Union Respondents File Brief in Friedrichs
The respondents call for Abood v. Detroit Board of Education to “be reaffirmed because it correctly respects public employers’ prerogative to manage their workforces to ensure the efficient provision of public services to their citizens.” As did the California Attorney General in her brief, the unions focus on the state’s interests as an employer relative to employees’ First Amendment rights:
Drawing on private-sector employers’ experience and Congress’s legislative judgments, Abood properly recognized that the agency shop serves States’ strong interests in the orderly negotiation of terms and conditions of employment and resolution of employee grievances. A single representative is critical to avoid the confusion and burden of negotiating with multiple groups of workers with conflicting demands. When a union serves as exclusive representative, States have a vital interest in ensuring the fair allocation of the costs of that service to all employees.
Abood correctly held that the State’s interests as employer outweigh any interference with employees’ First Amendment rights. Abood fully accommodated non-members’ First Amendment interests by allowing non-members to opt out of contributing to unions’ political expenditures unrelated to collective bargaining. Agency-fee requirements impose no limits on employees’ right to speak against the union’s positions. Any compelled funding is ancillary to exclusive representation itself, the constitutionality of which is settled and unchallenged here.
The unions also invoke “[s]ettled stare decisis principles” in support of their request to reaffirm Abood:
Outlawing fair-share fees will override the judgments of 23 States plus the District of Columbia that have enacted statutory collective-bargaining frameworks covering public-education employees. It also will throw into disarray tens of thousands of collective-bargaining agreements governing millions of teachers, police officers, firefighters, first responders, and other public employees. The Abood framework is workable. This Court’s largely unanimous decisions have generated only limited disagreement over its implementation. The only two decisions to break from that pattern – Knox [v. SEIU] and Harris [v. Quinn] – involved contexts that did not directly implicate Abood (Knox) or did not involve the State’s interest in managing its workforce (Harris).
As for the opt-out question:
This Court’s well-settled opt-out framework for implementing Abood is properly tailored to the First Amendment’s core prohibition on coercion. It is also consistent with other well-established case law requiring individuals to invoke constitutional rights. Petitioners’ requested opt-in rule would vastly expand the First Amendment’s sweep and lead to unworkable and unnecessary intrusion into large swaths of government activity. If individuals genuinely object to unions’ political activities, they can readily fill out and mail in the simple, one-page opt-out form.
The full union respondents brief is available here. Petitioners’ brief, which was filed in September, is available here; their reply brief is due in mid-December, with oral argument to follow early next year.