Legal Case Summary

We'll hear argument this morning in case 14 915 Friedrichs versus the California Teachers Association at all Mr. Carvin Mr. Chief Justice and may it please the court every year Petitioners are required to provide significant support to a group that advocates an ideological viewpoint Which they oppose and do not wish to subsidize a Boots authorization of this clear first amendment violation should be overturned both to end this ongoing depravation of basic speech and association rights and to restore consistency and predictability to the courts first amendment George is a permissible in your view to allow the union to be the exclusive Representative so that nobody else is at the bargaining table. Yes, that's fine with us our objection of course is being forced to subsidize that exclusive representative the fact that they are exclusive representative Impinges on my clients because it disables them from individually negotiating With the school board, but that is justified by the need for an exclusive representative And that is why indeed Requiring agency fees in the collective bargaining context is less justified than for example requiring agency fees to support union lobby In the collective bargaining context we are required to free ride on the union because they are the exclusive Representative and we don't have our own vehicle So the free rider justification is far weaker in the collective bargaining context than it is in the union lobbying context Mr. Carvin is is it okay to force somebody to contribute? To a cause that he does believe in I wouldn't think you're either you could force Republicans to give contribute Yeah, that's that's what I'm thinking could you enact a law and let's say the national political parties are in trouble So they enact a law that says all all members of the Republican Party if you want to be a member you have to contribute so much money No, is that okay? No, it's not and that's because the bedrock principle is Harris made clear is not whether or not you vividly oppose what they're saying it's because You don't wish to subsidize exactly so I don't know why you're putting so much on the fact that you're your clients oppose it really wouldn't matter would it? No, and I don't I did want to point out that That's the reason that they've brought this lawsuit but but no your thousand percent right your honor if you if you were to prevail What would happen with private employers? And a state which said that there should be a union shop Nothing, Your Honor and because because the First Amendment doesn't apply to private employers and because in back the court Established the rules for agency shops based on the statute without any first I think that's correct as a basic distinction It is true though assuming that you have a state statute which allows an agency shop or a closed Closhoff that that is state participation in the very kind of coerced membership and coerced speech that you're objecting to Well, I don't in candor think that that would create state action under the Court's modern jurisprudence such as Mousslaj where it turns on who is making the decision That is being objected to and your hypothetical would be the private employer but that aside as the court made clear in Harris even if it did reach the first Amendment there's a there's a serious difference between grudging authorization or the government permitting Private employers to engage in agency shops and the government itself in Affirmatively imposing them on its own public employees What is the real way labor act? I ponder the real way labor act. Yes You answered this is Kennedy that in the private sector This is all right you can have an agency shop how about under the real way labor act? Well as you know from street you can have agency shops but the agency fees can only go to Things that are germane to collect a bargain in other words they impose the abude rule in the private sector as a matter of statutory interpretation and nothing the court says about it But you don't have any first amendment Augument about that about the either the private sector or railroads Not a lawyer or we strictly limiting ourselves to public employees because public Employers obviously are subject to far greater constraints under the first amendment

. One of the points of our public employee cases generally Mr. Carvin essentially to Ensure that when the government acts as an employer That the government be put in the same position as a private employer In other words that the various constraints that would Constraint the government when it's acting a sovereign fall away and a different and lesser set of constraints apply That are meant essentially to ensure that the government doesn't use its position as leverage over things that Ortoned to be able to control but that the government can do the same things that a private employer can and so why doesn't this fall Within that category of things in other words you've just said Private employer can decide To do this that's not a constitutional problem so too with a government employer For two reasons just kidding first I must respectfully disagree with the premise none of the courts first amendment jurisprudence Quets says public employers at the same rights as private employers Private employers under the Constitution can discriminate on the basis of political affiliation They could even discriminate on the basis of sexual orientation But nobody thinks that public employers can do that Plus which even under Pickering for example the deferential review you referring to Imposes greater constraints on public employers than private employers Private employers miscarving But there's a lesser set of constraints and and the lesser set is basically to draw a line and to ensure that the government doesn't use Its position as employer to do things it more and properly to do But the the government when it's acting as an employer with respect to its employee workforce really ought to be able to do the same things That a private employer can the courts government is employer speech And first amendment draw clear distinction between Restricting employee speech like under the Pickering line of cases where there is deferential review and circumstances such as this where they do leverage the employment relationship To coerce the employee to subsidize or associate with an outside group But obviously for example root hand is subject to strict scrutiny because they are leveraging the employment relationship The force to associate with a political party With that sound like you're drawing a distinction between restricting speech and subsidizing speech And I had always thought that these were two sides of the same point that compelled speech is is is is no less and no greater And offense than compelled silence. Oh, yeah, certainly in terms of petitioners rights, but your honor the scrutiny given to the speech being subsidized Doesn't dictate the level of speech scrutiny given to the compulsion of speech for example That you can stop unions from making political contributions under the case law But that hardly suggests you could compel a non-member to subsidize the union's contributions you can stop public employees under the hatchback from engaging in basic political participation But that hardly suggests that you could require a non-member to subsidize political activity So there's always been a clear distinction in the case law Between those two things precisely because subsidization is an entirely different infringement than restricting employee speech Restricting employee speech is an inherent part of the employment relationship The employer has to be able to restrict the employee speech as is court is frequently noted or you couldn't have a workplace Plus which we give deferential review because we don't want the federal judiciary Micromanaging the literally hundreds of thousands of personnel decisions that public employers make every day Neither of those concerns is present when you have a Catechal-Goral-Coral that requires one set of employees to subsidize an outside advocacy group like a political party or like A union and that's because you're not involving the federal judiciary in personnel decisions And it's certainly not an inherent part of the employment relationship It is to use your phrase leveraging the employment relationship to require something that the state couldn't require Why are we treating Government differently than a private employer? You just earlier said and I think our Our faces are replete With the point that as employer The government can already restrict speech which is I think a higher problem than subsidization We've already permitted subsidization of our associations of government programs We've permitted assessments on a lot of different levels So why can't the government as employer create a state Entity because this union under california law is a state entity No, oh, I beg to differ. Hold on mr. Caron

. I'll get you this section. Sure. It says When recognized as the exclusive bargaining representative a union assumes an official position in the Operational structure of a school so it seems to me that and california tells the union what topics again Negotiate on it it requires them to do training And in the end it accepts their recommendations with respect to co to the issues of employment at its own will meaning the state is creating the union As part of the employment training and other responsibilities Just sort of my everything. It's important to draw a distinction between having an official position They certainly do they are the exclusive representative of the employees and suggesting that they are somehow state actors If they were state actors the state legislature could tell the unions not to advocate pay raises It could tell them not to oh in fact them might be able to do that. I don't it tells them what they can They give the state legislature has given them the right to do that right what would take away From their right to say no you can't bargain on these particular topics the first men in other words The scope of collective bargaining is obviously something the state can dictate it could never dictate the union's position on collective Absolutely Well, then that's my point But of course if the if they were state officials sub subordinate to the state legislature the state legislature could tell them Don't advocate pay raises don't advocate this for health and benefit Well, so you wouldn't say don't advocate this with respect to the state legislature But they could say That's not going to be the subject of discussion at the bargaining table those are two different things altogether Well again, we need to distinguish being collective bargaining and lobby exactly exactly and and here's the point they couldn't Collect the bargaining is unique because it requires Public officials to meet negotiating good faith and mediate any impasses with unions None of that exists in lobbying for example state legislators could close their door when even even with what even Aren't charge suppose the the union has an article or a public relations campaign um to protest merit pay I take it

. That's a chargeable expense. Yes underliners and and so it's so collective bargaining uh in in in in this instance subsumes includes This wide-ranging effort on the part of the union to have a public relations campaign in favor of Principles that some of its members that some teachers strongly objective exactly your honor and my point in response to justice So to my year would be if they were really state officials subject to subordination by the state legislature The state legislature could say just like if they could say to their own employees Don't run public relations campaigns adverse to the government and in the key point is I think they say you can abandon you can ban collective bargaining, but you can't ban lobby But it's important to focus on why that is so the reason that is so is because we are imposing an obligation on public officials and collect the bargaining And exist nowhere else to negotiate in good faith with the union um But they couldn't tell the union don't advocate to the school board pay raises and things like that They can simply revoke collective bargaining by saying just like lob the state legislature the school board doesn't have to listen So the distinction is between what public officials have to meet and negotiate on But that doesn't translate into any ability to tell the union what to say or do and I'm assuming that the sponsor will agree with that But the teachers can lobby There's nothing wrong with the teachers speaking and that's the whole point the teachers can lobby They can go to the state legislature just like the union can just like the union can and yet they can't be forced to subsidize the unions labs. So what is your law? But with respect to collective bargaining they can't negotiate so so the free rider rash now is much weaker in the collective bargaining context Because the teachers write to negotiate with the public officials that the union is talking to is is Extinguished in those circumstances even though in lobbying they can engage in their own lobbying But we don't allow agency fees for lobbying mr Carvin you come here of course with a heavy burden That's always true in cases where somebody asks us to overrule a decision It seems to be particularly true here. This is a case in which there are tens of thousands of contracts with these provisions Those contracts affect millions of employees maybe as high as 10 million employees So What special justification are you offering here? They're too special for justification It's justice keg and the first one is that this Abood erroneously denies a fundamental right it doesn't expand a fundamental right and as the court made clear and gant The right of the citizen not to be subjected to unconstitutionalist treatment Outweighs any reliance or predictability interests of starry decisions say this in your excuse me You say that a lot in your briefs, but I guess I found it hard to understand that the idea that every time That we deny a claim of right whether it's the first amendment or the fourth amendment or the fourthteenth amendment that that denial of the claim would not have any starry decisives effect I mean we do that constantly we do that Uh Tens of times every year But but you were asking what if the court concludes that a bood was erroneous what special justification is? Yes, if you are answer is essentially you don't need a special justification if the initial decision Um improperly denied a claim of right right I guess I'm saying that I find that an extremely difficult concept to understand it would take away Starry decisives effect from numerous I mean just Hundreds thousands of our decisions, but just escaping with respect I think the proofs in the pudding the court has never upheld an erroneous denial of a right one starry decisives And you think all the fourth amendment cases in your opinion are correct I mean, you know the police can go search a car the good faith rule In respect to Admission of evidence that we seized on Yeah, unlawfully under the fourth amendment. I read a lot of criticism of those things in the paper and It seems to me you could get people who were judges who were up here who thought that the fourth amendment should be really expanded And in fact, there should be no rule That gives police any special authority to search a car There should be no rule that that stops any impudence from coming in I mean there dozens of cases where this court has denied individual rights and you're saying all those cases are now free of any starry Decisive inhibition is at the point or is it just labor union? No, no Your Honor, in fact the fourth amendment is non-hypothetical that was what gant and volumine And gant is the one that I was quoting when it said the right to constitutional treatment Outweighs the reliance interests of starry decisives But if I could move to my side

. Oh, what about the eighth amendment? That's a good one There's an individual right something perhaps against capital punishment the court is consistently ruled against it So I guess if that's ever considered again under your view the court would give no Weight to starry the size if the court was convinced that the capital punishment was clearly Outlawed by the Constitution I think it would be very strange to tell people were being executed in the future That even though this is an unconstitutional execution we are bound by our erroneous prior decisions Let's let's let's assume that starry decisives is an important consideration for the court Let's assume that sure What about the answer to justice Kagan's questions about The many contracts perhaps thousands of contracts Would they suddenly be endangered would they all be void could you could you address that? There is no reliance interest these contracts will operate precisely the same the day after a boot is overruled as they would before you What would happen to the Employee who said now a boot is off the books right I want back The agency feed that I was compelled to pay that was an unconstitutional exact so All of the people who paid these fees Against their will You never write to get it back No, no more than anybody had the right to get recompense under citizens united or the commercial speech cases once you relied those first amendment speeches Doctals there as I understand at the court's analysis Presumise prospectively that's all we're asking for is prospective relief It doesn't apply retroactively and to get to the point All of the benefits would remain precisely the same Simply the unions future bargaining efforts would no longer be subject to unwilling agency fee Well mr. Carpenter one year assuming that these provisions are completely severable which I imagine Depends on the contract but number two even suppose that they are severable these provisions are bargained for benefits The contracts would read differently the unions would have gotten different things if that provision had not been there So you're essentially saying that the exact same contract should go forward notwithstanding that the union has given up things Or has not gotten things because the unit the agency fee provision is in the contract No again, I must respectfully disagree as a factual matter the union did not go in and say we would have asked for a 10% increase But now we're going to sell out our members rights to a 9% increase so we can line our own pockets with agency The union they're not for sorry from from many ways of Dealing with their need for adequate funding in order to perform their collective responsibility Collective bargaining responsibilities. They asked for this way and not for other possible ways of achieving adequate funding And you would be essentially stripping them of this way and not giving them anything To replace that way well again, they didn't negotiate with the employer for funding because they don't get any funding from the employer They get it from their members so no position they took and collect the bargaining is it all affected by the completely That's how they should listen would it be illegal for the government mint as employer or government To fund the union That's a thought about that just so to my ear. It's a very tricky question under yo-hans for example The government can engage in a lot of speech that it can't compel citizens to engage in the government for example can subsidize plan parenthood but it couldn't require citizens to subsidize plan parenthood so in that sense yes, the government would have far greater leeway that said Union had a way Or something to negotiate which was right now the union Articipates in the grievance procedure And it pays certain expenses for that it could have said to the employer we're no longer getting Enough money to be the exclusive representative of every employee right so now we want you to fund certain things Well, I could very well have been part of the negotiation not in California for two reasons One is the state statute requires agency fees the employer couldn't have done anything with respect to agency fees That's all decided I said you're you're assuming I'm not assuming the state of the law is that exists now I'm assuming that we were to to undo And say they can't charge an agency fee right all right California is going to have to respond somehow it's now breaching the agreement that had with the union It's they're going to have to come to some sort of accommodation right and they would excise the agency fees Part of the con even if they did could they then Decide to fund the union. Oh, but that's a separate question If if they want it to go ahead and fund the union as I say they've got some discretion to do it I think the one area the government doesn't have the power to subsidize speech is when it's engaged a Subsidizing political speech in a viewpoint Let's take a side

. I'm talking about the the collective bargaining part of the union Okay, then I'm maybe not understanding it if if the union is could they subsidize the unions collective bargaining efforts I think they might be able to but all right, so no state Why can't they assist all of their employees? attacks for that contribution right now is the point I was trying to get to which is agency fees don't go just to collect the bargaining as we know they also go to political activity And I don't think the government could fund political activity in a viewpoint discriminatory what I'm I'm sorry, is there any history in American labor management relations at least going back? I don't know what 75 80 years of employers paying for unions I thought the union movement was against this long ago Your recollection history is correct and of course currently no government ever Fund unions indeed under the NLRA it's there were company unions but regardless I'd like two minutes to take Oh, sorry, go ahead finish finish finish Just one more sentence under the NLRA to felony for the employer to give the union's money Because it would influence the unions and contrary to the entire structure of collective is it a bargainable subject? Excuse me. Is it a bargainable subject? I mean it's a political subject guys You can an active statute that says the government will fund you but is is it bargainable? Is it is it one of those items that a union can bargain for it? It doesn't exist has never existed in American society and there's no way the public employer Particularly because agency fees as a matter of statute could all of a sudden say sure We're going to take our taxpayer dollars and start giving money to unions because they've always been funded through voluntary contributions If they did become recipients of federal or state funds that would impose all kinds of restrictions on their speech and other activities That the unions presumably would never have asked for wholly apart from any funding shortfall. I have a different somewhat different subject And I don't know how To get you to focus on this exactly Because I think there are good arguments on your side and there are good arguments on the other side When you go into this it was in my view a kind of compromise in 40 years ago But it was 40 years ago It was 40 years ago. I mean maybe Marbury versus Madison was wrong There are people who argue certain aspects work And the Concerns I I have in terms of workability are not so much the details I guess something would work out in the labor area It would certainly affect the bar. It would certainly affect the integrated bar It would certainly affect at least student fees at universities It would require overruling a host of other cases, I think At least two or three that I can find And that's quite a big deal

. It's certainly so so what is it? And you're mind that you can say From the point of view of this courts role In this society In that if of course we can overrule a compromise that was worked out over 40 years and has lasted reasonably well not perfectly I guess people could over our rule our decisions just as easily I've had a few dissents in those dissents I think I'm right and the others are wrong and they think I'm wrong and they're right All right, there are a lot of people who think that you see where I'm going I'd like you to talk for a minute because it is a matter of considerable concern to me Even when I'm on the other side of something just for you know you start overruling things What happens to the country thinking of us as a kind of stability in a world That is tough because it changes a lot And I think you put your finger on precisely the same question I think the principal reason to overrule a boot is that all of the rationales offered in support of a boot's result directly conflict with other precedent of this court So by overruling the boot you don't do what you're saying you do just the opposite if I could walk through the list for you The standard of review the the new rationale for a boot is its subject to differential government as employer review That's contrary to Harris is contrary to Knox it's contrary to a boot itself which issued pickering analysis The notion that the union's duty somehow justifies agency fees because they've got a duty to represent A non-members which we've chatted about that comes from the dissenting opinion and Leonard So you'd have to overturn Leonard which characterized this argument is turning the courts principles on its heads And is wholly unworkable in the name of preserving another precedent The notion that collective bargaining doesn't involve matters of public concern which has been offered up That's contrary to Harris a boot itself which said it was gickering which involved basic issues of school finances so you would have to strike all of those down Respondents radical arguments that it's not entitled to any first-demember protection Under the employee speech doctrine and under the glickman commercial speech doctrine is Contrary not only to a boot every a boot case and the Harris dissenting opinion because everyone recognizes There's some first-demember protection. I mean it seems to me. I guess we have one disagreement Which is how well a boot fits with all of our other employees speech cases because I think a boot fits pretty Well, it didn't cite pickering but it essentially had the exact same concerns as pickering which was the employer's interest The the government's interest as an employer and how that Related to an employee speech right and and and basically arguing for a balancing test So so really what your Argument comes down to is two very recent cases which is Harris and Knox and there you might say that Harris and Knox gave Indications that the court was Not friendly to a boot but those were two extremely recent cases and they were both cases that actually Were decided within the a boot framework in the Harris case The parties came here and explicitly asked us to overrule that case almost all the briefing What's about overruling that case and the court decided not to overrule that case and instead to say That the the employees there were were simply not public employees at all So taking two extremely recent cases which admittedly expressed some frustration with the boot But also specifically decided not to overrule the boot. I mean just seems like it's It's nothing of the kind that we usually say when we usually say that a precedent has to be overturned Because it's come into conflict with an entire body of case law Again, I must respectfully disagree. I think the classic justification for starry to sizes over turning the case is that subsequent cases have underlined the reasoning and principles there I think we and can certainly agree that Harris and Knox certainly undermined the doctrinal underpinnings of a boot the fact that they're really recent as opposed to not so recent doesn't change the fact that a boot has been Overruled citizens united pointed to two differing lines of cases in the first amendment area as its principle rationale for overturning Austin the Hudge and versus NLRB case in Logan Valley it upheld something in Lloyd Corporation It is distinguished but not overruled at Hudge and so I this doesn't accept that I let me accept that what you can do is you can go through and you're good at it and so is the others saw you know you go through the cases and you draw the line here there in the other place and I'm trying to abstract from that in a very basic way for this reason I think plus Evie Ferguson was a case that certainly should have been overruled It certainly should have been overruled because it was basic Because it was a right to treat people equally and there were millions of people who are not now You see the level of abstraction I'm working at now if I put that same level of abstraction here

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I see the following You will go out this door and you will buy hundreds of things If not thousands Where money will go from your pocket into the hands of people including many government people who will spend it on things you disagree with I don't see anything too basic in the lines are drawing there The second thing is what you said was and it's true employees can say what they want We're talking about six people in a room bargaining about late wages hours and working conditions That's pretty far removed From the heart of the first amendment and pretty close to ordinary physical activity Carried on through words Regulation if you like So I can't find a basic principle That's there that's erroneous as in these major cases that we have overruled and if you have a response to that I'd like to hear it sure as to requiring people to give money to which they don't wish to give Thomas Jefferson said that was sinful and tyrannical James Madison family said Requiring three pence is the thing so so it's not at all something that we've invented for example You couldn't require as rutan makes crystal clear people to give money to a political Organization because money is not money when it's supporting speech It is it is association with an advocacy organization and the compelled association is something that this court has consistently condemned As basic to the aboot itself said it's contrary to the most basic principles of the founding which is forced And do I take it? It was something that justice fire said you didn't respond directly to what he said if A boot falls then so do our decisions Keller on mandatory bar association on Student activities fee do you read that would be a consequence of your theory? Well, no in fact that hypothetical was completely eliminated by Harris which made it quite clear that neither Keller nor Southworth Was in any jeopardy because the rationale of those cases was significantly different than the rationale of a boot Those cases teller start with the boot mr. Carvin those cases say a boot is the framework and those cases Decide the questions that they decided specifically within that framework a lot of cases site cases But it's a site it's a this is the way we look at mandatory fee cases Again, I must respectfully disagree they do have that in common at that level of generality But there's a key distinction as Harris itself pointed out Between giving money to a bar association and giving money to a union The key thing is that the bar association is a non-speech restriction It's like what the court said in the colloquial commercial speech context the initial association has nothing to do with speech There it was regulating lawyers not advocating on behalf of lawyers bar associations do things all the time that lawyers disagree with They engage in certain kinds of litigation and not other kinds of litigation They take public policy positions on certain issues and not other issues I mean, I think it would be impossible to make a distinction along that score Keller struck down those kinds of activities by bar associations taking positions on federal jurisdiction taking position on gun control It said they could only spend you think our associations do now nothing that their that members of the bar could disagree with and find Hostile to their own views if they do it and if it's not germane to lawyer ethics or service then by definition It's violation of Keller so I sure hope the bars are not violating the clear pronouncements of this court The Keller only upheld expenditures that are a necessary incident to their principal role of regulating lawyer ethics and legal behavior All of the other things that were law-related were struck down in Keller so that is not any It's not I'm talking about two different kinds of bar associations. I mean voluntary bar associations Get into a lot of those other things you're you're just saying that those bar associations that you're compelled to join as a Condition of your practice do not get into those. Oh absolutely If if they required me to join the ABA I would have an absolute first amendment right not to do that because virtually every word out of their mouth I disagree with admit Mr. Carvin I see I see your time is like Could you address briefly the opt-in opt-out requirement an issue which I take it is in the case regardless of The way we rule on the issue we've been discussing it certainly as you're on and that's because The only it'll only affect the amount that you need to opt in or opt out on and my short answer I am running out of time is if this regime is upheld that means tomorrow the state of California could say every public employee Contributes 1% to the governor's reelection campaign unless they affirmatively opt out of doing so No one thinks realistically that's a voluntary decision to give money There's only one purpose behind that kind of requirement which is to inflate the governor's political war chest Just like the only purpose behind this is to through inadvertence and neglect inflate the unions War chest by people who really have not made a voluntary decision to do so unless there are further questions I'd like to reserve the remainder of my time

. Thank you mr. Carvin I don't do much Mr. Chief justice and may it please the court California Understands the first amendment interests that are involved in this case But the state also has critical interests in being free to manage a public workplace much like a private employer Unless we are improperly leveraging the employment role To coerce or suppress citizen speech. So let me try to briefly address why I think if we are going to have collective Marketing in the public sector Mandatory agency fees can serve important state interests without unduly burdening citizen speech Before you get before you get into that could I just ask you a preliminary question that came up earlier in the argument Do you think that the California Teachers Association is an agency of the state of California? No I think a a union that becomes an exclusive representative under the pericase has an official place in the Functioning of the school district, but it is not it does not become an organ of the state and that's actually a very important point Precisely because of the company union concern What's delicate about this from the state's point of view is that we want if we're going to have collective bargaining We need to have a system where there's one Representer that we can deal with and that representative has to be both A good partner for us from our point of view But also perceived by the employees as Representing their interests, which is why we can't take it over Well, which is why it's very important that we not fund that directly and that we not be perceived as Controlling the speech of that representative. It's hard to visualize this in a pure employer employee relationship when the collective bargaining agreement itself has to be submitted for public review and public comment That that suggests that you're doing more than simply regulating the employment relationship Well the public employment context is certainly different from the private context and that's one of the important ways We don't contest that but I think the question is before you get to the Final legislative approval or or board approval stage What kind of system can we have legitimately that will be a workable system both for our employees who overwhelmingly have shown that they Want collective bargaining and for the local managers the the actual managers of Local governments of school districts were of state agencies who need to have the practical problem of Reaching and agreement that will go in their workplace for a period of time if your employees have shown overwhelmingly that they want collective Bargaining then it seems to me the Free writer concern that's been raised is is really insignificant With respect I disagree with that because many people can want something in the sense that if you would as very advantageous for themselves But if they are given a choice they would prefer to have it for free rather than to pay for it This is a classic collective action problem So when we So from the employers point of view when we're gonna have collective bargaining We want one union to deal with we want that union to deal with all employees And so we require it to represent all employees fairly whether they supported the union or not They might have supported the rival union so they might be in favor of unionism But they supported a different one But once the majority has said this is our representative then that is going to represent all employees And it's important then from the employers point of view that that representative be adequately funded And stably funded so that they can work with us work with the employer to Reach actually but it's it's almost axiomatic that when you Are dealing with a governmental agency Many critical points are matters of public concern And is it not true that many teachers Are strongly strongly disagree with the union position on teacher tenure on merit pay on merit promotion on classroom size And you the term is free rider The union basically is making these teachers compelled riders For issues on which they strongly disagree many teachers think That they are devoted To the future of America to the future of our young people And that the union is equally devoted to that but the union is absolutely wrong In some of its positions and agency fees require as I understand it correct me if I'm wrong Agencies fees require that Employees who and teachers who disagree with those positions must nevertheless subsidize the union on those very points And Let me what I'd like to do is to separate out the important public policy issues which we do not deny crosscut Between the public sphere and the realm of citizen speech and the the isolated collective bargaining realm they do crosscut but that does not mean that the two spheres are the same So in the collective bargaining context what the employer needs is to get one agreement with one group of employees Which we do by having one union it's a democratic process the employees get to pick that union And because it's a democratic process almost it's almost guaranteed that not everyone will agree with all the positions that are taken by the union that Representes the majority of employees from the employers point of view what we need to get a contract Is to have one representative that can speak with one voice for all those disparate people now I understand that they'll be speaking on on delicate issues and the important point here is that outside The context of getting a contract we do not try to suppress at all The wide-varing rich variety of viewpoints that employees may have as citizens and they can express them in the legislative realm That can express them at the workplace just not in the bargaining room Do unions have public relations programs of our newspaper articles media programs to talk about things like merit pay Protecting underperforming teachers and so forth the unions actually make those arguments and aren't those chargeable expenses The unions engage in a variety of speech some of it is chargeable and some of it is not some of the ones I've mentioned are chargeable I believe on the current law they are and if there's a need to adjust the current law because the court feels that some of those things are more in the Political or legislative sphere than they are in the The collective bargaining sphere per se that is a more of a linar question than a food question does not require I would not the problem is that everything that is collectively bargained with the government is within the political sphere Almost by definition should the government pay higher wages or lesser wages should it promote teachers on the basis of seniority or on the basis of For all of those questions are necessarily political questions

. That's that's the major argument made by the other side And you're on or I don't disagree with that but it does not change the fact that as a government we have Two things that we're doing one is trying to run a workplace another is trying to run a government in which The debate must be wide open and we would not dream of being able to impose this See you said you agree with that you agree with that everything that negotiating over is Public policy question. No, I don't agree that every issue is a public policy question, but I don't want to Dispute the fact that many that there are Deep public policy implications to many of the topics and to the general Tenor of public employee bargaining many of us agree with that what is your best example of something that is negotiated over in a collective bargaining Agreement with a public employer that does not present a public policy question Myelage reimbursement rates or how you're going to have public safety. It's all money. That's money That's how much money is going to have to be paid to the teachers if you give more mileage expenses that cost more money and the amount of money That's going to be allocated to public education as opposed to Public housing welfare benefits. That's always a public policy issue Which is why I would say I would not try to draw the line by saying that some part of this speech is not a matter of public concern Or whatever term you want to use what I would say is that They when we're trying to run the public workplace we need to have some flexibility because for as employers We're trying to reach workable agreements to govern particular workplaces for particular periods of time And that involves compromise and it involves reaching some decisions on some of these issues and many of them are controversial But we need to have concrete decisions with one group of employees represented by one union to do that Where does the where does the state of California think the line should be drawn? Provision of California law this is Section 3546b of Of the California government code says that agency fees Maybe used for a quote the cost of lobbying activities designed to secure advantages and wages hours and other conditions and employment In addition to those secured through meeting and negotiating with the employer is that constitutional? I Don't know the answer to that question

. I don't think it's the question presented here It's not what the unions here. It's not the position that they have taken in this litigation And if there is a need to adjust that line which there might be that would be a question about where to draw the fundamental line that a boo draws But the question here is whether that one of the questions is whether that whether a booge is workable So I do think it's relevant to know whether you think that is on one side of the line or the other I think there are arguments about why that kind of thing could be considered germane to bargaining But what is most important to the state here would not be preserving that line I don't want to concede it But that is not the fundamental point here. What is fundamental is that we need to be able to run our workplaces and that involves prescending somewhat from the From the broad debates about public policy which will continue to go on but getting particular contracts and the particular speech restrictions if I might just in Excuse me. I'm sorry. Is there any Is there any legal argument or factual basis on which the state of California disagrees with the position of the union? Sorry any many we have aspect of trying to sort out We have this you know three respondents here and I'm trying to sort out the different position. Is there anything In any way in which your presentation disagrees with the unions presentation in its in its brief I don't think there's necessarily any fundamental disagreement. I think we would Emphasize that our interests here are not our primarily interests of employers and coming to practical Um Accommodations here. There was a long history in California in the 50s and 1960s of labor unrest it led to a commission that that issued a report There was very comprehensive and addressed this issue among others this issue of agent Cp's was part of the debate that went into The legislative decision in the early 70s to adopt this This system and we think that was a legitimate legislative General human you are arguing that I sympathize with with the need of a state to have An efficient system for dealing with its employees and I Can agree that dealing with just one union makes everybody's life easier Why do you think that the union would not survive Without these these fees charged to nonmembers of the union federal employee unions do do not charge Uh Agency fees to nonmembers and they seem to survive indeed. They prosper What why why is California different? The federal situation is different. They have very different scope of bargaining I wouldn't say that it's been established that they Prosper they have about a 30% membership rate and I don't think that this is a no Ship rate in in in California teaches union How many are members of the union? actual membership

. Is there anything In any way in which your presentation disagrees with the unions presentation in its in its brief I don't think there's necessarily any fundamental disagreement. I think we would Emphasize that our interests here are not our primarily interests of employers and coming to practical Um Accommodations here. There was a long history in California in the 50s and 1960s of labor unrest it led to a commission that that issued a report There was very comprehensive and addressed this issue among others this issue of agent Cp's was part of the debate that went into The legislative decision in the early 70s to adopt this This system and we think that was a legitimate legislative General human you are arguing that I sympathize with with the need of a state to have An efficient system for dealing with its employees and I Can agree that dealing with just one union makes everybody's life easier Why do you think that the union would not survive Without these these fees charged to nonmembers of the union federal employee unions do do not charge Uh Agency fees to nonmembers and they seem to survive indeed. They prosper What why why is California different? The federal situation is different. They have very different scope of bargaining I wouldn't say that it's been established that they Prosper they have about a 30% membership rate and I don't think that this is a no Ship rate in in in California teaches union How many are members of the union? actual membership. I'm afraid I don't know that mr. Frederick made Because then you pointed out the membership is no in the federal sector But there is no bargaining about pay right there's no bargaining about pay General there was no fact finding below on this assumption factual assumption Hopefully there are you no seconding at all no factual development. So There's a presumption in the question posed which is that it can survive But we don't know that factually We don't know that factually the state would prefer not to take that risk And I don't think the Constitution requires us. You're the one making me argument It isn't it isn't the job of the opponents to show that it you know that it Will survive you're the one that say we need to do this because otherwise it won't survive It seems to me the burden on is on you to suggest why that's so with you have your own The company on interest With respect your eye don't believe that what we need to show is that you know not survive without this from our point of view The question is are we using a technique that the private sector uses widely that is reasonable from the point of view Of the employer and the dozen and posing undue burden and let me just say for just a moment about the burden that's involved here Because I don't want to minimize it, but let's remember that there is no personal attribution of this speech here To any individual employee there is no restriction on any individual employees speech as a citizen either in the workplace or out of the workplace All of this speech is workplace related and if it's not then that's a matter of adjusting It's odd to say that if X is required to pay five hundred dollars for someone to espouse the belief that he doesn't Share that he is now free to go out and argue against it. That means he has to spend another five hundred dollars So that balances out makes no sense I would say here is to me you're out of this case is very much like southworth because what we have here is something where it is important to the state to have a system in which we are not the speaker Because that would defeat the purpose of this system the same way the point in southwish was to have students speak the whole idea of southwish was a public form Are you saying that the whole purpose of agency fees is to have an open public forum? No, I'm saying it's to have a bargaining forum, but that is legitimate when we have compelled to compel the Association to have that bargaining forum

. I'm afraid I don't know that mr. Frederick made Because then you pointed out the membership is no in the federal sector But there is no bargaining about pay right there's no bargaining about pay General there was no fact finding below on this assumption factual assumption Hopefully there are you no seconding at all no factual development. So There's a presumption in the question posed which is that it can survive But we don't know that factually We don't know that factually the state would prefer not to take that risk And I don't think the Constitution requires us. You're the one making me argument It isn't it isn't the job of the opponents to show that it you know that it Will survive you're the one that say we need to do this because otherwise it won't survive It seems to me the burden on is on you to suggest why that's so with you have your own The company on interest With respect your eye don't believe that what we need to show is that you know not survive without this from our point of view The question is are we using a technique that the private sector uses widely that is reasonable from the point of view Of the employer and the dozen and posing undue burden and let me just say for just a moment about the burden that's involved here Because I don't want to minimize it, but let's remember that there is no personal attribution of this speech here To any individual employee there is no restriction on any individual employees speech as a citizen either in the workplace or out of the workplace All of this speech is workplace related and if it's not then that's a matter of adjusting It's odd to say that if X is required to pay five hundred dollars for someone to espouse the belief that he doesn't Share that he is now free to go out and argue against it. That means he has to spend another five hundred dollars So that balances out makes no sense I would say here is to me you're out of this case is very much like southworth because what we have here is something where it is important to the state to have a system in which we are not the speaker Because that would defeat the purpose of this system the same way the point in southwish was to have students speak the whole idea of southwish was a public form Are you saying that the whole purpose of agency fees is to have an open public forum? No, I'm saying it's to have a bargaining forum, but that is legitimate when we have compelled to compel the Association to have that bargaining forum. It is also a commitment to have user fees that fund it Thank you general Mr. Frederick. Thank you mr. Chief Justice and may it please the court a boot correctly held that states may reasonably insist that Non-members pay their share of costs for the services provided by a union to the government and to all employees as their exclusive representative Overruling a boot now would substantially disrupt established first amendment doctrine and labor management systems in nearly half the country Let me talk about what a collective bargaining is and how the agreement is struck and how it evolves over time because it's not simply one contract Where there might be a severability provision, but it is really a system of agreements that are established over time and a body of relationships that build up And if you look at the joint appendix there are several examples of collective bargaining agreements there very long detailed Agreements that include a wide range of services that are negotiated between the union and the government and some of these are monetary Many of these are hot button issues to be sure justice Kennedy But many of them are also mundane issues about health and welfare benefits What times teachers need to show up how long their lunch break can be without having to perform a duty what the policies are for transferring teachers Between and among school districts and these are all basic services that require research legal representation Confirming and consulting communicating with members trying to ascertain What the positions of all members of the workforce are before the union presents a policy I suppose if that's so convincing the union can convince teachers to join the union Well, and in fact in California the overwhelming majority of the teachers are in the union And it's only a small percentage that have opted not to but I would go further Justice Kennedy and saying that what we are talking about here are a range of services that they're providing We're talking about a service fee for the state law that provides for the exclusive representative to be the Union when that is voted for a by a majority of the workers and here This court's cases have distinguished between Citizen speech where the very teacher who might disagree with the union's position is free to go and speak publicly about that position And employment speech where this court's cases have been extraordinarily deferential to the government and upholding restrictions on what speech employees may make But philosophically if you use Pickering in this case you're committing the error of composition you're Comparing a whole group of persons who have their views of Co-Airstrel compelled against one person that that Pickering is just in applicable on that on that ground Well, Justice Kennedy I think that it is fair to suppose that the government and deciding whether it's going to establish a relationship with its workers In order to get input is necessarily going to be dealt with a cacophony of use unless it comes up with a reasonable system of management To get those views collected and have them represented by an exclusive representative And that is the basic trade-off that a boot recognized and I would note that because different states have chosen Based on their history their culture their experiences with the labor management system in the private sector to come up with different results And here I would say that Wisconsin and Michigan which recently adopted alterations to their public management sector Established this point because on the one hand the legislature in Wisconsin decided we're going to do away with public sector agency fees for school teachers and for Government workers, but we're going to keep it for public safety officers Police officers fire fighters because we determine there's a legislative interest in having agency fees Why the firefighters brief in this case explains that many states don't have safety regulations for firefighters And so a lot of these regulations end up coming through the collective bargaining process Where firefighters work out negotiated rules to establish what is a safe way to fight a fire and all of that would still survive If the petitioner is prevail Unless your basic argument that if you do away with agency's agency fees the unions are going to collapse and not be in a position and negotiate those Safety requirements. Chief Justice the necessity Standard has never been the standard when the government is operating as an employer or proprietor It has always been a case that you judge the agency the government's decision on the basis of what is appropriate or reasonable And if you look at it from that standard what the firefighters are saying here is that it's actually essential to have Agency fees because they are using those fees to benefit all of the workers in the in the unit through getting additional equipment that the county may not be able to afford Additional training so that when they're called upon to fight a fire

. It is also a commitment to have user fees that fund it Thank you general Mr. Frederick. Thank you mr. Chief Justice and may it please the court a boot correctly held that states may reasonably insist that Non-members pay their share of costs for the services provided by a union to the government and to all employees as their exclusive representative Overruling a boot now would substantially disrupt established first amendment doctrine and labor management systems in nearly half the country Let me talk about what a collective bargaining is and how the agreement is struck and how it evolves over time because it's not simply one contract Where there might be a severability provision, but it is really a system of agreements that are established over time and a body of relationships that build up And if you look at the joint appendix there are several examples of collective bargaining agreements there very long detailed Agreements that include a wide range of services that are negotiated between the union and the government and some of these are monetary Many of these are hot button issues to be sure justice Kennedy But many of them are also mundane issues about health and welfare benefits What times teachers need to show up how long their lunch break can be without having to perform a duty what the policies are for transferring teachers Between and among school districts and these are all basic services that require research legal representation Confirming and consulting communicating with members trying to ascertain What the positions of all members of the workforce are before the union presents a policy I suppose if that's so convincing the union can convince teachers to join the union Well, and in fact in California the overwhelming majority of the teachers are in the union And it's only a small percentage that have opted not to but I would go further Justice Kennedy and saying that what we are talking about here are a range of services that they're providing We're talking about a service fee for the state law that provides for the exclusive representative to be the Union when that is voted for a by a majority of the workers and here This court's cases have distinguished between Citizen speech where the very teacher who might disagree with the union's position is free to go and speak publicly about that position And employment speech where this court's cases have been extraordinarily deferential to the government and upholding restrictions on what speech employees may make But philosophically if you use Pickering in this case you're committing the error of composition you're Comparing a whole group of persons who have their views of Co-Airstrel compelled against one person that that Pickering is just in applicable on that on that ground Well, Justice Kennedy I think that it is fair to suppose that the government and deciding whether it's going to establish a relationship with its workers In order to get input is necessarily going to be dealt with a cacophony of use unless it comes up with a reasonable system of management To get those views collected and have them represented by an exclusive representative And that is the basic trade-off that a boot recognized and I would note that because different states have chosen Based on their history their culture their experiences with the labor management system in the private sector to come up with different results And here I would say that Wisconsin and Michigan which recently adopted alterations to their public management sector Established this point because on the one hand the legislature in Wisconsin decided we're going to do away with public sector agency fees for school teachers and for Government workers, but we're going to keep it for public safety officers Police officers fire fighters because we determine there's a legislative interest in having agency fees Why the firefighters brief in this case explains that many states don't have safety regulations for firefighters And so a lot of these regulations end up coming through the collective bargaining process Where firefighters work out negotiated rules to establish what is a safe way to fight a fire and all of that would still survive If the petitioner is prevail Unless your basic argument that if you do away with agency's agency fees the unions are going to collapse and not be in a position and negotiate those Safety requirements. Chief Justice the necessity Standard has never been the standard when the government is operating as an employer or proprietor It has always been a case that you judge the agency the government's decision on the basis of what is appropriate or reasonable And if you look at it from that standard what the firefighters are saying here is that it's actually essential to have Agency fees because they are using those fees to benefit all of the workers in the in the unit through getting additional equipment that the county may not be able to afford Additional training so that when they're called upon to fight a fire. I'm sorry. They're getting Additional equipment that the county may not be able to work that's right the union members and the non members of the union in the in the Unit are putting their money together through the agency fee process so that the union is supplying something other than that That it was the same as the Scalia's question which I raised an issue and we heard it before The last colleague mentioned this California needs this Rule that it has Because it wants on the other side of the bargaining table a coherent Group of people to negotiate For the workers on wages hours working conditions etc now the chief justice said I can understand that argument If the alternative is the union is destroyed because then there's nobody Now you say that that arguments good argument because they're going to buy fire trucks and some other things Is there anything else that backs up that argument sure it gets important and I'd like you to explain yeah The flip side is that the state briefs and the city briefs that have been submitted in this court Note what happened when the agency fee process didn't occur in New York City for example There were strikes that were occurring all of the time until an agency fee the system was put into place And that enabled the city to better deliver transit services school services and the like so you have both a positive story I don't understand that I just absolutely don't understand it Why would agency fees Enable the city to do things that it couldn't do before because it enables all of the workers to know they are making a shared sacrifice for the purpose of Working together to establish a coherent position with their employer That's say that but I doesn't mean anything to me. I understand you have a union bargaining and the city says no And you're saying that if there are enforced fees to the union The city will say yes. No, what I see no connection what effort well I mean what the city is willing to to to give and collective a bargaining and whether you have agency fees Justice Scalia all I can report on in the absence of a factual record because this was basically brought as a facial challenge Is what is in the unique is briefs and cities states school districts hospitals that are management side Have supported agency fees because they find it to be a more workable system Well, having employees buy into the policies that are being established through the collective bargaining process It sounds to be like your argument cuts exactly the opposite way The the problem that's before us is whether or not individuals can be compelled to support Political views that they disagree with and you're saying well the reason they should be able to because if they do Then those political views are going to prevail they are opposed to particular funding That's why they don't want to join the union That's why they don't want to join the union because the union is pushing that But you say you should force them because then the union will prevail contrary to the Objecting employees views know what I'm saying mr. Chief Justice that the states can make rational and reasonable judgments That for their workability of a system They can have an agency fee process a boot recognized the very federalism interests that are at stake here Where different states have different experiences and this is an opportunity for the states to draw upon those distinctive experiences And coming up with a system that's fair for everyone Mr You didn't ask for this judgment

. I'm sorry. They're getting Additional equipment that the county may not be able to work that's right the union members and the non members of the union in the in the Unit are putting their money together through the agency fee process so that the union is supplying something other than that That it was the same as the Scalia's question which I raised an issue and we heard it before The last colleague mentioned this California needs this Rule that it has Because it wants on the other side of the bargaining table a coherent Group of people to negotiate For the workers on wages hours working conditions etc now the chief justice said I can understand that argument If the alternative is the union is destroyed because then there's nobody Now you say that that arguments good argument because they're going to buy fire trucks and some other things Is there anything else that backs up that argument sure it gets important and I'd like you to explain yeah The flip side is that the state briefs and the city briefs that have been submitted in this court Note what happened when the agency fee process didn't occur in New York City for example There were strikes that were occurring all of the time until an agency fee the system was put into place And that enabled the city to better deliver transit services school services and the like so you have both a positive story I don't understand that I just absolutely don't understand it Why would agency fees Enable the city to do things that it couldn't do before because it enables all of the workers to know they are making a shared sacrifice for the purpose of Working together to establish a coherent position with their employer That's say that but I doesn't mean anything to me. I understand you have a union bargaining and the city says no And you're saying that if there are enforced fees to the union The city will say yes. No, what I see no connection what effort well I mean what the city is willing to to to give and collective a bargaining and whether you have agency fees Justice Scalia all I can report on in the absence of a factual record because this was basically brought as a facial challenge Is what is in the unique is briefs and cities states school districts hospitals that are management side Have supported agency fees because they find it to be a more workable system Well, having employees buy into the policies that are being established through the collective bargaining process It sounds to be like your argument cuts exactly the opposite way The the problem that's before us is whether or not individuals can be compelled to support Political views that they disagree with and you're saying well the reason they should be able to because if they do Then those political views are going to prevail they are opposed to particular funding That's why they don't want to join the union That's why they don't want to join the union because the union is pushing that But you say you should force them because then the union will prevail contrary to the Objecting employees views know what I'm saying mr. Chief Justice that the states can make rational and reasonable judgments That for their workability of a system They can have an agency fee process a boot recognized the very federalism interests that are at stake here Where different states have different experiences and this is an opportunity for the states to draw upon those distinctive experiences And coming up with a system that's fair for everyone Mr You didn't ask for this judgment. It was thrust on you this judgment on the pleadings you did say you wanted to make a record um In the district court If you had had that opportunity to develop a record What would you have put in it? Well the first thing I would have put in it would have been a response to Justice Kennedy's question Which is that Miss Friedrichs has said publicly? She's happy with the positions the union is taking on pay It would be anomalous to suppose that we're going to decide a case of this kind of constitutional import with a lead plaintiff who has said publicly She agrees with the union's positions on can you can you think you can find one employee who doesn't no I think that that's the point mr. Don't think you can no I think that there are undoubtedly There are undoubtedly issues in a hundred-page collective bargaining agreement in which reasonable people can say we don't like where the bargain got struck but the point here is government Workability and assessing the reasonableness of the government you think you think you can I mean obviously One thing that's come up is I know that you're right on this the Taylor Law was a mess It was strike after strike But what you would like to show is that that approach compared to the assessment of wage hour and working condition related fees That the latter makes an improvement in the coherence of the union's position and therefore there will be fewer strikes That's something like that is what you're arguing and I would guess that people would have written articles about that now and and if that so Well, Justice Breyer, I guess the question is are you going to decide a case of this constitutional significance on the basis of a hypothesis Based on all right my clarity you was do you want to put in formation in the record on that point? I think that is a one of many points that a record would be helpful But let me just say that we're off red This is I suppose the Fredrick's we I suppose that your Fredrick's we could assume That a state is always benefited and is more efficient if it can suppress speech and Your decision in Garcetti justice Kennedy allowed for the suppression of the speech by the prosecutor who was in the workplace It didn't apply to Mary play it didn't apply to the protection of Underperforming teachers it didn't it didn't it didn't apply to classroom size It didn't apply to educational objectives. Those are all classic workplace situations We are talking about this The teacher Can we go back to this issue of burden? There are a lot of assumptions underlying Your adversaries position. Oh set of questions can the union survive Um hold on I have about ten of them um Is it necessary? Um and Your adversary says you or one of my colleagues has said you bear the burden But this is an overturning of a decision on starry decisis isn't it? That's correct and the point what burden do you have? Or is it your adversary who has to show no reliance interest That the foundation is wrong et cetera We submit the given the four-decade history they have the burden to demonstrate that the way the system has worked would be Unworkable if it were to be uh if it were to be sustained and and justice Kennedy back to your point I appreciate that a prosecutor's memo might be viewed in your eyes as workplace speech whereas the teachers position About what size the classroom might be may not seem the same way as workplace speech But from the government's perspective I think you have to assess that on the basis of their reasonableness Of the system that the government is talking about a whole class of persons whose speech has been Silenced not just one person Well big different their speech isn't silence they are paying a service fee so that an exclusive Representative can negotiate their health and wealth or benefits their mileage reimbursement a whole set of things voluntary teacher transfer policy the questions about when teachers have to show up how long their duty breaks duty free breaks are during the course of the day These are all relatively mundane points. I think you would agree with me And there's nothing in the agency fee process that suppresses the ability of teachers to speak out publicly And even within the process because the law itself allows for merit pay to be a subject of bargaining If a minority of the teachers can convince the majority that this is a position that the teachers also you're I think you at least agree We're dealing with some sensitive and important constitutional issues What is the the burden on the union that counter Ways against those of simply requiring opt-in as opposed to opt out at least then you You ensure that people are making a conscious decision about supporting the union Before they're compelled to do that on the second question presented We think that the decision ought to be affirmed because a boot correctly recognized that here where there was Basically no burden on the person who wanted to opt out that that was In itself and a core quote question

. It was thrust on you this judgment on the pleadings you did say you wanted to make a record um In the district court If you had had that opportunity to develop a record What would you have put in it? Well the first thing I would have put in it would have been a response to Justice Kennedy's question Which is that Miss Friedrichs has said publicly? She's happy with the positions the union is taking on pay It would be anomalous to suppose that we're going to decide a case of this kind of constitutional import with a lead plaintiff who has said publicly She agrees with the union's positions on can you can you think you can find one employee who doesn't no I think that that's the point mr. Don't think you can no I think that there are undoubtedly There are undoubtedly issues in a hundred-page collective bargaining agreement in which reasonable people can say we don't like where the bargain got struck but the point here is government Workability and assessing the reasonableness of the government you think you think you can I mean obviously One thing that's come up is I know that you're right on this the Taylor Law was a mess It was strike after strike But what you would like to show is that that approach compared to the assessment of wage hour and working condition related fees That the latter makes an improvement in the coherence of the union's position and therefore there will be fewer strikes That's something like that is what you're arguing and I would guess that people would have written articles about that now and and if that so Well, Justice Breyer, I guess the question is are you going to decide a case of this constitutional significance on the basis of a hypothesis Based on all right my clarity you was do you want to put in formation in the record on that point? I think that is a one of many points that a record would be helpful But let me just say that we're off red This is I suppose the Fredrick's we I suppose that your Fredrick's we could assume That a state is always benefited and is more efficient if it can suppress speech and Your decision in Garcetti justice Kennedy allowed for the suppression of the speech by the prosecutor who was in the workplace It didn't apply to Mary play it didn't apply to the protection of Underperforming teachers it didn't it didn't it didn't apply to classroom size It didn't apply to educational objectives. Those are all classic workplace situations We are talking about this The teacher Can we go back to this issue of burden? There are a lot of assumptions underlying Your adversaries position. Oh set of questions can the union survive Um hold on I have about ten of them um Is it necessary? Um and Your adversary says you or one of my colleagues has said you bear the burden But this is an overturning of a decision on starry decisis isn't it? That's correct and the point what burden do you have? Or is it your adversary who has to show no reliance interest That the foundation is wrong et cetera We submit the given the four-decade history they have the burden to demonstrate that the way the system has worked would be Unworkable if it were to be uh if it were to be sustained and and justice Kennedy back to your point I appreciate that a prosecutor's memo might be viewed in your eyes as workplace speech whereas the teachers position About what size the classroom might be may not seem the same way as workplace speech But from the government's perspective I think you have to assess that on the basis of their reasonableness Of the system that the government is talking about a whole class of persons whose speech has been Silenced not just one person Well big different their speech isn't silence they are paying a service fee so that an exclusive Representative can negotiate their health and wealth or benefits their mileage reimbursement a whole set of things voluntary teacher transfer policy the questions about when teachers have to show up how long their duty breaks duty free breaks are during the course of the day These are all relatively mundane points. I think you would agree with me And there's nothing in the agency fee process that suppresses the ability of teachers to speak out publicly And even within the process because the law itself allows for merit pay to be a subject of bargaining If a minority of the teachers can convince the majority that this is a position that the teachers also you're I think you at least agree We're dealing with some sensitive and important constitutional issues What is the the burden on the union that counter Ways against those of simply requiring opt-in as opposed to opt out at least then you You ensure that people are making a conscious decision about supporting the union Before they're compelled to do that on the second question presented We think that the decision ought to be affirmed because a boot correctly recognized that here where there was Basically no burden on the person who wanted to opt out that that was In itself and a core quote question. What you're saying. It's easy for the person that check a box saying I opt out It's also easy to check a box saying opt-in It's administratively actually in a system where the overwhelming majority we're talking about more than 90% of the people are paying the fees Even those that are non-chargeable fees under the Leonard line to support political activities It's administratively much easier to count a smaller number and the question is whether the suppression of their constitutional rights Is such is to rise to the level of compulsion here? We would submit to where there's a one page Check box they can send it in they are able and every petition on the other side has successfully opted out of paying those That the burden is on them to show that the government has made an unreasonable choice as to the kind of administrator scheme Well opt-in is opt-out is not always as easy as you wreck as you say and one of our prior cases I think that anybody who wanted to opt out had to send a certified letter within a certain period of time I'll suppose somebody says I don't want to pay this year. I don't want it I never want to pay what is the justification for saying that person has to opt out every single year? Well Let me just say that the perpetual opt-out is not an issue in this case And it had it been raised it very well might be an acceptable way to do to say I want to opt out until further notice That's not been presented or argued here if it were to be argued There are reasons why that might be appropriate But here having an annual Process follows this courts Hudson decision where the union is required on an annual basis to provide notice of the activities that are chargeable and non-chargeable So from the perspective of getting notice to the potential objecting member it allows more flexibility Thank you counsel You General really mr Chief justice and may please the court let me begin by summarizing the three fundamental reasons why a boot should be reaffirmed First in the four decades that a boot has been the law this courts jurisprudence in the area of of Employment relations first and immature as prudence in the area of employment relations has converged with a boot in a way that Fortifies its foundations and does not erode them because what those cases have recognized is when the government is acting as employer managing the workforce It should receive Reasonalness review in order to give it the latitude comparable to that of a private employer to manage its workforce and not exacting Scrutiny that applies when government is a sovereign regulated the citizens second in those four decades more than 20 states Have enacted an enforced laws that allow the public employers in those states to have the same latitude that Congress gave private employers to decide based on workplace needs and local conditions Whether agency fee requirements will help them achieve the purposes for which they For which they Adopt collective bargaining and the reliance goes far deeper than those 20 State laws and the thousands of contracts affecting millions of people that are based on those laws in those states The agency fee requirement has worked its way woven its way into the fabric of the relationship between workers and management in the public sphere In those states the unions have taken on such obligations as training and the like funded by agency fees that make the workplace more effective For Management as well as more effective for the employees and if you were to take those away You're going to disrupt those long-term relationships that have developed over time in the expectations that have developed over time And you're going to replace them with a different kind of a situation in which the union is going to have a different set of incentives trying to Trying to ensure that the maximum number of people are willing to pay union fees and the way that the unions are likely to try to do that is through Trying to convince employees that you that they need the union because Otherwise management is going to do them harm and I do think that that's a significant problem here for public employer perspective now In a time of budgetary constraints when difficult decisions have to be made and cuts have to be made Now is a great benefit to the employer to the government as employer to have the union participate in those judgments So that they are perceived as fair as the work by the workforce and so that the union then and affect vouchers for a management With the workforce and prevents disruption So I do think the reliance interests go very deep here and then the third point I would make is that we're talking about overruling a press in the 40 years standing There need to be needs to be a showing of changed circumstances. It seems to me now with respect to the question of The role that agency fee The role that agency fees play in the process I think it's quite important this goes to a point you raised justice Scalia a boot never said And no case since a boot has ever said That agency fees are necessary to union survival a boot couldn't have said that because when a boot rule as it did Caft Hartley had been on the books for decades and then so with respect to the private sector What Congress had said with respect to the private sector is that employers get to choose Employers get to decide whether The agency fee will help them achieve their workplace goals and what the court said in a boot was that public employers ought to have the same Kind of choice to respond to workplace needs and local conditions that prior The fact that a boot has been around for 40 years that does it affect your point at all that the main justification for a boot that's being advanced today is one that a boot did not adopt I just a pickering justification. That's what I hear Most prominently in the presentations and yet a boot did not even cite Pickering I I respectfully disagree with that as a technical matter I think a boot did cite Pickering and one looks at the briefs in a boot the parties on both sides were arguing Pickering But in terms of that but in terms of the substantive analysis think it was can't really seriously be called a pickering case No, but I think it shares Well, I when I said at the outset Mr

. What you're saying. It's easy for the person that check a box saying I opt out It's also easy to check a box saying opt-in It's administratively actually in a system where the overwhelming majority we're talking about more than 90% of the people are paying the fees Even those that are non-chargeable fees under the Leonard line to support political activities It's administratively much easier to count a smaller number and the question is whether the suppression of their constitutional rights Is such is to rise to the level of compulsion here? We would submit to where there's a one page Check box they can send it in they are able and every petition on the other side has successfully opted out of paying those That the burden is on them to show that the government has made an unreasonable choice as to the kind of administrator scheme Well opt-in is opt-out is not always as easy as you wreck as you say and one of our prior cases I think that anybody who wanted to opt out had to send a certified letter within a certain period of time I'll suppose somebody says I don't want to pay this year. I don't want it I never want to pay what is the justification for saying that person has to opt out every single year? Well Let me just say that the perpetual opt-out is not an issue in this case And it had it been raised it very well might be an acceptable way to do to say I want to opt out until further notice That's not been presented or argued here if it were to be argued There are reasons why that might be appropriate But here having an annual Process follows this courts Hudson decision where the union is required on an annual basis to provide notice of the activities that are chargeable and non-chargeable So from the perspective of getting notice to the potential objecting member it allows more flexibility Thank you counsel You General really mr Chief justice and may please the court let me begin by summarizing the three fundamental reasons why a boot should be reaffirmed First in the four decades that a boot has been the law this courts jurisprudence in the area of of Employment relations first and immature as prudence in the area of employment relations has converged with a boot in a way that Fortifies its foundations and does not erode them because what those cases have recognized is when the government is acting as employer managing the workforce It should receive Reasonalness review in order to give it the latitude comparable to that of a private employer to manage its workforce and not exacting Scrutiny that applies when government is a sovereign regulated the citizens second in those four decades more than 20 states Have enacted an enforced laws that allow the public employers in those states to have the same latitude that Congress gave private employers to decide based on workplace needs and local conditions Whether agency fee requirements will help them achieve the purposes for which they For which they Adopt collective bargaining and the reliance goes far deeper than those 20 State laws and the thousands of contracts affecting millions of people that are based on those laws in those states The agency fee requirement has worked its way woven its way into the fabric of the relationship between workers and management in the public sphere In those states the unions have taken on such obligations as training and the like funded by agency fees that make the workplace more effective For Management as well as more effective for the employees and if you were to take those away You're going to disrupt those long-term relationships that have developed over time in the expectations that have developed over time And you're going to replace them with a different kind of a situation in which the union is going to have a different set of incentives trying to Trying to ensure that the maximum number of people are willing to pay union fees and the way that the unions are likely to try to do that is through Trying to convince employees that you that they need the union because Otherwise management is going to do them harm and I do think that that's a significant problem here for public employer perspective now In a time of budgetary constraints when difficult decisions have to be made and cuts have to be made Now is a great benefit to the employer to the government as employer to have the union participate in those judgments So that they are perceived as fair as the work by the workforce and so that the union then and affect vouchers for a management With the workforce and prevents disruption So I do think the reliance interests go very deep here and then the third point I would make is that we're talking about overruling a press in the 40 years standing There need to be needs to be a showing of changed circumstances. It seems to me now with respect to the question of The role that agency fee The role that agency fees play in the process I think it's quite important this goes to a point you raised justice Scalia a boot never said And no case since a boot has ever said That agency fees are necessary to union survival a boot couldn't have said that because when a boot rule as it did Caft Hartley had been on the books for decades and then so with respect to the private sector What Congress had said with respect to the private sector is that employers get to choose Employers get to decide whether The agency fee will help them achieve their workplace goals and what the court said in a boot was that public employers ought to have the same Kind of choice to respond to workplace needs and local conditions that prior The fact that a boot has been around for 40 years that does it affect your point at all that the main justification for a boot that's being advanced today is one that a boot did not adopt I just a pickering justification. That's what I hear Most prominently in the presentations and yet a boot did not even cite Pickering I I respectfully disagree with that as a technical matter I think a boot did cite Pickering and one looks at the briefs in a boot the parties on both sides were arguing Pickering But in terms of that but in terms of the substantive analysis think it was can't really seriously be called a pickering case No, but I think it shares Well, I when I said at the outset Mr. Chief Justice is I think the key point That this courts first amendment law in the public employment context has over time converged with a boot in that The cases generally have recognized that when government is acting as employer It has interest that if government were acting as sovereign regulating the citizenry wouldn't suffice to just a Condition to thinkering is the heart of your argument. So I do want to ask you a couple of questions about it Is it different from the situation here in several respects one was brought out pickering the pickering cases involve The termination or the discipline of a public employee after a single employee after the employee has made a statement That to which the employer objects this is a prospective Rule that applies to a huge category of employees the second is whether Restrictions on what employees can say are the same as Compelling an employee to make a statement or subsidizing a state. Let me take so as to the as to the latter Yeah, there are circumstances are they're not in which um the Department of Justice could Terminator take an adverse employment action against A DOJ employee for something that that employee says as a citizen on a question of public concern that could be done could it not? Are there any circumstances in which the Department of Justice could compel an employee to make a statement? I think of private citizens. I can't think of one But that goes right to the difference right to the difference between government acting as employer Managing the workplace and government acting as sovereign regulating the citizenry in the latter situation What this court's cases would say is that that is not government acting to manage the workplace that is government leveraging its its control over the employee acting as sovereign affecting that person as well as citizen and that would get exacting scrutiny and that so that I think that's the that's the key We're not arguing that a boot applies of its own terms. We're arguing that there's an insight that underlies a boot and underlies Garcetti and frankly underlies the political affiliation cases as well because if you look at those what those cases all say contrary to what my friends say is that When government can show the political affiliation is a reasonable requirement for the effective performance of the job and question That that affiliation requirement can be upheld that again is not exacting scrutiny of reasonableness every case lines off along that axis And so I and I think that's the key point about pickering And if I could I just want to address a couple of other points you know I When a when a union is bargaining about a matter of Of public concern you saying that's that is not the same as commenting on a matter of public concern No, what I'm saying is that it occurs in the context of the the collective bargaining relationship Which is a which is has to be subject to a different set of constitutional standards It has to be because think about it with respect to collective bargaining There's a specialized channel of communication that the government sets up the government controls who can speak When the discussion is going to occur and what topics can be discussed all of that is true nobody nobody denies that But the problem is that it is not the same as a private employer That what is bargain for is in all cases a matter of public interest And that changes the That changes the situation in a way that that may require a change of the rule It's one thing to provide it for private employers

. Chief Justice is I think the key point That this courts first amendment law in the public employment context has over time converged with a boot in that The cases generally have recognized that when government is acting as employer It has interest that if government were acting as sovereign regulating the citizenry wouldn't suffice to just a Condition to thinkering is the heart of your argument. So I do want to ask you a couple of questions about it Is it different from the situation here in several respects one was brought out pickering the pickering cases involve The termination or the discipline of a public employee after a single employee after the employee has made a statement That to which the employer objects this is a prospective Rule that applies to a huge category of employees the second is whether Restrictions on what employees can say are the same as Compelling an employee to make a statement or subsidizing a state. Let me take so as to the as to the latter Yeah, there are circumstances are they're not in which um the Department of Justice could Terminator take an adverse employment action against A DOJ employee for something that that employee says as a citizen on a question of public concern that could be done could it not? Are there any circumstances in which the Department of Justice could compel an employee to make a statement? I think of private citizens. I can't think of one But that goes right to the difference right to the difference between government acting as employer Managing the workplace and government acting as sovereign regulating the citizenry in the latter situation What this court's cases would say is that that is not government acting to manage the workplace that is government leveraging its its control over the employee acting as sovereign affecting that person as well as citizen and that would get exacting scrutiny and that so that I think that's the that's the key We're not arguing that a boot applies of its own terms. We're arguing that there's an insight that underlies a boot and underlies Garcetti and frankly underlies the political affiliation cases as well because if you look at those what those cases all say contrary to what my friends say is that When government can show the political affiliation is a reasonable requirement for the effective performance of the job and question That that affiliation requirement can be upheld that again is not exacting scrutiny of reasonableness every case lines off along that axis And so I and I think that's the key point about pickering And if I could I just want to address a couple of other points you know I When a when a union is bargaining about a matter of Of public concern you saying that's that is not the same as commenting on a matter of public concern No, what I'm saying is that it occurs in the context of the the collective bargaining relationship Which is a which is has to be subject to a different set of constitutional standards It has to be because think about it with respect to collective bargaining There's a specialized channel of communication that the government sets up the government controls who can speak When the discussion is going to occur and what topics can be discussed all of that is true nobody nobody denies that But the problem is that it is not the same as a private employer That what is bargain for is in all cases a matter of public interest And that changes the That changes the situation in a way that that may require a change of the rule It's one thing to provide it for private employers. It's another thing to provide it for the government Where every matter bargain for is a matter of public interest But I guess what I would say about that Justice Scalia is what I read this Court's cases Is saying in the employee speech context and the employee petitioning context and the political affiliation context is that you yes It's not wholly free of first amendment scrutiny But recognizing the government's interest as employer and prerogatives as employer you apply reasonable misreview and not the exacting scrutiny that applies when governments regulating as a sovereign Right, I guess that isn't it you may know The case in which any government as employer is most likely to want to control what the employee says and where he has the right to do that Is likely to be a case that involves the institution's job i.e. the public interest Yes, certainly certainly that's why that's why I think There was no doubt in Garcetti that the speech was on a matter of public concern I could have said the same thing in book your borough of durier and any number of these courts other cases That's not that that's not the distinction the court is drawn the distinction the court is drawn is between government acting as employer managing the workforce and government acting as sovereign regulating the citizenry And I respectfully submit that that that distinction applies with equal force here and especially given the story Decicist considerations that that ought to govern this court's decision in this context That is more than sufficient to uphold reaffirmable because as I said what this court's cases have recognized through all the public employer context is the same principle for which a booge stands General you seem and everybody seems to equate Government subsidy with government speech do you think our cases give government subsidy the same analysis as they give um Compiled speech or compelled silence my answer mr. Chief Justice What I would say about that just so to more is that in this context the subsidy goes to the process of Contract formation contract administration within that collective bargaining context that I described earlier that of necessity Different First Amendment standard has to apply to thank you general three minutes mr. Carman Thank you as to the absence of a factual record here It's important to point out that we gave them an amended answer where they can make any allegation they wanted and at page four of their so-called Opposition this set to quote the unions do not oppose the entry of a judgment on the pleading why is that because They certainly it's their burden to argue for example that agency fees will lead to the demise of the union But they didn't make any such allegation in their answer They didn't make any such allegation in response to Justice Ginsburg's question And they've got all the facts in terms of the unions fiscal well-being That's because they can't make such an allegation in the real world

. It's another thing to provide it for the government Where every matter bargain for is a matter of public interest But I guess what I would say about that Justice Scalia is what I read this Court's cases Is saying in the employee speech context and the employee petitioning context and the political affiliation context is that you yes It's not wholly free of first amendment scrutiny But recognizing the government's interest as employer and prerogatives as employer you apply reasonable misreview and not the exacting scrutiny that applies when governments regulating as a sovereign Right, I guess that isn't it you may know The case in which any government as employer is most likely to want to control what the employee says and where he has the right to do that Is likely to be a case that involves the institution's job i.e. the public interest Yes, certainly certainly that's why that's why I think There was no doubt in Garcetti that the speech was on a matter of public concern I could have said the same thing in book your borough of durier and any number of these courts other cases That's not that that's not the distinction the court is drawn the distinction the court is drawn is between government acting as employer managing the workforce and government acting as sovereign regulating the citizenry And I respectfully submit that that that distinction applies with equal force here and especially given the story Decicist considerations that that ought to govern this court's decision in this context That is more than sufficient to uphold reaffirmable because as I said what this court's cases have recognized through all the public employer context is the same principle for which a booge stands General you seem and everybody seems to equate Government subsidy with government speech do you think our cases give government subsidy the same analysis as they give um Compiled speech or compelled silence my answer mr. Chief Justice What I would say about that just so to more is that in this context the subsidy goes to the process of Contract formation contract administration within that collective bargaining context that I described earlier that of necessity Different First Amendment standard has to apply to thank you general three minutes mr. Carman Thank you as to the absence of a factual record here It's important to point out that we gave them an amended answer where they can make any allegation they wanted and at page four of their so-called Opposition this set to quote the unions do not oppose the entry of a judgment on the pleading why is that because They certainly it's their burden to argue for example that agency fees will lead to the demise of the union But they didn't make any such allegation in their answer They didn't make any such allegation in response to Justice Ginsburg's question And they've got all the facts in terms of the unions fiscal well-being That's because they can't make such an allegation in the real world. How do we know that? 25 states prohibit agency fees not one union Read the amiki see if you can see one example of a union capitulating because of that the federal government doesn't allow agency fees And only a third of the members are union members and yet that agent that union survives Whereas here we have 90% union membership and mr. Frederick said 90% of the nonmembers Continued to contribute so the notion that anything could happen adversely here simply doesn't square with things The notion that a boot put forth that there's some federal policy in favor of agency fees is completely contrary to the fact 29 usc 6164b Allows excuse me prohibits agency fees if the state prohibits So it allows states to prohibit agency fees Conversely it preempts states that seek to require agency fees So the federal policy not only with respect to their own workforce But to this respect to the private workforce is contrary to agency fees In response to justice Kennedy's question. Yes There's a stark difference between single personnel decisions and group decisions NTEU which is a pickering case makes that quite clear even in the pickering context when there was a general rule With respect to outside honorarium the court made it clear that the burden of justification is much higher They haven't come close to this burden of justification because they can't possibly show That agency fees will lead to the end of the union and contrary to my brethren That's the only thing that matters we're talking about the government's interest as an employer All they care about according to a boot is having one union instead of two so they only have to speak to one person They don't care about how robust or effective this union is indeed if anything They don't want them to be effective because nobody wants a strong bargaining partner that's going to drive up public expenditures and and have a So what do you do with what do you do with the the law enforcement people who submitted their brief who said the unions actually do training They provide equipment the county can't afford with fees So there what the general has been saying is we have to leave it to each state to decide because with This kind of agency fee there are things that unions can do that we would choose not to do I am the unions in California do teacher training Yeah exactly and they do fire training They do safety training can you think of something that's more a matter of public concern? That's more of an ideological point that's more important and yet they dismiss these as somehow prosaic issues They're basic to our democracy and that's why we have an absolute right not to subsidize it No one's are at these things why if you're receiving the benefits of it Why it's your benefit you may disagree with that judgment right and you and you can speak about it Because why is it hurting your first amendment right if you can speak There's a great ongoing debate about teacher training class size in education reform today The unions have their right to take their side of that view what they don't have to do Is a right to demand that the other side subsidize their views on these essential questions of a basic public importance Thank you counsel the case is submitted

We'll hear argument this morning in case 14 915 Friedrichs versus the California Teachers Association at all Mr. Carvin Mr. Chief Justice and may it please the court every year Petitioners are required to provide significant support to a group that advocates an ideological viewpoint Which they oppose and do not wish to subsidize a Boots authorization of this clear first amendment violation should be overturned both to end this ongoing depravation of basic speech and association rights and to restore consistency and predictability to the courts first amendment George is a permissible in your view to allow the union to be the exclusive Representative so that nobody else is at the bargaining table. Yes, that's fine with us our objection of course is being forced to subsidize that exclusive representative the fact that they are exclusive representative Impinges on my clients because it disables them from individually negotiating With the school board, but that is justified by the need for an exclusive representative And that is why indeed Requiring agency fees in the collective bargaining context is less justified than for example requiring agency fees to support union lobby In the collective bargaining context we are required to free ride on the union because they are the exclusive Representative and we don't have our own vehicle So the free rider justification is far weaker in the collective bargaining context than it is in the union lobbying context Mr. Carvin is is it okay to force somebody to contribute? To a cause that he does believe in I wouldn't think you're either you could force Republicans to give contribute Yeah, that's that's what I'm thinking could you enact a law and let's say the national political parties are in trouble So they enact a law that says all all members of the Republican Party if you want to be a member you have to contribute so much money No, is that okay? No, it's not and that's because the bedrock principle is Harris made clear is not whether or not you vividly oppose what they're saying it's because You don't wish to subsidize exactly so I don't know why you're putting so much on the fact that you're your clients oppose it really wouldn't matter would it? No, and I don't I did want to point out that That's the reason that they've brought this lawsuit but but no your thousand percent right your honor if you if you were to prevail What would happen with private employers? And a state which said that there should be a union shop Nothing, Your Honor and because because the First Amendment doesn't apply to private employers and because in back the court Established the rules for agency shops based on the statute without any first I think that's correct as a basic distinction It is true though assuming that you have a state statute which allows an agency shop or a closed Closhoff that that is state participation in the very kind of coerced membership and coerced speech that you're objecting to Well, I don't in candor think that that would create state action under the Court's modern jurisprudence such as Mousslaj where it turns on who is making the decision That is being objected to and your hypothetical would be the private employer but that aside as the court made clear in Harris even if it did reach the first Amendment there's a there's a serious difference between grudging authorization or the government permitting Private employers to engage in agency shops and the government itself in Affirmatively imposing them on its own public employees What is the real way labor act? I ponder the real way labor act. Yes You answered this is Kennedy that in the private sector This is all right you can have an agency shop how about under the real way labor act? Well as you know from street you can have agency shops but the agency fees can only go to Things that are germane to collect a bargain in other words they impose the abude rule in the private sector as a matter of statutory interpretation and nothing the court says about it But you don't have any first amendment Augument about that about the either the private sector or railroads Not a lawyer or we strictly limiting ourselves to public employees because public Employers obviously are subject to far greater constraints under the first amendment. One of the points of our public employee cases generally Mr. Carvin essentially to Ensure that when the government acts as an employer That the government be put in the same position as a private employer In other words that the various constraints that would Constraint the government when it's acting a sovereign fall away and a different and lesser set of constraints apply That are meant essentially to ensure that the government doesn't use its position as leverage over things that Ortoned to be able to control but that the government can do the same things that a private employer can and so why doesn't this fall Within that category of things in other words you've just said Private employer can decide To do this that's not a constitutional problem so too with a government employer For two reasons just kidding first I must respectfully disagree with the premise none of the courts first amendment jurisprudence Quets says public employers at the same rights as private employers Private employers under the Constitution can discriminate on the basis of political affiliation They could even discriminate on the basis of sexual orientation But nobody thinks that public employers can do that Plus which even under Pickering for example the deferential review you referring to Imposes greater constraints on public employers than private employers Private employers miscarving But there's a lesser set of constraints and and the lesser set is basically to draw a line and to ensure that the government doesn't use Its position as employer to do things it more and properly to do But the the government when it's acting as an employer with respect to its employee workforce really ought to be able to do the same things That a private employer can the courts government is employer speech And first amendment draw clear distinction between Restricting employee speech like under the Pickering line of cases where there is deferential review and circumstances such as this where they do leverage the employment relationship To coerce the employee to subsidize or associate with an outside group But obviously for example root hand is subject to strict scrutiny because they are leveraging the employment relationship The force to associate with a political party With that sound like you're drawing a distinction between restricting speech and subsidizing speech And I had always thought that these were two sides of the same point that compelled speech is is is is no less and no greater And offense than compelled silence. Oh, yeah, certainly in terms of petitioners rights, but your honor the scrutiny given to the speech being subsidized Doesn't dictate the level of speech scrutiny given to the compulsion of speech for example That you can stop unions from making political contributions under the case law But that hardly suggests you could compel a non-member to subsidize the union's contributions you can stop public employees under the hatchback from engaging in basic political participation But that hardly suggests that you could require a non-member to subsidize political activity So there's always been a clear distinction in the case law Between those two things precisely because subsidization is an entirely different infringement than restricting employee speech Restricting employee speech is an inherent part of the employment relationship The employer has to be able to restrict the employee speech as is court is frequently noted or you couldn't have a workplace Plus which we give deferential review because we don't want the federal judiciary Micromanaging the literally hundreds of thousands of personnel decisions that public employers make every day Neither of those concerns is present when you have a Catechal-Goral-Coral that requires one set of employees to subsidize an outside advocacy group like a political party or like A union and that's because you're not involving the federal judiciary in personnel decisions And it's certainly not an inherent part of the employment relationship It is to use your phrase leveraging the employment relationship to require something that the state couldn't require Why are we treating Government differently than a private employer? You just earlier said and I think our Our faces are replete With the point that as employer The government can already restrict speech which is I think a higher problem than subsidization We've already permitted subsidization of our associations of government programs We've permitted assessments on a lot of different levels So why can't the government as employer create a state Entity because this union under california law is a state entity No, oh, I beg to differ. Hold on mr. Caron. I'll get you this section. Sure. It says When recognized as the exclusive bargaining representative a union assumes an official position in the Operational structure of a school so it seems to me that and california tells the union what topics again Negotiate on it it requires them to do training And in the end it accepts their recommendations with respect to co to the issues of employment at its own will meaning the state is creating the union As part of the employment training and other responsibilities Just sort of my everything. It's important to draw a distinction between having an official position They certainly do they are the exclusive representative of the employees and suggesting that they are somehow state actors If they were state actors the state legislature could tell the unions not to advocate pay raises It could tell them not to oh in fact them might be able to do that. I don't it tells them what they can They give the state legislature has given them the right to do that right what would take away From their right to say no you can't bargain on these particular topics the first men in other words The scope of collective bargaining is obviously something the state can dictate it could never dictate the union's position on collective Absolutely Well, then that's my point But of course if the if they were state officials sub subordinate to the state legislature the state legislature could tell them Don't advocate pay raises don't advocate this for health and benefit Well, so you wouldn't say don't advocate this with respect to the state legislature But they could say That's not going to be the subject of discussion at the bargaining table those are two different things altogether Well again, we need to distinguish being collective bargaining and lobby exactly exactly and and here's the point they couldn't Collect the bargaining is unique because it requires Public officials to meet negotiating good faith and mediate any impasses with unions None of that exists in lobbying for example state legislators could close their door when even even with what even Aren't charge suppose the the union has an article or a public relations campaign um to protest merit pay I take it. That's a chargeable expense. Yes underliners and and so it's so collective bargaining uh in in in in this instance subsumes includes This wide-ranging effort on the part of the union to have a public relations campaign in favor of Principles that some of its members that some teachers strongly objective exactly your honor and my point in response to justice So to my year would be if they were really state officials subject to subordination by the state legislature The state legislature could say just like if they could say to their own employees Don't run public relations campaigns adverse to the government and in the key point is I think they say you can abandon you can ban collective bargaining, but you can't ban lobby But it's important to focus on why that is so the reason that is so is because we are imposing an obligation on public officials and collect the bargaining And exist nowhere else to negotiate in good faith with the union um But they couldn't tell the union don't advocate to the school board pay raises and things like that They can simply revoke collective bargaining by saying just like lob the state legislature the school board doesn't have to listen So the distinction is between what public officials have to meet and negotiate on But that doesn't translate into any ability to tell the union what to say or do and I'm assuming that the sponsor will agree with that But the teachers can lobby There's nothing wrong with the teachers speaking and that's the whole point the teachers can lobby They can go to the state legislature just like the union can just like the union can and yet they can't be forced to subsidize the unions labs. So what is your law? But with respect to collective bargaining they can't negotiate so so the free rider rash now is much weaker in the collective bargaining context Because the teachers write to negotiate with the public officials that the union is talking to is is Extinguished in those circumstances even though in lobbying they can engage in their own lobbying But we don't allow agency fees for lobbying mr Carvin you come here of course with a heavy burden That's always true in cases where somebody asks us to overrule a decision It seems to be particularly true here. This is a case in which there are tens of thousands of contracts with these provisions Those contracts affect millions of employees maybe as high as 10 million employees So What special justification are you offering here? They're too special for justification It's justice keg and the first one is that this Abood erroneously denies a fundamental right it doesn't expand a fundamental right and as the court made clear and gant The right of the citizen not to be subjected to unconstitutionalist treatment Outweighs any reliance or predictability interests of starry decisions say this in your excuse me You say that a lot in your briefs, but I guess I found it hard to understand that the idea that every time That we deny a claim of right whether it's the first amendment or the fourth amendment or the fourthteenth amendment that that denial of the claim would not have any starry decisives effect I mean we do that constantly we do that Uh Tens of times every year But but you were asking what if the court concludes that a bood was erroneous what special justification is? Yes, if you are answer is essentially you don't need a special justification if the initial decision Um improperly denied a claim of right right I guess I'm saying that I find that an extremely difficult concept to understand it would take away Starry decisives effect from numerous I mean just Hundreds thousands of our decisions, but just escaping with respect I think the proofs in the pudding the court has never upheld an erroneous denial of a right one starry decisives And you think all the fourth amendment cases in your opinion are correct I mean, you know the police can go search a car the good faith rule In respect to Admission of evidence that we seized on Yeah, unlawfully under the fourth amendment. I read a lot of criticism of those things in the paper and It seems to me you could get people who were judges who were up here who thought that the fourth amendment should be really expanded And in fact, there should be no rule That gives police any special authority to search a car There should be no rule that that stops any impudence from coming in I mean there dozens of cases where this court has denied individual rights and you're saying all those cases are now free of any starry Decisive inhibition is at the point or is it just labor union? No, no Your Honor, in fact the fourth amendment is non-hypothetical that was what gant and volumine And gant is the one that I was quoting when it said the right to constitutional treatment Outweighs the reliance interests of starry decisives But if I could move to my side. Oh, what about the eighth amendment? That's a good one There's an individual right something perhaps against capital punishment the court is consistently ruled against it So I guess if that's ever considered again under your view the court would give no Weight to starry the size if the court was convinced that the capital punishment was clearly Outlawed by the Constitution I think it would be very strange to tell people were being executed in the future That even though this is an unconstitutional execution we are bound by our erroneous prior decisions Let's let's let's assume that starry decisives is an important consideration for the court Let's assume that sure What about the answer to justice Kagan's questions about The many contracts perhaps thousands of contracts Would they suddenly be endangered would they all be void could you could you address that? There is no reliance interest these contracts will operate precisely the same the day after a boot is overruled as they would before you What would happen to the Employee who said now a boot is off the books right I want back The agency feed that I was compelled to pay that was an unconstitutional exact so All of the people who paid these fees Against their will You never write to get it back No, no more than anybody had the right to get recompense under citizens united or the commercial speech cases once you relied those first amendment speeches Doctals there as I understand at the court's analysis Presumise prospectively that's all we're asking for is prospective relief It doesn't apply retroactively and to get to the point All of the benefits would remain precisely the same Simply the unions future bargaining efforts would no longer be subject to unwilling agency fee Well mr. Carpenter one year assuming that these provisions are completely severable which I imagine Depends on the contract but number two even suppose that they are severable these provisions are bargained for benefits The contracts would read differently the unions would have gotten different things if that provision had not been there So you're essentially saying that the exact same contract should go forward notwithstanding that the union has given up things Or has not gotten things because the unit the agency fee provision is in the contract No again, I must respectfully disagree as a factual matter the union did not go in and say we would have asked for a 10% increase But now we're going to sell out our members rights to a 9% increase so we can line our own pockets with agency The union they're not for sorry from from many ways of Dealing with their need for adequate funding in order to perform their collective responsibility Collective bargaining responsibilities. They asked for this way and not for other possible ways of achieving adequate funding And you would be essentially stripping them of this way and not giving them anything To replace that way well again, they didn't negotiate with the employer for funding because they don't get any funding from the employer They get it from their members so no position they took and collect the bargaining is it all affected by the completely That's how they should listen would it be illegal for the government mint as employer or government To fund the union That's a thought about that just so to my ear. It's a very tricky question under yo-hans for example The government can engage in a lot of speech that it can't compel citizens to engage in the government for example can subsidize plan parenthood but it couldn't require citizens to subsidize plan parenthood so in that sense yes, the government would have far greater leeway that said Union had a way Or something to negotiate which was right now the union Articipates in the grievance procedure And it pays certain expenses for that it could have said to the employer we're no longer getting Enough money to be the exclusive representative of every employee right so now we want you to fund certain things Well, I could very well have been part of the negotiation not in California for two reasons One is the state statute requires agency fees the employer couldn't have done anything with respect to agency fees That's all decided I said you're you're assuming I'm not assuming the state of the law is that exists now I'm assuming that we were to to undo And say they can't charge an agency fee right all right California is going to have to respond somehow it's now breaching the agreement that had with the union It's they're going to have to come to some sort of accommodation right and they would excise the agency fees Part of the con even if they did could they then Decide to fund the union. Oh, but that's a separate question If if they want it to go ahead and fund the union as I say they've got some discretion to do it I think the one area the government doesn't have the power to subsidize speech is when it's engaged a Subsidizing political speech in a viewpoint Let's take a side. I'm talking about the the collective bargaining part of the union Okay, then I'm maybe not understanding it if if the union is could they subsidize the unions collective bargaining efforts I think they might be able to but all right, so no state Why can't they assist all of their employees? attacks for that contribution right now is the point I was trying to get to which is agency fees don't go just to collect the bargaining as we know they also go to political activity And I don't think the government could fund political activity in a viewpoint discriminatory what I'm I'm sorry, is there any history in American labor management relations at least going back? I don't know what 75 80 years of employers paying for unions I thought the union movement was against this long ago Your recollection history is correct and of course currently no government ever Fund unions indeed under the NLRA it's there were company unions but regardless I'd like two minutes to take Oh, sorry, go ahead finish finish finish Just one more sentence under the NLRA to felony for the employer to give the union's money Because it would influence the unions and contrary to the entire structure of collective is it a bargainable subject? Excuse me. Is it a bargainable subject? I mean it's a political subject guys You can an active statute that says the government will fund you but is is it bargainable? Is it is it one of those items that a union can bargain for it? It doesn't exist has never existed in American society and there's no way the public employer Particularly because agency fees as a matter of statute could all of a sudden say sure We're going to take our taxpayer dollars and start giving money to unions because they've always been funded through voluntary contributions If they did become recipients of federal or state funds that would impose all kinds of restrictions on their speech and other activities That the unions presumably would never have asked for wholly apart from any funding shortfall. I have a different somewhat different subject And I don't know how To get you to focus on this exactly Because I think there are good arguments on your side and there are good arguments on the other side When you go into this it was in my view a kind of compromise in 40 years ago But it was 40 years ago It was 40 years ago. I mean maybe Marbury versus Madison was wrong There are people who argue certain aspects work And the Concerns I I have in terms of workability are not so much the details I guess something would work out in the labor area It would certainly affect the bar. It would certainly affect the integrated bar It would certainly affect at least student fees at universities It would require overruling a host of other cases, I think At least two or three that I can find And that's quite a big deal. It's certainly so so what is it? And you're mind that you can say From the point of view of this courts role In this society In that if of course we can overrule a compromise that was worked out over 40 years and has lasted reasonably well not perfectly I guess people could over our rule our decisions just as easily I've had a few dissents in those dissents I think I'm right and the others are wrong and they think I'm wrong and they're right All right, there are a lot of people who think that you see where I'm going I'd like you to talk for a minute because it is a matter of considerable concern to me Even when I'm on the other side of something just for you know you start overruling things What happens to the country thinking of us as a kind of stability in a world That is tough because it changes a lot And I think you put your finger on precisely the same question I think the principal reason to overrule a boot is that all of the rationales offered in support of a boot's result directly conflict with other precedent of this court So by overruling the boot you don't do what you're saying you do just the opposite if I could walk through the list for you The standard of review the the new rationale for a boot is its subject to differential government as employer review That's contrary to Harris is contrary to Knox it's contrary to a boot itself which issued pickering analysis The notion that the union's duty somehow justifies agency fees because they've got a duty to represent A non-members which we've chatted about that comes from the dissenting opinion and Leonard So you'd have to overturn Leonard which characterized this argument is turning the courts principles on its heads And is wholly unworkable in the name of preserving another precedent The notion that collective bargaining doesn't involve matters of public concern which has been offered up That's contrary to Harris a boot itself which said it was gickering which involved basic issues of school finances so you would have to strike all of those down Respondents radical arguments that it's not entitled to any first-demember protection Under the employee speech doctrine and under the glickman commercial speech doctrine is Contrary not only to a boot every a boot case and the Harris dissenting opinion because everyone recognizes There's some first-demember protection. I mean it seems to me. I guess we have one disagreement Which is how well a boot fits with all of our other employees speech cases because I think a boot fits pretty Well, it didn't cite pickering but it essentially had the exact same concerns as pickering which was the employer's interest The the government's interest as an employer and how that Related to an employee speech right and and and basically arguing for a balancing test So so really what your Argument comes down to is two very recent cases which is Harris and Knox and there you might say that Harris and Knox gave Indications that the court was Not friendly to a boot but those were two extremely recent cases and they were both cases that actually Were decided within the a boot framework in the Harris case The parties came here and explicitly asked us to overrule that case almost all the briefing What's about overruling that case and the court decided not to overrule that case and instead to say That the the employees there were were simply not public employees at all So taking two extremely recent cases which admittedly expressed some frustration with the boot But also specifically decided not to overrule the boot. I mean just seems like it's It's nothing of the kind that we usually say when we usually say that a precedent has to be overturned Because it's come into conflict with an entire body of case law Again, I must respectfully disagree. I think the classic justification for starry to sizes over turning the case is that subsequent cases have underlined the reasoning and principles there I think we and can certainly agree that Harris and Knox certainly undermined the doctrinal underpinnings of a boot the fact that they're really recent as opposed to not so recent doesn't change the fact that a boot has been Overruled citizens united pointed to two differing lines of cases in the first amendment area as its principle rationale for overturning Austin the Hudge and versus NLRB case in Logan Valley it upheld something in Lloyd Corporation It is distinguished but not overruled at Hudge and so I this doesn't accept that I let me accept that what you can do is you can go through and you're good at it and so is the others saw you know you go through the cases and you draw the line here there in the other place and I'm trying to abstract from that in a very basic way for this reason I think plus Evie Ferguson was a case that certainly should have been overruled It certainly should have been overruled because it was basic Because it was a right to treat people equally and there were millions of people who are not now You see the level of abstraction I'm working at now if I put that same level of abstraction here. I see the following You will go out this door and you will buy hundreds of things If not thousands Where money will go from your pocket into the hands of people including many government people who will spend it on things you disagree with I don't see anything too basic in the lines are drawing there The second thing is what you said was and it's true employees can say what they want We're talking about six people in a room bargaining about late wages hours and working conditions That's pretty far removed From the heart of the first amendment and pretty close to ordinary physical activity Carried on through words Regulation if you like So I can't find a basic principle That's there that's erroneous as in these major cases that we have overruled and if you have a response to that I'd like to hear it sure as to requiring people to give money to which they don't wish to give Thomas Jefferson said that was sinful and tyrannical James Madison family said Requiring three pence is the thing so so it's not at all something that we've invented for example You couldn't require as rutan makes crystal clear people to give money to a political Organization because money is not money when it's supporting speech It is it is association with an advocacy organization and the compelled association is something that this court has consistently condemned As basic to the aboot itself said it's contrary to the most basic principles of the founding which is forced And do I take it? It was something that justice fire said you didn't respond directly to what he said if A boot falls then so do our decisions Keller on mandatory bar association on Student activities fee do you read that would be a consequence of your theory? Well, no in fact that hypothetical was completely eliminated by Harris which made it quite clear that neither Keller nor Southworth Was in any jeopardy because the rationale of those cases was significantly different than the rationale of a boot Those cases teller start with the boot mr. Carvin those cases say a boot is the framework and those cases Decide the questions that they decided specifically within that framework a lot of cases site cases But it's a site it's a this is the way we look at mandatory fee cases Again, I must respectfully disagree they do have that in common at that level of generality But there's a key distinction as Harris itself pointed out Between giving money to a bar association and giving money to a union The key thing is that the bar association is a non-speech restriction It's like what the court said in the colloquial commercial speech context the initial association has nothing to do with speech There it was regulating lawyers not advocating on behalf of lawyers bar associations do things all the time that lawyers disagree with They engage in certain kinds of litigation and not other kinds of litigation They take public policy positions on certain issues and not other issues I mean, I think it would be impossible to make a distinction along that score Keller struck down those kinds of activities by bar associations taking positions on federal jurisdiction taking position on gun control It said they could only spend you think our associations do now nothing that their that members of the bar could disagree with and find Hostile to their own views if they do it and if it's not germane to lawyer ethics or service then by definition It's violation of Keller so I sure hope the bars are not violating the clear pronouncements of this court The Keller only upheld expenditures that are a necessary incident to their principal role of regulating lawyer ethics and legal behavior All of the other things that were law-related were struck down in Keller so that is not any It's not I'm talking about two different kinds of bar associations. I mean voluntary bar associations Get into a lot of those other things you're you're just saying that those bar associations that you're compelled to join as a Condition of your practice do not get into those. Oh absolutely If if they required me to join the ABA I would have an absolute first amendment right not to do that because virtually every word out of their mouth I disagree with admit Mr. Carvin I see I see your time is like Could you address briefly the opt-in opt-out requirement an issue which I take it is in the case regardless of The way we rule on the issue we've been discussing it certainly as you're on and that's because The only it'll only affect the amount that you need to opt in or opt out on and my short answer I am running out of time is if this regime is upheld that means tomorrow the state of California could say every public employee Contributes 1% to the governor's reelection campaign unless they affirmatively opt out of doing so No one thinks realistically that's a voluntary decision to give money There's only one purpose behind that kind of requirement which is to inflate the governor's political war chest Just like the only purpose behind this is to through inadvertence and neglect inflate the unions War chest by people who really have not made a voluntary decision to do so unless there are further questions I'd like to reserve the remainder of my time. Thank you mr. Carvin I don't do much Mr. Chief justice and may it please the court California Understands the first amendment interests that are involved in this case But the state also has critical interests in being free to manage a public workplace much like a private employer Unless we are improperly leveraging the employment role To coerce or suppress citizen speech. So let me try to briefly address why I think if we are going to have collective Marketing in the public sector Mandatory agency fees can serve important state interests without unduly burdening citizen speech Before you get before you get into that could I just ask you a preliminary question that came up earlier in the argument Do you think that the California Teachers Association is an agency of the state of California? No I think a a union that becomes an exclusive representative under the pericase has an official place in the Functioning of the school district, but it is not it does not become an organ of the state and that's actually a very important point Precisely because of the company union concern What's delicate about this from the state's point of view is that we want if we're going to have collective bargaining We need to have a system where there's one Representer that we can deal with and that representative has to be both A good partner for us from our point of view But also perceived by the employees as Representing their interests, which is why we can't take it over Well, which is why it's very important that we not fund that directly and that we not be perceived as Controlling the speech of that representative. It's hard to visualize this in a pure employer employee relationship when the collective bargaining agreement itself has to be submitted for public review and public comment That that suggests that you're doing more than simply regulating the employment relationship Well the public employment context is certainly different from the private context and that's one of the important ways We don't contest that but I think the question is before you get to the Final legislative approval or or board approval stage What kind of system can we have legitimately that will be a workable system both for our employees who overwhelmingly have shown that they Want collective bargaining and for the local managers the the actual managers of Local governments of school districts were of state agencies who need to have the practical problem of Reaching and agreement that will go in their workplace for a period of time if your employees have shown overwhelmingly that they want collective Bargaining then it seems to me the Free writer concern that's been raised is is really insignificant With respect I disagree with that because many people can want something in the sense that if you would as very advantageous for themselves But if they are given a choice they would prefer to have it for free rather than to pay for it This is a classic collective action problem So when we So from the employers point of view when we're gonna have collective bargaining We want one union to deal with we want that union to deal with all employees And so we require it to represent all employees fairly whether they supported the union or not They might have supported the rival union so they might be in favor of unionism But they supported a different one But once the majority has said this is our representative then that is going to represent all employees And it's important then from the employers point of view that that representative be adequately funded And stably funded so that they can work with us work with the employer to Reach actually but it's it's almost axiomatic that when you Are dealing with a governmental agency Many critical points are matters of public concern And is it not true that many teachers Are strongly strongly disagree with the union position on teacher tenure on merit pay on merit promotion on classroom size And you the term is free rider The union basically is making these teachers compelled riders For issues on which they strongly disagree many teachers think That they are devoted To the future of America to the future of our young people And that the union is equally devoted to that but the union is absolutely wrong In some of its positions and agency fees require as I understand it correct me if I'm wrong Agencies fees require that Employees who and teachers who disagree with those positions must nevertheless subsidize the union on those very points And Let me what I'd like to do is to separate out the important public policy issues which we do not deny crosscut Between the public sphere and the realm of citizen speech and the the isolated collective bargaining realm they do crosscut but that does not mean that the two spheres are the same So in the collective bargaining context what the employer needs is to get one agreement with one group of employees Which we do by having one union it's a democratic process the employees get to pick that union And because it's a democratic process almost it's almost guaranteed that not everyone will agree with all the positions that are taken by the union that Representes the majority of employees from the employers point of view what we need to get a contract Is to have one representative that can speak with one voice for all those disparate people now I understand that they'll be speaking on on delicate issues and the important point here is that outside The context of getting a contract we do not try to suppress at all The wide-varing rich variety of viewpoints that employees may have as citizens and they can express them in the legislative realm That can express them at the workplace just not in the bargaining room Do unions have public relations programs of our newspaper articles media programs to talk about things like merit pay Protecting underperforming teachers and so forth the unions actually make those arguments and aren't those chargeable expenses The unions engage in a variety of speech some of it is chargeable and some of it is not some of the ones I've mentioned are chargeable I believe on the current law they are and if there's a need to adjust the current law because the court feels that some of those things are more in the Political or legislative sphere than they are in the The collective bargaining sphere per se that is a more of a linar question than a food question does not require I would not the problem is that everything that is collectively bargained with the government is within the political sphere Almost by definition should the government pay higher wages or lesser wages should it promote teachers on the basis of seniority or on the basis of For all of those questions are necessarily political questions. That's that's the major argument made by the other side And you're on or I don't disagree with that but it does not change the fact that as a government we have Two things that we're doing one is trying to run a workplace another is trying to run a government in which The debate must be wide open and we would not dream of being able to impose this See you said you agree with that you agree with that everything that negotiating over is Public policy question. No, I don't agree that every issue is a public policy question, but I don't want to Dispute the fact that many that there are Deep public policy implications to many of the topics and to the general Tenor of public employee bargaining many of us agree with that what is your best example of something that is negotiated over in a collective bargaining Agreement with a public employer that does not present a public policy question Myelage reimbursement rates or how you're going to have public safety. It's all money. That's money That's how much money is going to have to be paid to the teachers if you give more mileage expenses that cost more money and the amount of money That's going to be allocated to public education as opposed to Public housing welfare benefits. That's always a public policy issue Which is why I would say I would not try to draw the line by saying that some part of this speech is not a matter of public concern Or whatever term you want to use what I would say is that They when we're trying to run the public workplace we need to have some flexibility because for as employers We're trying to reach workable agreements to govern particular workplaces for particular periods of time And that involves compromise and it involves reaching some decisions on some of these issues and many of them are controversial But we need to have concrete decisions with one group of employees represented by one union to do that Where does the where does the state of California think the line should be drawn? Provision of California law this is Section 3546b of Of the California government code says that agency fees Maybe used for a quote the cost of lobbying activities designed to secure advantages and wages hours and other conditions and employment In addition to those secured through meeting and negotiating with the employer is that constitutional? I Don't know the answer to that question. I don't think it's the question presented here It's not what the unions here. It's not the position that they have taken in this litigation And if there is a need to adjust that line which there might be that would be a question about where to draw the fundamental line that a boo draws But the question here is whether that one of the questions is whether that whether a booge is workable So I do think it's relevant to know whether you think that is on one side of the line or the other I think there are arguments about why that kind of thing could be considered germane to bargaining But what is most important to the state here would not be preserving that line I don't want to concede it But that is not the fundamental point here. What is fundamental is that we need to be able to run our workplaces and that involves prescending somewhat from the From the broad debates about public policy which will continue to go on but getting particular contracts and the particular speech restrictions if I might just in Excuse me. I'm sorry. Is there any Is there any legal argument or factual basis on which the state of California disagrees with the position of the union? Sorry any many we have aspect of trying to sort out We have this you know three respondents here and I'm trying to sort out the different position. Is there anything In any way in which your presentation disagrees with the unions presentation in its in its brief I don't think there's necessarily any fundamental disagreement. I think we would Emphasize that our interests here are not our primarily interests of employers and coming to practical Um Accommodations here. There was a long history in California in the 50s and 1960s of labor unrest it led to a commission that that issued a report There was very comprehensive and addressed this issue among others this issue of agent Cp's was part of the debate that went into The legislative decision in the early 70s to adopt this This system and we think that was a legitimate legislative General human you are arguing that I sympathize with with the need of a state to have An efficient system for dealing with its employees and I Can agree that dealing with just one union makes everybody's life easier Why do you think that the union would not survive Without these these fees charged to nonmembers of the union federal employee unions do do not charge Uh Agency fees to nonmembers and they seem to survive indeed. They prosper What why why is California different? The federal situation is different. They have very different scope of bargaining I wouldn't say that it's been established that they Prosper they have about a 30% membership rate and I don't think that this is a no Ship rate in in in California teaches union How many are members of the union? actual membership. I'm afraid I don't know that mr. Frederick made Because then you pointed out the membership is no in the federal sector But there is no bargaining about pay right there's no bargaining about pay General there was no fact finding below on this assumption factual assumption Hopefully there are you no seconding at all no factual development. So There's a presumption in the question posed which is that it can survive But we don't know that factually We don't know that factually the state would prefer not to take that risk And I don't think the Constitution requires us. You're the one making me argument It isn't it isn't the job of the opponents to show that it you know that it Will survive you're the one that say we need to do this because otherwise it won't survive It seems to me the burden on is on you to suggest why that's so with you have your own The company on interest With respect your eye don't believe that what we need to show is that you know not survive without this from our point of view The question is are we using a technique that the private sector uses widely that is reasonable from the point of view Of the employer and the dozen and posing undue burden and let me just say for just a moment about the burden that's involved here Because I don't want to minimize it, but let's remember that there is no personal attribution of this speech here To any individual employee there is no restriction on any individual employees speech as a citizen either in the workplace or out of the workplace All of this speech is workplace related and if it's not then that's a matter of adjusting It's odd to say that if X is required to pay five hundred dollars for someone to espouse the belief that he doesn't Share that he is now free to go out and argue against it. That means he has to spend another five hundred dollars So that balances out makes no sense I would say here is to me you're out of this case is very much like southworth because what we have here is something where it is important to the state to have a system in which we are not the speaker Because that would defeat the purpose of this system the same way the point in southwish was to have students speak the whole idea of southwish was a public form Are you saying that the whole purpose of agency fees is to have an open public forum? No, I'm saying it's to have a bargaining forum, but that is legitimate when we have compelled to compel the Association to have that bargaining forum. It is also a commitment to have user fees that fund it Thank you general Mr. Frederick. Thank you mr. Chief Justice and may it please the court a boot correctly held that states may reasonably insist that Non-members pay their share of costs for the services provided by a union to the government and to all employees as their exclusive representative Overruling a boot now would substantially disrupt established first amendment doctrine and labor management systems in nearly half the country Let me talk about what a collective bargaining is and how the agreement is struck and how it evolves over time because it's not simply one contract Where there might be a severability provision, but it is really a system of agreements that are established over time and a body of relationships that build up And if you look at the joint appendix there are several examples of collective bargaining agreements there very long detailed Agreements that include a wide range of services that are negotiated between the union and the government and some of these are monetary Many of these are hot button issues to be sure justice Kennedy But many of them are also mundane issues about health and welfare benefits What times teachers need to show up how long their lunch break can be without having to perform a duty what the policies are for transferring teachers Between and among school districts and these are all basic services that require research legal representation Confirming and consulting communicating with members trying to ascertain What the positions of all members of the workforce are before the union presents a policy I suppose if that's so convincing the union can convince teachers to join the union Well, and in fact in California the overwhelming majority of the teachers are in the union And it's only a small percentage that have opted not to but I would go further Justice Kennedy and saying that what we are talking about here are a range of services that they're providing We're talking about a service fee for the state law that provides for the exclusive representative to be the Union when that is voted for a by a majority of the workers and here This court's cases have distinguished between Citizen speech where the very teacher who might disagree with the union's position is free to go and speak publicly about that position And employment speech where this court's cases have been extraordinarily deferential to the government and upholding restrictions on what speech employees may make But philosophically if you use Pickering in this case you're committing the error of composition you're Comparing a whole group of persons who have their views of Co-Airstrel compelled against one person that that Pickering is just in applicable on that on that ground Well, Justice Kennedy I think that it is fair to suppose that the government and deciding whether it's going to establish a relationship with its workers In order to get input is necessarily going to be dealt with a cacophony of use unless it comes up with a reasonable system of management To get those views collected and have them represented by an exclusive representative And that is the basic trade-off that a boot recognized and I would note that because different states have chosen Based on their history their culture their experiences with the labor management system in the private sector to come up with different results And here I would say that Wisconsin and Michigan which recently adopted alterations to their public management sector Established this point because on the one hand the legislature in Wisconsin decided we're going to do away with public sector agency fees for school teachers and for Government workers, but we're going to keep it for public safety officers Police officers fire fighters because we determine there's a legislative interest in having agency fees Why the firefighters brief in this case explains that many states don't have safety regulations for firefighters And so a lot of these regulations end up coming through the collective bargaining process Where firefighters work out negotiated rules to establish what is a safe way to fight a fire and all of that would still survive If the petitioner is prevail Unless your basic argument that if you do away with agency's agency fees the unions are going to collapse and not be in a position and negotiate those Safety requirements. Chief Justice the necessity Standard has never been the standard when the government is operating as an employer or proprietor It has always been a case that you judge the agency the government's decision on the basis of what is appropriate or reasonable And if you look at it from that standard what the firefighters are saying here is that it's actually essential to have Agency fees because they are using those fees to benefit all of the workers in the in the unit through getting additional equipment that the county may not be able to afford Additional training so that when they're called upon to fight a fire. I'm sorry. They're getting Additional equipment that the county may not be able to work that's right the union members and the non members of the union in the in the Unit are putting their money together through the agency fee process so that the union is supplying something other than that That it was the same as the Scalia's question which I raised an issue and we heard it before The last colleague mentioned this California needs this Rule that it has Because it wants on the other side of the bargaining table a coherent Group of people to negotiate For the workers on wages hours working conditions etc now the chief justice said I can understand that argument If the alternative is the union is destroyed because then there's nobody Now you say that that arguments good argument because they're going to buy fire trucks and some other things Is there anything else that backs up that argument sure it gets important and I'd like you to explain yeah The flip side is that the state briefs and the city briefs that have been submitted in this court Note what happened when the agency fee process didn't occur in New York City for example There were strikes that were occurring all of the time until an agency fee the system was put into place And that enabled the city to better deliver transit services school services and the like so you have both a positive story I don't understand that I just absolutely don't understand it Why would agency fees Enable the city to do things that it couldn't do before because it enables all of the workers to know they are making a shared sacrifice for the purpose of Working together to establish a coherent position with their employer That's say that but I doesn't mean anything to me. I understand you have a union bargaining and the city says no And you're saying that if there are enforced fees to the union The city will say yes. No, what I see no connection what effort well I mean what the city is willing to to to give and collective a bargaining and whether you have agency fees Justice Scalia all I can report on in the absence of a factual record because this was basically brought as a facial challenge Is what is in the unique is briefs and cities states school districts hospitals that are management side Have supported agency fees because they find it to be a more workable system Well, having employees buy into the policies that are being established through the collective bargaining process It sounds to be like your argument cuts exactly the opposite way The the problem that's before us is whether or not individuals can be compelled to support Political views that they disagree with and you're saying well the reason they should be able to because if they do Then those political views are going to prevail they are opposed to particular funding That's why they don't want to join the union That's why they don't want to join the union because the union is pushing that But you say you should force them because then the union will prevail contrary to the Objecting employees views know what I'm saying mr. Chief Justice that the states can make rational and reasonable judgments That for their workability of a system They can have an agency fee process a boot recognized the very federalism interests that are at stake here Where different states have different experiences and this is an opportunity for the states to draw upon those distinctive experiences And coming up with a system that's fair for everyone Mr You didn't ask for this judgment. It was thrust on you this judgment on the pleadings you did say you wanted to make a record um In the district court If you had had that opportunity to develop a record What would you have put in it? Well the first thing I would have put in it would have been a response to Justice Kennedy's question Which is that Miss Friedrichs has said publicly? She's happy with the positions the union is taking on pay It would be anomalous to suppose that we're going to decide a case of this kind of constitutional import with a lead plaintiff who has said publicly She agrees with the union's positions on can you can you think you can find one employee who doesn't no I think that that's the point mr. Don't think you can no I think that there are undoubtedly There are undoubtedly issues in a hundred-page collective bargaining agreement in which reasonable people can say we don't like where the bargain got struck but the point here is government Workability and assessing the reasonableness of the government you think you think you can I mean obviously One thing that's come up is I know that you're right on this the Taylor Law was a mess It was strike after strike But what you would like to show is that that approach compared to the assessment of wage hour and working condition related fees That the latter makes an improvement in the coherence of the union's position and therefore there will be fewer strikes That's something like that is what you're arguing and I would guess that people would have written articles about that now and and if that so Well, Justice Breyer, I guess the question is are you going to decide a case of this constitutional significance on the basis of a hypothesis Based on all right my clarity you was do you want to put in formation in the record on that point? I think that is a one of many points that a record would be helpful But let me just say that we're off red This is I suppose the Fredrick's we I suppose that your Fredrick's we could assume That a state is always benefited and is more efficient if it can suppress speech and Your decision in Garcetti justice Kennedy allowed for the suppression of the speech by the prosecutor who was in the workplace It didn't apply to Mary play it didn't apply to the protection of Underperforming teachers it didn't it didn't it didn't apply to classroom size It didn't apply to educational objectives. Those are all classic workplace situations We are talking about this The teacher Can we go back to this issue of burden? There are a lot of assumptions underlying Your adversaries position. Oh set of questions can the union survive Um hold on I have about ten of them um Is it necessary? Um and Your adversary says you or one of my colleagues has said you bear the burden But this is an overturning of a decision on starry decisis isn't it? That's correct and the point what burden do you have? Or is it your adversary who has to show no reliance interest That the foundation is wrong et cetera We submit the given the four-decade history they have the burden to demonstrate that the way the system has worked would be Unworkable if it were to be uh if it were to be sustained and and justice Kennedy back to your point I appreciate that a prosecutor's memo might be viewed in your eyes as workplace speech whereas the teachers position About what size the classroom might be may not seem the same way as workplace speech But from the government's perspective I think you have to assess that on the basis of their reasonableness Of the system that the government is talking about a whole class of persons whose speech has been Silenced not just one person Well big different their speech isn't silence they are paying a service fee so that an exclusive Representative can negotiate their health and wealth or benefits their mileage reimbursement a whole set of things voluntary teacher transfer policy the questions about when teachers have to show up how long their duty breaks duty free breaks are during the course of the day These are all relatively mundane points. I think you would agree with me And there's nothing in the agency fee process that suppresses the ability of teachers to speak out publicly And even within the process because the law itself allows for merit pay to be a subject of bargaining If a minority of the teachers can convince the majority that this is a position that the teachers also you're I think you at least agree We're dealing with some sensitive and important constitutional issues What is the the burden on the union that counter Ways against those of simply requiring opt-in as opposed to opt out at least then you You ensure that people are making a conscious decision about supporting the union Before they're compelled to do that on the second question presented We think that the decision ought to be affirmed because a boot correctly recognized that here where there was Basically no burden on the person who wanted to opt out that that was In itself and a core quote question. What you're saying. It's easy for the person that check a box saying I opt out It's also easy to check a box saying opt-in It's administratively actually in a system where the overwhelming majority we're talking about more than 90% of the people are paying the fees Even those that are non-chargeable fees under the Leonard line to support political activities It's administratively much easier to count a smaller number and the question is whether the suppression of their constitutional rights Is such is to rise to the level of compulsion here? We would submit to where there's a one page Check box they can send it in they are able and every petition on the other side has successfully opted out of paying those That the burden is on them to show that the government has made an unreasonable choice as to the kind of administrator scheme Well opt-in is opt-out is not always as easy as you wreck as you say and one of our prior cases I think that anybody who wanted to opt out had to send a certified letter within a certain period of time I'll suppose somebody says I don't want to pay this year. I don't want it I never want to pay what is the justification for saying that person has to opt out every single year? Well Let me just say that the perpetual opt-out is not an issue in this case And it had it been raised it very well might be an acceptable way to do to say I want to opt out until further notice That's not been presented or argued here if it were to be argued There are reasons why that might be appropriate But here having an annual Process follows this courts Hudson decision where the union is required on an annual basis to provide notice of the activities that are chargeable and non-chargeable So from the perspective of getting notice to the potential objecting member it allows more flexibility Thank you counsel You General really mr Chief justice and may please the court let me begin by summarizing the three fundamental reasons why a boot should be reaffirmed First in the four decades that a boot has been the law this courts jurisprudence in the area of of Employment relations first and immature as prudence in the area of employment relations has converged with a boot in a way that Fortifies its foundations and does not erode them because what those cases have recognized is when the government is acting as employer managing the workforce It should receive Reasonalness review in order to give it the latitude comparable to that of a private employer to manage its workforce and not exacting Scrutiny that applies when government is a sovereign regulated the citizens second in those four decades more than 20 states Have enacted an enforced laws that allow the public employers in those states to have the same latitude that Congress gave private employers to decide based on workplace needs and local conditions Whether agency fee requirements will help them achieve the purposes for which they For which they Adopt collective bargaining and the reliance goes far deeper than those 20 State laws and the thousands of contracts affecting millions of people that are based on those laws in those states The agency fee requirement has worked its way woven its way into the fabric of the relationship between workers and management in the public sphere In those states the unions have taken on such obligations as training and the like funded by agency fees that make the workplace more effective For Management as well as more effective for the employees and if you were to take those away You're going to disrupt those long-term relationships that have developed over time in the expectations that have developed over time And you're going to replace them with a different kind of a situation in which the union is going to have a different set of incentives trying to Trying to ensure that the maximum number of people are willing to pay union fees and the way that the unions are likely to try to do that is through Trying to convince employees that you that they need the union because Otherwise management is going to do them harm and I do think that that's a significant problem here for public employer perspective now In a time of budgetary constraints when difficult decisions have to be made and cuts have to be made Now is a great benefit to the employer to the government as employer to have the union participate in those judgments So that they are perceived as fair as the work by the workforce and so that the union then and affect vouchers for a management With the workforce and prevents disruption So I do think the reliance interests go very deep here and then the third point I would make is that we're talking about overruling a press in the 40 years standing There need to be needs to be a showing of changed circumstances. It seems to me now with respect to the question of The role that agency fee The role that agency fees play in the process I think it's quite important this goes to a point you raised justice Scalia a boot never said And no case since a boot has ever said That agency fees are necessary to union survival a boot couldn't have said that because when a boot rule as it did Caft Hartley had been on the books for decades and then so with respect to the private sector What Congress had said with respect to the private sector is that employers get to choose Employers get to decide whether The agency fee will help them achieve their workplace goals and what the court said in a boot was that public employers ought to have the same Kind of choice to respond to workplace needs and local conditions that prior The fact that a boot has been around for 40 years that does it affect your point at all that the main justification for a boot that's being advanced today is one that a boot did not adopt I just a pickering justification. That's what I hear Most prominently in the presentations and yet a boot did not even cite Pickering I I respectfully disagree with that as a technical matter I think a boot did cite Pickering and one looks at the briefs in a boot the parties on both sides were arguing Pickering But in terms of that but in terms of the substantive analysis think it was can't really seriously be called a pickering case No, but I think it shares Well, I when I said at the outset Mr. Chief Justice is I think the key point That this courts first amendment law in the public employment context has over time converged with a boot in that The cases generally have recognized that when government is acting as employer It has interest that if government were acting as sovereign regulating the citizenry wouldn't suffice to just a Condition to thinkering is the heart of your argument. So I do want to ask you a couple of questions about it Is it different from the situation here in several respects one was brought out pickering the pickering cases involve The termination or the discipline of a public employee after a single employee after the employee has made a statement That to which the employer objects this is a prospective Rule that applies to a huge category of employees the second is whether Restrictions on what employees can say are the same as Compelling an employee to make a statement or subsidizing a state. Let me take so as to the as to the latter Yeah, there are circumstances are they're not in which um the Department of Justice could Terminator take an adverse employment action against A DOJ employee for something that that employee says as a citizen on a question of public concern that could be done could it not? Are there any circumstances in which the Department of Justice could compel an employee to make a statement? I think of private citizens. I can't think of one But that goes right to the difference right to the difference between government acting as employer Managing the workplace and government acting as sovereign regulating the citizenry in the latter situation What this court's cases would say is that that is not government acting to manage the workplace that is government leveraging its its control over the employee acting as sovereign affecting that person as well as citizen and that would get exacting scrutiny and that so that I think that's the that's the key We're not arguing that a boot applies of its own terms. We're arguing that there's an insight that underlies a boot and underlies Garcetti and frankly underlies the political affiliation cases as well because if you look at those what those cases all say contrary to what my friends say is that When government can show the political affiliation is a reasonable requirement for the effective performance of the job and question That that affiliation requirement can be upheld that again is not exacting scrutiny of reasonableness every case lines off along that axis And so I and I think that's the key point about pickering And if I could I just want to address a couple of other points you know I When a when a union is bargaining about a matter of Of public concern you saying that's that is not the same as commenting on a matter of public concern No, what I'm saying is that it occurs in the context of the the collective bargaining relationship Which is a which is has to be subject to a different set of constitutional standards It has to be because think about it with respect to collective bargaining There's a specialized channel of communication that the government sets up the government controls who can speak When the discussion is going to occur and what topics can be discussed all of that is true nobody nobody denies that But the problem is that it is not the same as a private employer That what is bargain for is in all cases a matter of public interest And that changes the That changes the situation in a way that that may require a change of the rule It's one thing to provide it for private employers. It's another thing to provide it for the government Where every matter bargain for is a matter of public interest But I guess what I would say about that Justice Scalia is what I read this Court's cases Is saying in the employee speech context and the employee petitioning context and the political affiliation context is that you yes It's not wholly free of first amendment scrutiny But recognizing the government's interest as employer and prerogatives as employer you apply reasonable misreview and not the exacting scrutiny that applies when governments regulating as a sovereign Right, I guess that isn't it you may know The case in which any government as employer is most likely to want to control what the employee says and where he has the right to do that Is likely to be a case that involves the institution's job i.e. the public interest Yes, certainly certainly that's why that's why I think There was no doubt in Garcetti that the speech was on a matter of public concern I could have said the same thing in book your borough of durier and any number of these courts other cases That's not that that's not the distinction the court is drawn the distinction the court is drawn is between government acting as employer managing the workforce and government acting as sovereign regulating the citizenry And I respectfully submit that that that distinction applies with equal force here and especially given the story Decicist considerations that that ought to govern this court's decision in this context That is more than sufficient to uphold reaffirmable because as I said what this court's cases have recognized through all the public employer context is the same principle for which a booge stands General you seem and everybody seems to equate Government subsidy with government speech do you think our cases give government subsidy the same analysis as they give um Compiled speech or compelled silence my answer mr. Chief Justice What I would say about that just so to more is that in this context the subsidy goes to the process of Contract formation contract administration within that collective bargaining context that I described earlier that of necessity Different First Amendment standard has to apply to thank you general three minutes mr. Carman Thank you as to the absence of a factual record here It's important to point out that we gave them an amended answer where they can make any allegation they wanted and at page four of their so-called Opposition this set to quote the unions do not oppose the entry of a judgment on the pleading why is that because They certainly it's their burden to argue for example that agency fees will lead to the demise of the union But they didn't make any such allegation in their answer They didn't make any such allegation in response to Justice Ginsburg's question And they've got all the facts in terms of the unions fiscal well-being That's because they can't make such an allegation in the real world. How do we know that? 25 states prohibit agency fees not one union Read the amiki see if you can see one example of a union capitulating because of that the federal government doesn't allow agency fees And only a third of the members are union members and yet that agent that union survives Whereas here we have 90% union membership and mr. Frederick said 90% of the nonmembers Continued to contribute so the notion that anything could happen adversely here simply doesn't square with things The notion that a boot put forth that there's some federal policy in favor of agency fees is completely contrary to the fact 29 usc 6164b Allows excuse me prohibits agency fees if the state prohibits So it allows states to prohibit agency fees Conversely it preempts states that seek to require agency fees So the federal policy not only with respect to their own workforce But to this respect to the private workforce is contrary to agency fees In response to justice Kennedy's question. Yes There's a stark difference between single personnel decisions and group decisions NTEU which is a pickering case makes that quite clear even in the pickering context when there was a general rule With respect to outside honorarium the court made it clear that the burden of justification is much higher They haven't come close to this burden of justification because they can't possibly show That agency fees will lead to the end of the union and contrary to my brethren That's the only thing that matters we're talking about the government's interest as an employer All they care about according to a boot is having one union instead of two so they only have to speak to one person They don't care about how robust or effective this union is indeed if anything They don't want them to be effective because nobody wants a strong bargaining partner that's going to drive up public expenditures and and have a So what do you do with what do you do with the the law enforcement people who submitted their brief who said the unions actually do training They provide equipment the county can't afford with fees So there what the general has been saying is we have to leave it to each state to decide because with This kind of agency fee there are things that unions can do that we would choose not to do I am the unions in California do teacher training Yeah exactly and they do fire training They do safety training can you think of something that's more a matter of public concern? That's more of an ideological point that's more important and yet they dismiss these as somehow prosaic issues They're basic to our democracy and that's why we have an absolute right not to subsidize it No one's are at these things why if you're receiving the benefits of it Why it's your benefit you may disagree with that judgment right and you and you can speak about it Because why is it hurting your first amendment right if you can speak There's a great ongoing debate about teacher training class size in education reform today The unions have their right to take their side of that view what they don't have to do Is a right to demand that the other side subsidize their views on these essential questions of a basic public importance Thank you counsel the case is submitte