). Only a union with the resources to analyze

trends in staffing patterns — and the strength to en-

sure that its workers would reap some benefit from the

savings — would have the capacity and incentive to

bring such inefficiencies to an employer's attention.

Zax and Ichniowski concluded that “[pjublic unions

may succeed in their objectives, in part, because orga-

nized public sector employees are better prepared than

other citizens are to assess service needs and to ensure

effective service provision.” Jd. at 356-357.

In 1996, a task force chaired by former New

Jersey Governor James J. Florio and then-Louisviile

Mayor Jerry Abramson identified numerous cases in

which public employers were able to incentivize their

unions to generate innovations that improved service

delivery within existing “financial resource constraints,”

and that “in many cases also led to cost savings and

stable tax rates.” Secretary of Labor’s Task Force on

Excellence in State and Local Government Through

Labor-Management Cooperation, Working Together

for Public Service (1996), https://goo.gl/519s8K. The

task force found “increases of 30 percent to 50 percent

in productivity and decreases of 25 percent in time-loss

expense, such as workers’ compensation, overtime and

absenteeism” to be “not uncommon” in these efforts. Jd.

Among the examples described by the task force in-

cluded the following (id. ):

¢ The unions representing workers for Peoria,

Illinois, helped to propose changes in the city’s

employee health care plan; those changes

saved the city over $1 million in health care

costs the next year.

¢ The union representing building inspectors in

Madison, Wisconsin, developed a training pro-

gram for electricians who work in the city. The

program improved relationships between city

inspectors and private building contractors

and, by promoting better practices among

electricians, reduced the number of necessary

inspections by 25 percent.

¢ The union representing sanitation workers in

Los Angeles, California, identified a need for

closer cooperation between drivers and me-

chanics to increase the availability of sanita-

tion trucks. With the union’s input, the city

implemented changes that substantially

increased the availability of those trucks, and

thus cut in half the city’s need to pay overtime

to sanitation workers.

¢ The union representing transit workers in

King County, Washington, saved hundreds of

thousands of dollars by identifying work that

the municipality had been contracting out

but that could be performed more cheaply in

house.

The report listed many similar examples from around

the Nation. See id.

Shortly after publication of the task force report,

Louisville’s water authority entered into a contract

with its union to create “a new labor-management

team to oversee the implementation of [a] joint strate-

gic plan and partnership agreement.” Allyne Beach &

Linda Kaboolian, Working Better Together: A Practical

Guide for Union Leaders, Elected Officials and Manag-

ers to Improve Public Services 28 (2005). The team

saved the water authority millions of dollars by avoid-

ing unnecessary contracting out. See id. A number of

recent studies have found that such “contracting back-

in” often represents the most efficient means of deliv-

ering public services — and that it frequently results

from “internal process improvements undertaken by

labor management cooperation.” Jeffrey Keefe, Public

Employee Compensation and the Efficacy of Privatiza-

tion Alternatives in US State and Local Governments,

50 Brit. J. Indus. Rel. 782, 794 (2012).

Government employers have continued to receive

important assistance from their unions in avoiding un-

necessary costs. As a recent report details, the union

representing operating engineers in a Minnesota mu-

nicipality recommended that all bargaining-unit engi-

neers be moved into the same job classification. “Once

these changes were agreed upon through bargaining,

employees were all given raises and were cross-trained

to perform all of the types of work needed.” Erin

Johannson, Improving Government Through Labor-

Management Cooperation and Employee Ingenuity 5

(2014), https://goo.gl/B9JwUd. The change increased

managerial flexibility, which “enabled the work to go

more smoothly, as managers didn’t have to ensure that

every classification of operator was present on the site

in order to get the job done.” Jd. Along the same lines,

the City and County of Honolulu (one of the Amici) and

one of its unions agreed to create a “multi-skilled”

worker class in which employees were trained to do

multiple blue-collar tasks. These workers received an

increase in pay for assuming new duties, but Honolulu

ultimately saved money by reducing overtime costs

and the need to hire additional staff who performed

only one type of skill.

In 2015, the union that represents Chicago’s gar-

bage collectors identified changes to garbage truck

routes that will save the city $7 million, which can now

be used for other pressing public needs. See Fran Spiel-

man, Emanuel Adjusts Garbage Grid to Save $7M Be-

fore Imposing Fee, Chicago Sun-Times, Sept. 6, 2015

(“In partnership with Laborers Union Local 1001, the

city has identified adjustments to grid boundaries that

will allow the city to reduce the daily deployment of

garbage trucks from 310 to 292. The savings generated

will free up resources for other vital services like tree-

trimming and rodent control, the mayor’s office said.”),

https://goo.gl/X26W fn.

Efforts like these depend on unions having suffi-

cient resources to identify and pursue possible efficien-

cies in the delivery of public services. Rank-and-file

workers often can make important contributions to im-

proving service delivery, given their front-line experi-

ences. But without strong and stable organizations

that can collect the information and direct it to man-

agers who will take action to improve service delivery

and allow workers to share in their benefits, govern-

ment employers may never learn about existing ineffi-

ciencies.

Functioning grievance-arbitration systems, which

result from collective-bargaining relationships and are

financed by agency fees, are also crucial to ensure that

employees who have concerns about the inefficiencies

in current operations can raise those concerns with the

knowledge that they will be protected against retalia-

tion by managers who may be offended. Cf. Michael

Ash & Jean Ann Seago, The Effect of Registered Nurses’

Unions on Heart-Attack Mortality, 57 Indus. & Lab.

Rel. Rev. 422, 425 (2004) (arguing that union grievance

procedures, by providing “protection from arbitrary

dismissal or punishment,” may “encourage nurses to

speak up in ways that improve patient outcomes but

might be considered insubordinate and, hence, career-

jeopardizing without union protections”).

Indeed, the presence of a strong and stable union

negotiating partner can enable government entities to

improve the grievance process itself. In the Common-

wealth of Pennsylvania, whose governor and other

high officials are Amici, the government and the union

negotiated an “Accelerated Grievance Process” (AGP)

that helped to clear an enormous backlog of pending

grievances. As a result of this process — which the Com-

monwealth and the union have continued to improve

over the years — the vast majority of grievances are

heard and resolved much more quickly. The result is to

make clear to employees that they can safely come for-

ward with workplace concerns while protecting the

public fisc against the large back pay awards that can

accumulate during backlogged grievance proceedings.

But if this Court overrules Abood and bans

agency-fee arrangements, the resource base available

to unions to perform the arbitration task will erode.

And unions will be forced to devote additional time

and resources to giving short-term benefits to their

members to obtain their allegiance, rather than seek-

ing efficiencies that may pay off for the workers only

in the longer term. Government employers — and their

citizens who depend on the efficient delivery of services

— thus have a strong stake in the continuing vitality of

Abood.

3. Agency-Fee Arrangements Benefit the Pub-

lic by Promoting Cooperation Between Gov-

ernment Employers and Their Workers

Agency-fee arrangements also foster trusting,

close relationships in the workplace. This Court has re-

peatedly recognized that developing such relationships

is an important interest for a government employer.

Rankin v. McPherson, 483 U.S. 378, 388 (1987) (“(Pler-

tinent considerations” for First Amendment balancing

include “harmony among coworkers” and “close work-

ing relationships for which personal loyalty and confi-

dence are necessary.”); Borough of Duryea, 564 U.S. at

389-390 (recognizing a “substantial government inter-

est|]” in avoiding “a serious and detrimental effect on

morale”); Connick, 461 U.S. at 151 (*‘[I|t is important

to the efficient and successful operation of [govern-

ment] for [employees] to maintain close working rela-

tionships with their superiors.’”). Amici have relied on

these relationships to provide important benefits to

the public.

These relationships are particularly important in

the context of public education. Studies consistently

show that strong union-administration relationships

improve educational outcomes for students.? The U.S.

? E.g., Saul A. Rubinstein & John E. McCarthy, Teachers

Unions and Management Partnerships: How Working Together

Improves Student Achievement 2 (Mar. 25, 2014) (finding that

“(f)ormal partnerships help improve student performance” and

“[pjartnerships lead to more extensive communication between

teachers”), https://goo.g//3WYHkg; WestEd, Labor-Management

Collaboration in Education: The Process, the Impact, and the

Prospects for Change 1 (2013), https://goo.gi/C6qjxW (“A key

Department of Education has asserted its “working hy-

pothesis” that “collaboration is a more effective and ef-

ficient way to develop great teachers and strong

instructional systems, and that it is a more sustainable

approach over time than the ups and downs of adver-

sarial relationships.” Department of Education, Shared

Responsibility: A U.S. Department of Education White

Paper on Labor-Management Collaboration 23 (May

2012), https://goo.gl/og4GNg. Agency-fee arrangements

make those partnerships much more likely to develop.

This may, in part, explain why districts in states allow-

ing or requiring agency-fee arrangements have lower

teacher quit rates, higher quality teachers, and lower

student dropout rates. Eunice Han, The Myth of Un-

ions’ Overprotection of Bad Teachers: Evidence from the

District-Teacher Matched Panel Data on Teacher Turn-

over 35, 39, 42 (Feb. 27, 2016), https://goo.gi/n18Zuy.

In many school districts, the ability to innovate

and experiment to improve their performance turns in

large measure on their ability to work collaboratively

with their employees. One example of this dynamic can

be seen in the turnaround at Broad Acres Elementary

School in Montgomery County, Maryland — where the

school district and its unions have long shared an

agency-fee arrangement. Broad Acres, whose student

body was the poorest in the district and included many

finding . . .is that collaborative partnerships often build trust and

strengthen professional relationships among local leaders. The

partnerships have been crucial for districts attempting to imple-

ment innovative practices that improve teaching and learning.”).

recent immigrants, had been the lowest-performing

elementary school in the district. See generally Mark

Simon, Transformation at Broad Acres Elementary

(2007) (“Broad Acres Case Study”), https://goo.gl/j{NnDwa.

Faced with Broad Acres’ chronic underperformance,

the superintendent of Montgomery County Public

Schools determined that it might be necessary to “re-

constitute” the school by removing the principal and

bringing in new staff — a disruptive and expensive pro-

cess. Id. at 5. But after working with the district’s three

labor associations, which represent teachers, adminis-

trators, and support staff, the superintendent agreed

to an alternative strategy: reinvesting in employees

who signed on to a sweeping plan to improve the

school. Id. at 6.

Through their unions and in exchange for a pay

increase ard extended planning time, employees at

Broad Acres agreed to receive more training, work

more hours each week, work during the summer, and

commit to stay at the school for at least three years —

reducing chronically high teacher turnover. Id. at 6; see

also Annie Gowen, Initiative Aims to Give Broad Acres

New Direction, Wash. Post, Aug. 30, 2001, at T16. Em-

ployees also agreed to play an active part in planning,

analyzing, and leading efforts to improve student

achievement. Broad Acres Case Study 6-7.

This ambitious plan would have been unthinkable

without employee support, which required rebuilding

trust after the threat of re-constitution. Broad Acres

Case Study 8. The unions, as trusted advocates for the

employees, engaged teachers at the school in designing

the new turnaround plan. /d. at 8-9. A third of the

teachers decided to leave the school and take preferen-

tial transfer status, but a full two-thirds decided to

stay and commit to the turnaround plan. /d. at 9.

The collaborative plan worked. Administrators

and employees developed innovative approaches tailored

to the special challenges of the low-income, immigrant-

heavy student body. Broad Acres Case Study 9. Within

a few years, the collaborative effort raised testing pro-

ficiency rates by up to 50 percentage points. Time to

Celebrate Big, Broad Jumps in Test Scores, Wash. Post,

June 3, 2004, at T6; see also Marc Fisher, A School That

Works by Working Together, Wash. Post, Jan. 8, 2009,

https://goo.g/2YScMH. Amici — which include the

school district that negotiated these arrangements —

firmly believe that agency fees helped create the con-

ditions that enabled this turnaround.

Agency fees have also reinforced broader innova-

tions by promoting long-term planning, non-adversarial

mindsets, experimentation, and effective communica-

tion. In many school districts, unions have worked with

administrators to develop and carry out policies that

fundamentally reimagine the role of unions, teachers,

and other district personnel in school administration.

In particular, unions and the employees they represent

have taken on non-traditional roles — such as partici-

pating in teacher evaluations or discussions about us-

ing and preparing for standardized testing — that

improve student experiences and outcomes.

For example, a number of districts have imple-

mented “Peer Assistance and Review” (PAR) programs.

These programs, which are jointly administered by the

local teachers’ and principals’ unions, evaluate and

mentor new and struggling teachers. See generally

Harvard Graduate School of Education, A User’s Guide

to Peer Assistance and Review, https://goo.gi/sqAaxg.

They emerge from shared labor and management in-

terests in improving the quality of instruction for stu-

dents and creating an evaluation system that is less

adversarial but effective in mentoring struggling

teachers and transitioning those who persistently un-

derperform.

In a typical PAR program, teams of “consulting

teachers” — expert teachers chosen through a competi-

tive process — are responsible for coaching and evalu-

ating new and struggling teachers. A User’s Guide to

Peer Assistance and Review 5. During the course of a

school year, these consulting teachers monitor their as-

signed teachers’ performance; provide coaching, sup-

port, real-time feedback, and hands-on guidance; and

ultimateiy present their recommendations to a panel

of administrators and teachers about whether their

teachers should be dismissed, re-hired, or provided

another year of PAR support. Jd. at 5-6; see also Mont-

gomery County Public Schools, Teacher-Level Profes-

sional Growth System Handbook 9-17 (2015);

Frederick M. Hess, The Cage-Busting Teacher 152-153

(2015).

PAR programs have many positive effects. They

have helped contribute to “significant increases in

student achievement and a substantial narrowing of

the achievement gap.” Geoff Marietta, The Unions in

Montgomery County Public Schools 1 (2011), https://

goo.gl/yxZURH; see also Martin H. Malin, Education

Reform and Labor-Management Cooperation, 45 U. Tol.

L. Rev. 527, 531 (2014) (peer review helps explain the

academic success of Toledo City District, which has

typical urban demographics “but sustains top scores on

state performance indices for grades 3-6, has the high-

est graduation rate and second highest attendance

rate among large urban districts in Ohio, and boasts |a

high school] ranked in the top 10% of high schools by

U.S. News & World Report”). PAR programs also save

money by reducing turnover and the costs of dismiss-

ing teachers. See A User’s Guide to Peer Assistance and

Review 11 (replacing novice teacher costs $10,000 to

$20,000); Larry Ferlazzo, Creating a Culture of Im-

provement With Peer Assistance & Review (PAR), Educ.

Week, Feb. 1, 2013 (five-year retention rate of 65% in

PAR-adopting Montgomery County, compared to 50%

nationally), https://goo.gl/ptEvjB.

Moreover, PAR programs address multiple concerns

of labor and management. They ensure that under-

performing teachers get the support they need. They

alleviate the burden on principals to singlehandedly

administer evaluation programs and instructional

support to struggling teachers. And they also allow

schools to identify effective teachers and dismiss

ineffective teachers more efficiently without a pro-

longed adversarial process."

Because school employees recognize that PAR pro-

grams are joint labor-management enterprises, they

are more likely to readily support these changes and

actively participate in the programs. Agency-fee ar-

rangements support the cooperative, stable relation-

ships necessary to establish a PAR program, and help

obtain the enthusiastic employee buy-in critical to

those programs’ success. Indeed, successful PAR pro-

grams are predominantly located in school districts

that have adopted agency-fee arrangements. See, e.g.,

Susan Moore Johnson et al., Teacher to Teacher: Real-

izing the Potential of Peer Assistance and Review 25

(May 2010), https://goo.gl/Sqh4YZ; American Federa-

tion of Teachers and National Education Association,

Peer Assistance & Peer Review A3, B1-B9 (1998),

https://goo.gl/djpjv).

An example of long-term, innovative cooperation

at the state level is the Pennsylvania Employees Ben-

efit Trust Fund (PEBTF). In 1988, the Commonwealth

* Montgomery County has further adapted the PAR model

Between SEIU Local 500, CTW and Board of Education of Mont-

gomery County for the School Years 2015-2017 art. 29 (Mar. 11,

ployees meet those high standards, to the mutual benefit of staff

and the school district.

of Pennsylvania and unions representing state govern-

ment workers established the PEBTF to administer

health benefits to help control costs. The PEBTF is gov-

erned by a Board of Trustees made up of equal num-

bers of management and union representatives. The

Commonwealth and unions negotiate the annual fund-

ing the PEBTF receives; within this defined revenue

amount, the Trustees then determine the level of ben-

efits to be provided to employees. The PEBTF has con-

trolled costs through aggressive negotiations with

vendors, while implementing innovative wellness pro-

grams and other initiatives.

In sum, agency-fee arrangements are a critical

component of contemporary public-sector management.

Governments and unions have learned that providing

high-quality services to their constituents often re-

quires significant commitments from unions and their

members. And agency-fee arrangements allow the fi-

delity, flexibility, and resources that make those com-

mitments possible. Unions that can take the long view

recognize that providing effective public services is es-

sential to preserving public support for public services,

and to protecting the long-term interests of their mem-

bers. Were this Court to overrule Abood, and bar

public-employee unions from collecting agency fees,

government employers would lose important opportu-

nities for collaboration. The significant public benefits

from these collaborations provide another significant

reason for the Court to adhere to its precedent.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

SAMUEL R. BAGENSTOS

Counsel of Record

625 S. State St.

Ann Arbor, MI 48109

734-647-7584

sbagen@gmail.com

DENISE J. SMYLER

General! Counsel

OFFICE OF THE GOVERNOR

COMMONWEALTH OF PENNSYLVANIA

225 Main Capitol Building

Harrisburg, PA 17120

Counsel for Governor Tom Wolf

JOSHUA CIVIN

General Counsel

MONTGOMERY COUNTY PUBLIC SCHOOLS

850 Hungerford Dr., Room 156

Rockville, MD 20850

Counsel for the Montgomery County Public Schools

MATTHEW RUYAK

Interim City Attorney

915 1 St., Fourth Floor

Sacramento, CA 95814

Counsel for the City of Sacramento

JAMES R. WILLIAMS

County Counsel

OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA

70 West Hedding St., East Wing, Ninth Floor

San José, CA 95110-1770

Counsel for Amicus County of Santa Clara

ANDRA M. DONOVAN

General Counsel

SAN DieGco UNIFIED SCHOOL DisTRICT

4100 Normal St.

San Diego, CA 92103

Counsc! for San Diego Unified School District

JEREMY FARRELL

Corporation Counsel

City OF JERSEY CITY

280 Grove St.

Jersey City, NJ 07302

Counsel for the City of Jersey City

ZACH KLEIN

City Attorney

City OF COLUMBUS, DEPARTMENT OF LAW

77 N. Front St., 4th Floor

Columbus, OH 43215

Counsel for the City of Columbus

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.