Brief of Professors Cynthia L. Estlund, Samuel Estreicher, Julius G. Getman, William B. Gould IV, Michael C. Harper, and Theodore J. St. Antoine, as Amici Curiae in Support of Respondent in Janus V. American Fed. Of State, County, and Muni. Employees, No. 16-1466

Abstract

Our brief makes a functional argument for public sector collective bargaining. Employees expect, and the government employer generally favors, horizontal uniformity – similar terms and conditions for similarly- situated employees. Any terms negotiated with one employee would, as a practical matter, have to be extended to all other similarly-situated employees. The employer thus must maintain uniform working conditions and criteria for making pay, promotion, and other personnel decisions for similarly-situated workers. The choice for the employer is whether to impose terms unilaterally, perhaps with the assistance of HR and outside consultants, or bargain collectively with employees. In choosing between these two options, the challenge for the public employer is how to obtain the most dedicated, effective performance from its staff consistent with budgetary and other constraints. What states that authorize collective bargaining, including Illinois, have realized, the brief contends is that meeting employees’ expectations for influence and reception to grievances may not be possible without an independent organization to express employee concerns and preferences and provide integrity for inside grievance adjustment systems. Realizing these shortcomings of unilateral management, the brief argues, some states, including Illinois, at first set up “meet and confer” systems involving groups of employees without exclusive representation authority and with voluntary memberships. These states soon discovered that employees remained dissatisfied and management soon became worried that inter-group divisions could produce fractured bargaining agreements for single units of employees. As a result, states like Illinois abandoned meet and confer for collective bargaining with an exclusive representative because that system has a distinct advantage: Providing an independent employee voice likely to reveal employee preferences and concerns that management might not be able to elicit on its own and to ensure that those preferences and concerns are effectively heard during bargaining and in the grievance procedure. To achieve this, the brief argues, the exclusive representative must be employee funded. If the representative were to be funded by the [employer], it would in short order be reasonably viewed by the employees as an organ of management. Finally, the brief argues that a collective bargaining system like this does not pose First Amendment problems but rather furthers First Amendment values. For one, exclusive representation funded by employees – coupled with the safeguards of Abood and the union’s statutory duty of representation -- supports a meaningful employee voice in the workplace, a goal consistent with free speech values. And agency fees, the brief argues, should be viewed like a tax, as an assessment for a program that provides collective benefits for affected employees. Assessments like those to pay for lawful collective programs do not violate the First Amendment under existing case law, the brief argues, even where the assessments are levied on objectors.