IN THE

Supreme Court of the United States

MARK JANUS, Petitioner,

v.

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 31, Respondents.

 

BRIEF FOR THE PETITIONER

QUESTION PRESENTED

Whether Abood v. Detroit Board of Education (1977), which holds that a State may permit a public-employee union to collect a fee from the employees it represents to pay a proportionate share of the costs of its representational activities collective bargaining, contract administration, and grievance resolution-should be overruled.

INTRODUCTION

Illinois, like every other State, is not only a sovereign but also an employer. As an employer, Illinois must attract and retain qualified employees; set salaries, benefits, and workplace rules; and impose day-to-day discipline for workplace infractions. Like more than 20 other States, Illinois has decided to allow employees who form a bargaining unit to designate an exclusive representative to negotiate with their public employers over these terms and conditions of employment and to help administer the collective bargaining agreement during the life of the contract. Under this system, the exclusive representative has a duty to fairly represent all of the employees in the bargaining unit, whether or not they are union members.

States have adopted this system because it brings them important benefits as employers. But the process of collective bargaining and contract administration carries a price tag. For example, the representative must pay staff who identify employee priorities and concerns, negotiators who translate those interests into concrete positions at the bargaining table, and field representatives who counsel employees when workplace disputes arise. Historically, many of these costs have been defrayed through union dues, but such dues may also be used by the union to pay for core political and ideological speech such as campaign advertisements with which non-member employees may strongly disagree.

So, for more than 40 years, this Court has struck a balance: public employees may opt out of paying union dues, but can be required to pay an agency fee, or "fair-share fee," so long as the proceeds are used to support "collective bargaining, contract administration, and grievance adjustment," not political or ideological causes.

Petitioner invites the Court to overrule Abood and declare all mandatory public-sector agency fees unconstitutional, regardless of the activities they support. The Court should decline that invitation. The core activities funded by agency fees-negotiating employment contracts and resolving workplace grievances-involve speech by an employee representative to an employer in an employment-related forum for employment-related purposes. Accordingly, such fees fall within the wide zone of discretion States enjoy when acting as employers to manage their workforces.

By contrast, agency fees that fund union speech that is directed to the government as a sovereign or to the public in a public forum are not entitled to judicial deference. Such speech-including lobbying and public information campaigns-is citizen speech, not employee speech, even if its message may be broadly related to the welfare of employees.

Petitioner's radically overbroad constitutional claim seeks to invalidate all public-sector agency fees on the theory that everything a public employee union does-right down to the most picayune workplace grievance-is political speech in a public forum. That is not an accurate view of the world. It would be especially imprudent for the Court to adopt such a view, which rests on mistaken factual assumptions, in a case with no factual record. This Court should not sweep aside a precedent that has helped shape countless employment contracts for four decades. Doing so would unsettle several areas of First Amendment law and would undermine the States' well-established authority as employers to manage their workplaces. Abood should be reaffirmed.

STATEMENT

1. In Abood, this Court upheld the power of a State to authorize an exclusive representative to collect a mandatory fee from the public employees it is charged with representing. Specifically, the Court drew a line between a union's representational activities-collective bargaining, contract administration, and grievance resolution-and its political or ideological speech unrelated to those activities, holding that the First Amendment permits fees to be used to support the former but not the latter.

Abood drew upon earlier decisions upholding private-sector agency fee provisions under the Railway Labor Act, Railway Employees' Department v. Hanson (1956), and International Ass'n of Machinists v. Street, (1961). The Court's primary reason for citing Hanson and Street was to emphasize its consistent view that any impingement on First Amendment interests effected by agency fees is "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress."

The Court left the task of refining the boundary between "chargeable" and "non-chargeable" expenses to later cases. In Lehnert v. Ferris Faculty Ass'n, (1991), the Court established a three-part test under which a chargeable expense must "(1) be 'germane' to collective bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding 'free riders'; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop." And in Chicago Teachers Union Local No.1 v. Hudson, (1986), the Court specified a procedure by which public-sector unions must notify employees of the activities on which fees are being spent so that employees have a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision-maker.

2. Illinois, like many other States, has chosen to manage labor relations between public employers and employees through a comprehensive system of exclusive representation and collective bargaining. Under that system, a bargaining unit of employees has the option to select a union to act as its exclusive representative in bargaining with the employer, processing grievances, and otherwise administering the collective bargaining contract that governs the employment relationship. No public employee is required to join a union. An exclusive bargaining representative takes on the state-law duty to fairly represent the interests of all employees in the unit, including those who choose not to join the union, and may (but is not required to) collect an agency fee from non-union employees to pay their proportionate share of the costs of bargaining, contract administration, and related activities.

In enacting the Illinois Public Labor Relations Act (IPLRA), the legislature declared that "it is the public policy of the State of Illinois to grant public employees full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating wages, hours, and other conditions of employment or other mutual aid or protection." The purpose of the IPLRA is "to regulate labor relations between public employers and employees, including the designation of employee representatives, negotiation of wages, hours and other conditions of employment, and resolution of disputes arising under collective bargaining agreements."

Public employees are not required to form bargaining units or select representatives. The IPLRA provides that public employees "have, and are protected in the exercise of, the right of self-organization, and may form, join or assist any labor organization, to bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment ... , and to engage in other concerted activities . . . free from interference, restraint or coercion." The Act also provides that public employees "have, and are protected in the exercise of, the right to refrain from participating in any such concerted activities." Ibid. To that end, the Act guarantees public employees the right to "present  a grievance to the employer and have the grievance heard and settled without the intervention of an employee organization." 6(b). The Act also makes it an unfair labor practice for a union to restrain or coerce an employee in the exercise of rights guaranteed by the Act or to discriminate against an employee because he or she did not join the union or petitioned to have the union decertified.

The organization chosen by a majority of the public employees in an appropriate unit is designated as the unit's exclusive representative for purposes of collective bargaining. The representative must fairly represent the interests of all employees in the unit, including those who are not dues-paying members of the organization. The IPLRA imposes a duty on the employer and the exclusive representative to "meet at reasonable times" and to "negotiate in good faith with respect to wages, hours, and other conditions of employment." Those collective bargaining sessions are exempt from Illinois's Open Meetings Act, as are grievance proceedings. The statute excludes from the scope of bargaining "matters of inherent managerial policy," including "the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees, examination techniques and direction of employees."

The IPLRA permits (but does not require) collective bargaining agreements to include a provision authorizing the union to collect a fee from employees who are not members of the union. That fee is limited to the non-members' "proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment." The Act requires that "agreements containing a fair share agreement must safeguard the right of nonassociation of employees based upon bona fide" religious objections. An employee with a religious objection to paying the agency fee may instead donate the fee to a nonreligious charity.

The IPLRA requires that a collective bargaining agreement contain a grievance resolution procedure, which "shall apply to all employees in the bargaining unit" and "shall provide for final and binding arbitration of disputes." The union's duty of fair representation requires it to treat union members and non-members the same for purposes of grievance adjustment. An agreement containing a grievance procedure must also contain a provision prohibiting strikes for the duration of the contract.

3. Petitioner Mark Janus is a state employee in a bargaining unit represented by respondent American Federation of State, County and Municipal Employees, Council 31 ("AFSCME") who has chosen not to join the union. According to his complaint, petitioner "objects to many of the public policy positions that AFSCME advocates, including the positions that AFSCME advocates for in collective bargaining." Petitioner "does not agree with what he views as the union's one-sided politicking for only its point of view" and believes that the union's bargaining conduct "does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens." Petitioner's complaint does not identify any specific positions taken by AFSCME with which he disagrees or any expenditure to which he objects.

Many of the terms and conditions of petitioner's employment are set out in a collective bargaining agreement entered into by AFSCME and the Illinois Department of Central Management Services. In addition to setting wages and salaries, the collective bargaining agreement ("CBA") establishes terms and conditions on such issues as vacations, holidays, overtime, health insurance, indemnification, temporary assignment, promotions, demotions, records and forms, seniority, and vacancies. The CBA incorporates by reference the pension rates set by operation of the State's Pension Code.

The CBA also provides procedures for resolving grievances and imposing discipline, and sets a schedule of meetings between labor and management to discuss and solve problems of mutual concern. In addition, the CBA sets up programs for training and workplace health and safety. It also prohibits both strikes and lockouts.

AFSCME sends an annual notice to petitioner and others in his bargaining unit who pay an agency fee, explaining how the fee was calculated and the procedure for challenging it. In 2011, the fee was equivalent to 78.06% of union dues. The notice listed the expenses that were charged to all unit members and formed the basis for that calculation, which was audited by a certified public accountant, and included tables illustrating how the fee amount was determined. The notice also informed employees that they could file a written challenge to the fee amount and that, if they did, the burden would shift to AFSCME to justify the fee to a neutral arbitrator.

4. Illinois Governor Bruce Rauner initiated this case by filing suit against various Illinois public employee unions and asking for declarations that the agency fee provision in the IPLRA violated the First Amendment. He also sought a declaration authorizing his issuance of an executive order barring the collection of such fees. The district court allowed Illinois Attorney General Lisa Madigan to intervene as a defendant on behalf of the People of the State of Illinois.

Defendants filed a motion to dismiss, and petitioner, along with two other state employees, then moved to intervene as plaintiffs. The court dismissed Governor Rauner's complaint, holding that it lacked subject matter jurisdiction over his claims and that he lacked Article III standing to challenge the constitutionality of the IPLRA. As to intervention, the court recognized that it generally could not allow a party to intervene in an action over which it lacks jurisdiction, but went on to grant intervention here under what it viewed as an exception to that rule that applies when a court has an independent basis to exercise jurisdiction over a separate claim brought by an intervening party.

Petitioner and one of the other intervenors later filed a second amended complaint against AFSCME, Attorney General Madigan, and Michael Hoffman, the Acting Director of the Illinois Department of Central Management Services, alleging that the parts of the IPLRA that allow for the collection of agency fees violate the First Amendment. The district court dismissed, concluding that the case was controlled by Abood. The Seventh Circuit affirmed the dismissal of petitioner's claim under Abood, while also holding that the other intervenor's claim was barred by claim preclusion.

SUMMARY OF ARGUMENT

I. The government has broad discretion as an employer to determine how to manage its workforce. In particular, this Court has consistently held that state regulations of public-employee speech do not implicate the First Amendment if they affect only the speech of employees qua employees. Indeed, even when such regulations restrict employees' ability to speak as citizens on matters of public concern, they are not subject to heightened scrutiny but are instead reviewed under a balancing test that gives great weight to the interests of the State as an employer. Similarly, this Court has repeatedly held that the government may require the payment of fees to support speech by a mandatory association, as long as (1) the funded activities further the regulatory interests that justify the association, and (2) those interests are independent from the association's speech.

Agency fees that support the representational activities of a public employee union-contract negotiation, contract administration, and grievance adjustment-are supported by these well-established principles. Such fees are assessed as a condition of employment and promote the government's distinctive interests as an employer. Abood's central holding that mandatory fees may permissibly support a union's employment-related activities but not its political or ideological speech-tracks precisely the fundamental distinction between government as employer and government as sovereign. In addition, the activities funded by agency fees serve the same workplace management purposes that justify the State's recognition of the underlying association among employees. Consequently, a State's decision to allow a public employee representative to collect agency fees is entitled to the same broad deference that attaches to every other action taken by the State as an employer.

That deference should not be accorded, however, to agency fees that fund lobbying or other speech in a public forum that is not directed to the government as employer. To the extent that the plurality opinion in Lehnert suggested that such deference is appropriate, that conclusion should be revisited in an appropriate case. This is not such a case, though, because petitioner has chosen instead to argue that agency fee provisions are unconstitutional in all of their applications.

That sweeping argument is without merit. Petitioner overlooks the basic distinction between government as employer and government as regulator. Cases involving compelled expressive association, compelled speech, and campaign expenditures are inapposite here because in those cases the government acted as a sovereign to regulate the speech of citizens. Likewise, cases invalidating patronage-based employment schemes are not controlling because agency fees do not coerce belief or require overt speech with which an employee disagrees.

II. Agency fees are justified by the State's interest in dealing with a fairly and adequately funded exclusive representative. Both Congress and this Court have long recognized that exclusive representation contributes to stable and effective labor-management relations. The exclusive representative provides the government with a counterparty that can aggregate employee preferences, convey accurate information, and resolve workplace disputes.

The duty of fair representation, which requires the union to work on behalf of all employees, is a crucial corollary to exclusive representation. The State has a powerful interest in ensuring that the costs of carrying out that duty are borne equally by all represented employees. Without agency fees, many employees supporters and opponents of the union alike-would have an incentive to opt out of paying for what the union is legally obligated to provide to them. The State is entitled to conclude that the resulting disparity and resentment would disrupt the workplace. The First Amendment should not be held to mandate that outcome.

Agency fees constitute only a limited impingement on dissenting employees' First Amendment interests. The activity funded by such fees occurs exclusively within the employment setting. Although unions do address some matters of public concern at the negotiating table, in that setting they are speaking to an employer on behalf of employees. In addition, much of the speech involved in collective bargaining-and most or all of the speech involved in grievance adjustment-does not involve matters of public concern. The across-the-board relief petitioner seeks would constitutionalize every workplace grievance, in direct violation of this Court's repeated admonitions.

Agency fee requirements do not threaten the vitality of public debate. They do not restrict any expression, prescribe any orthodoxy, or convert employees into mouthpieces for any message. Nor do they create an expressive association between the union and dissenting employees. Rather, they play an important role in the system by which many States have chosen to manage their workforces.

III. Petitioner has not come close to establishing a special justification for departing from stare decisis. On the contrary, Abood has engendered an extraordinary degree of reliance on the part of States, government employers, employees, and unions. Ordinary line-drawing difficulties associated with the distinction between chargeable and non-chargeable expenses do not warrant obliterating that distinction altogether; at most, they counsel revisiting aspects of Lehnert's holding in an appropriate case. Perhaps most worryingly, overruling Abood would undermine several areas of First Amendment law, including the principle that the government enjoys wide discretion as an employer to structure its own workplace.'

Petitioner correctly observes that the Court's opinions in Knox and Harris criticize aspects of Abood's reasoning. But neither of those cases involved agency fees in support of the core employment-related activities of a union representing government employees in a traditional workplace. Indeed, in deciding not to approve a "very substantial expansion of Abood's reach," Harris specifically declined to disturb Abood's holding. The narrow holdings of Knox and Harris stand in stark contrast to the sweeping relief petitioner now seeks, which would invalidate public-sector agency fees in all their applications.

That contrast illuminates a crucial feature of this case: it is impossible to overrule Abood without departing from a principle this Court has acknowledged "tlime and again," that "the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large," A decision to overturn Abood would undermine the foundations of many other settled precedents ranging far beyond the First Amendment. It would also deprive state and local governments of the flexibility our federal system has conferred on them to manage their workforces in ways that meet local needs.

CONCLUSION

This Court should affirm the judgment of the court of appeals.