California AG Files Brief in Friedrichs

Published November 6th, 2015 -  - 11.06.152


The office of California Attorney General Kamala Harris has filed its brief in Friedrichs v. California Teachers Association.

The brief, which is available here, begins by asking the Supreme Court to reject petitioners’ contentions that the “Court erred in deciding Abood [v. Detroit Board of Education], and that California may not use mandatory agency fees as part of a structure for managing public-sector labor relations.” Pointing to the merits of California’s public employment system, Harris asserts that

[a]gency fees are one piece of an integrated structure adopted by the California Legislature to address practical employee-relations challenges faced by the State’s many local school district employers. . . . This system of exclusive-and-fair representation provides important benefits for the public employer. For example, the single employee representative is responsible for understanding and prioritizing the concerns of the employee group as a whole, and for facilitating the resolution of contract-related disputes between the employer and individual employees. A relationship with one employee representative can also help district management garner employee support for its own goals.

In order for this system to be both functional and fair, Harris notes, the law not only ascribes a “legal duty” upon the bargaining representative “to provide fair representation for everyone in the unit,” but also requires “all employees . . . to share the cost of the representation”:

This shared-funding requirement, which is what petitioners challenge, ensures that the representative selected by most employees has the resources to discharge the responsibility the State imposes on it to represent all employees in the unit. It also ensures that the financial burden of representation is spread fairly among all those represented. This avoids the incentive that all employees — whether or not union supporters — would otherwise have to accept the benefits of representation without paying for them. Petitioners suggest that employee organizations would represent nonmembers equally even if the law did not require them to do so, and that employees would reliably pay for representation even if legally entitled to receive the same services for free. The Constitution does not, however, require the State to ignore basic principles of economics and human nature when designing structures to manage the public workplace.

And while Harris acknowledges that “mandatory agency fees impose some burden on the First Amendment interests of dissenting employees,” she argues that such “burdens arise . . . in a very limited context,” i.e., “only in direct support of a system of exclusive representation that petitioners do not challenge.” Thus,

[t]he rule adopted in Abood strikes a proper balance between the State’s interests in managing public workplaces and the limited First Amendment burden imposed by mandatory fees. That balance reflects in part the Court’s longstanding recognition that constitutional analysis differs when the government acts as employer, rather than regulator. In appropriate circumstances, the government as employer may even prohibit or punish employee speech on matters of public concern — something it could never do as regulator, outside the employment context. Here, agency fees operate solely within the employment context, and without imposing any restriction on employees’ own speech in the public square. Petitioners offer no alternative system that would provide the same protection for the State’s interests as employer while imposing lesser burdens on dissenting employees.

Harris goes on to challenge petitioners’ request to reconsider Abood in light of the Court’s decisions in Knox v. SEIU and Harris v. Quinn:

Finally, even if there were reason to question the original decision in Abood, petitioners have not established the special justification that would be required to set it aside under ordinary principles of stare decisis. Far from undermining Abood, this Court’s later decisions have repeatedly cited it and built on its foundation. While the Court’s recent decisions in Knox v. Service Employees International Union, Local 1000, 132 S. Ct. 2277 (2012), and Harris v. Quinn, 134 S. Ct. 2618 (2014), questioned some of Abood’s reasoning and declined to extend it in new directions, neither decision involved the situation addressed in Abood itself and at issue here, where the government acts in its traditional role as employer. Overruling Abood in this core context would undermine significant reliance interests, without any demonstration that the basic approach adopted in that decision has proved unworkable over the last four decades. There is, of course, a wide range of views concerning the best way to structure labor-management relations in the public sector. This Court should not, however, disturb settled law that has long permitted individual States to make their own choices concerning whether to use mandatory agency fees to serve important interests of the government as employer.

Turning to the second question presented by the case — whether the “use of an opt-out, rather than opt-in, system for effectuating Abood’s unquestioned holding that employees may not be compelled to support ideological speech unrelated to bargaining” violates the First Amendment — Harris contends that there is no compelled speech concern “where an employee is offered an easy way to avoid even funding particular speech, let alone any potentially misleading individual attribution.”

Again, the full brief is available here. The California Teachers Association’s brief will be filed later today.

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