be overruled because it failed to apply heightened first member scrutiny to compulsory fee for speech to influence governmental policies of failure places that ought with harris with knox and a slew of other speech and association precedents now responded to attempt to justify brute results with rationales found nowhere in that decision which undercuts any starry decisis value in retaining a boob yeah and mr mann if you are right about state why a private yes wrong with respect to the first two instances the student association or student fees and the bar association fees those cases are distinguishable for reasons stated in harris they're justified by different interests the state bar associations are justified by the state's compelling government interest in regulating the practice of law before its courts the student association fees are justified but this is government's or what the university is compelling interest in setting up a viewpoint neutral forum  for speech and then with respect to the private sector cases they hinge on a question of state action so in this case only public sector union fees are being challenged in the private sector you'd have a question of whether state action applied in therefore  fire deprive them of all money not just a fair share but deprive them of plenty income if they speak outside of the government's approved policy messages or messages generally so if we can permit the government isn't ploy or to have a compelling interest to do something as dramatic as firing someone why can't that interest in having workplace peace workplace routine in which issues are decided in a collective way why isn't that a compelling interest comparable to the others well the government's interest in restricting speech don't apply to compelling support for speech in fact often times they cut the opposite way so the government's interest in restricting speech for example in the hatch act restricting political activities wasn't preventing the political ization of the work force and preventing government employees were being organized into a political machine of course the same interest don't justify forcing individuals to support the speech of an obvious but that's no different than forcing student student participation in fees to provide a public forum to have a bar association regulated these are all forcing the subsidisation of private interest for a government purpose and the government purpose here is labor relations and labor peace why isn't it you still haven't told me why that's not a compelling state interest well irrespective of whether or i'm shouldn't say state a compelling federal government insures yes sure the court doesn't need to reach whether or not labor peace into that such interests are compelling because agency fees are not at least restrictive means to satisfy any labor peace interest the government may have been listening to one union so the labor peace intercessors course explained in a boo is the government's interest in listening only to one union so doesn't have to listen to multiple known peers another way of doing student  but the question is is the alternative that the state has chosen one that is well fitted to the to its need as well tailored now really tailored i don't see how you can do that given the interest of the government in ensuring that unions represent everybody well an agency fee isn't necessary for exclusive reply not you have free writing well the reason are ours exclusive representation in  itself is a valuable benefit for a union it provides unions with extraordinary powers to compel the government to listen to it at the bargaining table to not listen to other obviously groups many dranes make it an equal partner demand in the bargaining table not equal employer faces well i think there's two things in that question your honor the first question is does the duty to represent nonmembers raise union ghar bargaining costs and i submit that does  not the unions there's no reason why of negotiating a contract for all employees in a unit would be more expensive the negotiate a contract just for the union members because the unions discretion in bargaining is incredibly wide and so the duty that the union has to the non immaterial why an individual does not wish to support union advocacy of the first amendment prohibits the government from probing into individual subject i mean saying that you give a damn and the end of the will be and well to the degree to which the union resources are diminished by individuals exercising their first moment right not to subsidize that union i submit that's a perfectly acceptable result of the that's the as the constitution requires states to demand that unions provide services for nonmembers for example is there a constitutional requirement for a union to handle the grievances of nonmembers or is that something that's imposed by state law it varies or order in the federal law this court implied that what we're talking about state law yes in state law for example in illinois state law there is a provision illinois labor relations act that expressly provide understand that are they is that constitutionally required no your honor earth reference to some of the other cases of this cause has have the unions at any point in this litigation or any point in their history ever said that they are committed to the  to apply a more modern framework to some older cases this is been the law for fifty years just about ok homes and brand does didn't know about these modern framework how many cases should we go back you think we should apply modern frameworks to all old cases begin with marbury vs madison there are lots of very good lawyers in this room they will think of all kinds of older cases where we haven't applied modern frame one what's your limiting principle there too what is your limiting principle on the matter that we're talking about i mean stuart justice stewart who wrote a booed in the seventy's thought the case identical or near identical to the railway labor act cases real way labor act that the railroad there regulated governments involved just as your clients are involved you know just as the unions here what's the distinction if you're going to try to make one  and really three and this is for all of you all the lawyers here what do you think of the what i think of as a compromise put forth by justices kennedy scalia souter and o'connor in learn are called to our attention specifically by the brief of professor fried and professor post does that solve most of your problem for any side those of the three decisis even if it weren't there how do you distinguish all the other unions particularly those in regulated industries and three what about the compromise yes so true address your questions in order as prior on the first point abood is not only inconsistent with cases that came after it it was inconsistent with cases that came before it such as l rod even the dissent to no rod justice paul would have applied exactly first moment scrutiny to patronage it wasn't just a departure for ours and just inconsistent with prior precedent or sorry subsequent precedent with the precedents that came before so this would not necessarily be solely applying a new doctrine to abuse but applying what the law was even prior to the railway labor act as this court explained in harris there you have the private sector you don't have the union dealing with government which of course is political advocacy and that political ads is subject to heightened first amendment protection which you don't necessarily have in the private sector and then with respect to the third point the test suggested in the dissent to leonard the problem with that is that allow for charging of collective bargaining and anything else  government decided that the union had a duty to bargain over so in other words that test the statutory duties test allows the government to decide what is constitutional we chargeable under the first amendment so that test would of course among other things allow for charging of collective bargaining but here collective bargaining is the core political activity which we submit individuals cannot be compelled is it or says the collective nature of the union you're not suggesting that if an employee goes to the state and  so if and only is disciplined by the state or some now thesis that's an employment related issue not entitled to first amendment protection oftentimes oftentimes if employees come to the you come to the state and want greater training employment titian correct general yes so why does it transform into some entitle me into first amendment protection merely because a collective body of employees are coming to the table at once what's the transform nature now of making these substantive questions matters of public policy as this court recognized in harris it's the scale so here you have asked me bargaining over issues that affect hundreds of millions of dollars affect thousands of employees across the board the scale of that is what makes it a political not going to change whether the union asked for it or the employees come what you're now saying is if the employees came into an order twenty or at a business site of the state and everyone of them got up and said i want higher wages the scale put in facts they have permission to be in the auditorium they walk in as a group every one of them gets up and says i want higher wages is that an employment issue orders that now become public policy because something that every employee once they've now articulated i would submit that it starts to move towards a matter of public policy if it isn't so it's not a scale not subject well it's both scale and subject i mean here the subject are wages health insurance in many ways in which the government operates which are very important both to the public fisc and to the operation delivery service commission messenger may i ask you about reliance interests here i don't think that we have ever overruled a case where reliance interests are remotely as strong as they are here so just a few things to put on the table twenty three states the district of columbia puerto rico or what have their statutes declared unconstitutional at once thousands of municipalities would have contracts invalidated those contracts probably cover millions maybe up to over ten million workers so property and contract rights the statutes of many states  and the livelihoods of millions of individuals affected all at once when have we ever done something like that what would be the justification for doing something like that well i'd say two things justice kagan the first is that the makes it quite clear that reliance is an important consideration on the scales reliance on something that's constitutional reliance on illegal practice no for example in arizona began which involved searches of cars and the fourth amendment the court said the this is occurring in many places across the board is a reason for i think in many individuals fourth amendment rights are being violated and so in that instance the prevalence of compulsory unionism in the states is a reason for a verse in it and then in terms of contracts in general i s the contracts will survive except for the excision of the compulsory as in provisions to the severability well why is that how many of these contracts have severability clause says i couldn't find a number for the public sector your honor but the general most contracts  several in california because they're not in the central provision of the contract that were required the excision of anything more than of course even if that's true presumably there bargained for provisions the contract would have been different if the  the employers had known that this was going to be declared unconstitutional so to leave the contract as is except for one particular bargain for provision is to do something that's in equitable for the union i don't think it's necessarily always true as a legal matter and foremost in some states compulsory unionism is mandated by the statute for example in california and other states once the provision is there it stays there so it's not even a subject of bargaining usually it's something that was always there from the prior contract it's taking as an assumption and even to the extent it was a bargain for issue in a recent contract these contracts will expire the next one to three years and need to be renegotiated anyways so i don't think that really changed the reliance interests general francisco mr chief justice and may it please the court i'd like to focus on three basic issues the first is the government's interest in having in the necessity of agency fees the second is the starry decisis question that we've been talking about in the th lender issue in terms of whether agency fees are necessary to further the compelling interest in having an exclusive bargaining representative on the other side of the table i don't think there's really any basis for concluding that for example in the federal government we don't have postal service does have the full range of negotiation and in the rest of the federal government i would submit that the more limited bargain and grain should make it harder for them to recruit members into the union and in fact in the postal service according to bureau of labor statistics data we find that about ninety four percent of employees who are subject to collective bargaining agreements are members of the union even though you don't have agency fees in the federal government generally including the postal service that number's about eighty percent and if you just take federal the postal service out and look at the federal government still north of eighty percent that's according to the mother of labor statistics cletus how much of the work place is unionized the federal i believe that in the federal government generally about a quarter of the workplace a quarter to a third of the workplace is you not you know how much is there he is ation in the general corporate sector and private sector my i don't know for sure i think it's on negative sells meaning that almost all work and i don't have that number at the time you were trying to get to two other points yes so my other point was on the motion to dismiss issue the need for record this case came up on a motion to dismiss so i think the appropriate course is in harris you reverse the motion to dismiss and you send it back turning to the story decisis point and particularly of the reliance interests collective bargaining agreements are generally two to four year contracts so that means that almost all of them were negotiated under the shadow of harris and knox so i don't think that there was an enormous amount of reliance on the continued vitality of abood but even if there were some reliance i think it would be very short lived until the next negotiating session where any new decisions from this court would be factored in and i do agree that there also probably wouldn't be much disruption at all since you would simply invalidate individual agency the provisions  it respectfully our i don't think anything would happen in the private sector for largely the reasons that justice alito identified in his third circuit opinion on the issue and the d c circuit identified in the opinion that i believe you were part of which held that in the private sector  simply is no state action when it comes to collective bargaining agreements that's also what the united states argued in its back and the kids brief your few a few years ago labor peace i once heard archie cogs from maybe it was in your position right here say the greatest instrument for labor peace and prosperity from the years nine hundred forty five to nine hundred seventy was grievance arbitration in the unions so suddenly we're changing the method of financing that you say well it's just public unions but if i were in  regulated industry and i read the court's opinion siding with you i would wonder if it didn't apply to me and not all workers are lawyers and all they've seen is that this court has suddenly cut legs at least one out of the financing of a system that it least in some aspects though it's debatable some people think a broad labor peace right now  you are the government the united states what do you think about that well your honor i think that the core of this issue goes to and i'm reading from the agency prefer the agency fee provision itself the cost of the collective bargaining process and that's separate from the grievance process i actually think the grievance process raises serious first amendment concerns as well but for purposes of this case the focus is on the cost of collective bargaining and i don't think you necessarily have to go any further than that to resolve this case since the whole i since the whole idea of agency fees their justification and their purpose has been predicated on the need to compel support for the collective bargaining process in general an important part of mr messenger's argument is the idea that all speech about employment conditions about pay about vacation you know about all of the various employee benefits that there are subjects of collective bargaining that are really the heart of collective bargaining that all speech about that is met there are matters of public concern when it happens in the public workplace because they all cost money and as taxpayers we would be interested in things that cost money is that the government's position as well that all of that speech is a matter of public concern yes your honor i think in the public bargaining context all of it goes to the size structure cost of government and the delivery of public services although i would agree that there are some things that more vividly implicate public policy can i ask i mean it's strikes me as a very unusual position for the government to be taken looking after the long term interests of the united states government because essentially what that means is that you will have to litigate all employee employer disputes under the second step of pickering rather than under the first which is quite a striking thing for the government  be saying that with well i very much disagree with that your honor i think the pickering framework is an established framework that works very well and the nature of individual wage disputes the reason it rises to the level of public interest when it comes to collective bargaining agreements is because it really does all go to the overall size structure and the cost of the government picking is very different so you're saying that when a union collectively bargains it's a matter of public concern but th workplace to under twenty of them gets together without the formal collective bargaining that a union does that that's not a matter of public concern very much so your honor because one individual employee is negotiating with his employer over his particular wage that's a negotiation that's taking place between the employee and the employer in the public sector collective bargaining context it's taking place between a private third party organization union and the government in order to set the overall size scope and structure that i learned as a representative of the employee is and has been chosen to represent the employees so that the employees can better wield their power right over terms and conditions of employment so why should matter i mean that's i'm trying to understand this because it struck me as a quite amazing thing for the government to be saying that these were matters of public concern why should it matter if fifty employees get together and say we want higher wages and then on the other hand if employees get together and say you know what we think it's right to elect the unions that the union can say that it's the exact same subjects and the exact same speech that's going to be involved and i think it matters for two reasons one is the scope of the issue but two and more importantly it's the nature of pickering even in pickering the government is allowed to prohibit core political speech when it interferes with the employee's ability to do their job i'm so that's they're going to get into the scope  then the glory who contrary to the chain of command tell us about rampant corruption in a government agency then we're not going to permit as we already have that employee to be fired because the scope of that affects the public fisk in a huge way and i very much disagree with i don't i don't understand what you're arguing this is such a radical new position on your part i don't i don't think mr general by the way how many times this term already have you flipped positions from prior administration your honor i bliss may be more than your honor i think that we have revised that position in  so far three cases that's fair regardless what is what is the answer to the just ask kagan's going to answer the question goes to the what each year of the pickering inquiry itself pickering reflects the government's interest in controlling the words and actions of its employees in order to make sure they're doing their jobs and pickering reflects the teaching that heightened scrutiny is fundamentally incompatible with that interest since if you apply heightened scrutiny to it you basically prohibit employee employers from controlling their words and actions but there is no corresponding interest when it comes to compelling employees to subsidize third party advocacy thank you general mr franklin thank you mr chief justice may please the court this court's cases uniformly recognize that the state has a much for your hand when it manages its personnel as an employer than when it regulates its citizens as a sovereign and it has come up already today that freer hand includes broad authority to put conditions on employee speech that my friends on the other side this morning argue that that deference to the employers prerogatives somehow depends on the scale of the scope of the speech in question that has never been the law the government is still acting as an employer when it treats with his employees as a group or as a whole that's why this court has repeatedly used the pickering framework and other deferential public employee tests to uphold generally applicable workplace policies you see that in the letter carriers case upholding the hatch act you see that in san diego versus roe the ruling guard said he applies precious political views constantly i'm happy to speak to that justice kennedy you're right the guards said he cases in official duties case and we're not arguing this case as an official duties case however agency fees are he condition of public employment because they pay for the workplace services not just collective bargaining but is just as prior pointed out referencing general cox dated a workplace grievance resolution under an employment contract all of those activities involve speech by an employee representative to an employer so he knows they want to suppose that eighty percent of the fees of the union dues went to matters that were highly political in nature in twenty percent to wage in greed wage or wage negotiations and grievances would that change your view i don't know that it would your honor the abboud case the have seemed to me your argument doesn't have much weight well first of all we don't know what percentage of the union's activities are wrapped up with grievances if you know that we don't have a record here we're on a motion to dismiss but if you look at publicly available hudson notices that do break out categories of chargeable expenses in this way which ours in the record doesn't happen to do you'll find that in many cases especially in the out years when the c b is not being renegotiated charges for field representatives those are the people in day in and day out who are doing workplace grievance work advising employees etc can be three times six times seven times as much on the chargeable expenses line the line for collective bargaining so does to decide this case in an evidentiary vacuum on the basis of assumptions about how that speech breaks down or how those expenses break down would in our view be irresponsible frankly because there are garner and numerous differences between pickering and the situation here but let me just ask you about one do you think there are aren't any limitations on the authority of the state of illinois to compel its employees to say what the state wants them to say and if there are limitations what are they if this fifth what the state wants them to say is a function of their official duties in the workplace now if it's not a reflection of their official duties i understand you could not you probably agree with the position you're arguing but if you didn't come in here representing the state of illinois you couldn't just argue with you like you know my boss is right behind me that's right i'm acting pursuant to official duties and i know i understand and exploits or leverage that leverage is that relationship in such a way as to have an effect on the broader market place of citizen speech so that the employer interest is really pretextual then we're we've got a different story pickering writing that suggested that there was a lack of confidence in the supervisors in the office ok it was a limitation on what she could say do you think the case would have been the same if the district attorney required the assistant district attorney to appear before a meeting of everybody in the office and say i love you my supervisors they are the best supervisors anybody could possibly want it would state i'll answer your question that the preface to my answer has to be well it's possible that if you've got an orwellian scenario where the employee is being required in the workplace to speak about matters of public concern we write it to step into why wouldn't get done with strict scrutiny the wants to vault over all of the breakpoints in this court's first amendment law with respect to public employees and go straight to strict scrutiny and the fact is this court has never applied strict scrutiny to a condition of public employment that was backed by a bona fide interest in the state has as an employer never not once and i'm happy to talk about the political affiliation cases because i don't think they are to the contrary so you know implicit i think in your question justice alito was the distinction that my friend tried to draw between compulsion and restriction but this court has said again and again in willy in riley and elsewhere that compulsion and restriction of speech are two sides of the why won't you answer my question about what this is the district attorney could be required to do throughout history many people have drawn a line between a restriction on their speech and compelled speech  give me an example that's only if that's quite different given the nature of the of the subject from what's involved here if you remember the the movie in the play a man for all seasons so thomas that it was wrong when you compel somebody to speak don't you infringe that person's dignity and conscience in a way that you do not when you restrict what the person says you do your honor in some circumstances but what we're talking about here a compelled payment of a fee so it's one step removed from compelled speech and i don't want to disparage the first amendment interests that are at issue here abood recognized them we take them seriously but it's important to recognize that agency fees are not a man for all seasons scenario by any stretch no they're not it's not a man for all seasons scenario but i'm just asking you about the point when the you think that compelling somebody to speak is exactly the same thing as saying you may not speak no it's not exactly the same around or the pickering balance could come out differently in certain instances i would grant you that i do think not to use guard said he again but if mr supply us had been required to write a disposition memo and it said i or stops from speaking when you disagree we said that's a compelled subsidy and our members can come out any day they want and say they don't take the same position on a policy question as the bar association any union member is free to get up publicly in any setting he or she wants to say they don't agree with a position the union has taken correct correct in all of those cases keller southworth glickman we're outside of the workplace context where the state has always been recognized to have paramount interests in ensuring that its managerial prerogatives can be carried out you know the state's interest here if i can spend just a few moments talking about that is first we have an interest in dealing with a single spokesman for the for the employees second we have an interest in imposing on that spokesman a legal duty to represent everyone but as as regards agency fees they are complimentary to those first two interests they serve our managerial interests in two ways first they allow us to avoid a situation where some employees bear the of representing others who contribute nothing that kind of two tiered work place would be corrosive to our ability to cultivate collaboration cohesion good working relationships among our personnel second independent of that we have an interest at the end of the day in being able to work with a stable responsible independent counter party that's well resourced enough that it can be a partner with us in the process of not only contract partner with you in advocating for greater size work force against privatization against marriage promotion against for teacher tenure for higher wages for massive government and for increasing bonded indebtedness for increasing taxes that's that's the interest the state has no the state has no interest or no  just link reality to deny that that is what's happening here we with all due respect justice kennedy we've never denied that many of the topics that come up at the bargaining table with public employee unions have serious fiscal and public policy implications we've never denied that i said what about compromise the line that justice scalia drew in his lane or separate opinion was in our view superior to the one that was drawn by the plurality we've offered a test for where to draw the line between chargeable and non chargeable expenses that in practice would overlap with would coincide with justice sc 's line in most cases but the reason that we think that it's superior to the pluralities line is that the germane this test does have a vagueness problem and it in some instances it allows what it francisco that if we overruled abood things would in a few years get back to normal the state would pass and new statute and these simple contracts would all be renegotiated and it wouldn't be any real issue so could what do you think about that what would the difficulties be if any if the state if the court were to overrule abood i'm happy to speak to that justice kagan here's what we know and obviously we're on a motion to dismiss but more broadly what we know is that tangibly when these kinds of obligations of financial support become voluntary union membership goes down union density rates go down union resources go down we've seen it again and again mansour also spoke about it in the foundational text of behavioral economics we also know that intangibly there are plenty of studies that show that when unions are deprived of agency fees they tend to become more militant more confrontational they go out in search of short term gains that they can bring back to their members and say stick with us the argument on the other side of course is that the need to attract voluntary payments will make the unions more efficient more effective more attractive to a broader group of their employees as well with that well the two things that that i would say about that first the studies that i've read indicate that yes there can be an initial first flush of mobilization organizing when something like this gets taken away but that over the long term human nature and basic economic economics dictate that the free rider problem will become endemic and not only that the contagious because if i'm an employee and i stick with the union and others over time decide not to my fees and my dues are going to go up and up and up in the pressure on me to make the same choice will increase as well but the other point i'd make would be a legal point you know this court has said for example in the comic case that there ought to be judicial deference to the predictive judgments about workplace harm and that in particular this is a quote from connick we do not see the necessity for an employer to allow events to unfold to the extent that the destruction of working relationships has to be manifest before the state can take prophylactic action to stop it this is an area in your honor where  not only has this court course away or this court has addressed this topic three times in the past what four years but also the people around the country are addressing this issue in a very visible and sustained way mr franklin i mean you just address what  consider to be the harmful effects of a different rule but i was trying to get at a slightly different question i was asking you even beyond that what are the effects on it given that this rule has been in place for bargain that kicks in under state law we would have to renegotiate not only this provision but surrounding provisions that's a serious reliance interest in our view thank you thank you counsel was frederick thank you mr chief justice may it please the court i would note at the beginning that all of these arguments were before the court forty years ago and abood and when the court unanimously upheld the idea of agency fees it considered whether or not these issues would constrain the constitutional prerogatives of government to act under democratic impulses to come up with a system that would fit the local culture history private sector background of what state governments were having to do to recruit and attract the most willing and able people to discharge the public services the public employees are required to perform so when this court addressed in a letter the question of how do you draw the line between those fees that are deemed to be illogical and those that are deemed to be part of a statutorily mandated process the court cleaved and the question of whether or not the statute me and hated as it does here exclusive representation and the union is required to represent the minority members what justice scalia said was it is fair to assign a fee for the services that the union by statute is required to provide and what if the statute one of the state statute says that lobbying a man is a mandatory subject of bargaining well i think that the question i guess what do you mean by lobbying justice alito i'm not sure exactly when there's nobody is there any limit on what states can make a mandatory subject of collective bargaining so if the test is whether it's whether the it's mandated by this by the state the state can make anything it wants of a mandatory subject to bargain justice alito i would say that that hypothetical this so far outside of what this case is really all about that if you think that there is a problem that if any state ever in the union would come up with some requirement like that as part of collective bargaining you have the opportunity to review it at this time but what we're talking about here is a system that is well settled within the states to allow for this kind of dynamic interchange for the benefit of well do you think that this case affects the political influence of the unions could try to find a union newsletter which was don't worry about the supreme court our political influence will be exactly the same as it was before if this case comes out against that's not a expense justice kennedy we're talking about i'm targeting i'm asking you whether or not in your view if you do not prevail in this case the unions will have less political influence yes or no yes they will have hand at the end of this case it is not the end of the case your honor because that is not the question the question is do states as part of our sovereign system have the authority in the p to set up a collective bargaining system in which they mandate that the union is going to represent minority interests on pain of being subject with to and in with a man days people that object to certain union policies to pay for the implementation of those policies against their first amendment interest justice kennedy i would ask you to reach estus harlan's opinion and lay through where he addressed every single one of those considerations i read it i think  last night between seven and eight thirty it's a wonderful it's a wonderful opinion because what he says is that the of what he says is that the subsidisation goes to the purpose of the organization here that is state mandated collective bargaining and in which the person who doesn't agree with the positions basically gets to cracks one is to try to persuade the group that he's right and if that doesn't fail he still has his conscience and his speech to speak outside as a citizen to explain why that position is what is the process by when i when i read your brief i saw something i thought i would never see in a brief filed by a public employee union and that is the argument that the original meaning of the constitution is that public employees have no free speech rights where do you  want to go with that should we adopt a rule what i would say is that what this court justice white's opinion conic explains that if you look at this from a question of what are the three choices before you at the origins there were no rights what they are asking for is basically unfettered first amendment for public servants and what justice white explained was that as the first amendment evolved there were limitations on what the government could do with respect to certain expression but the core principle from the founding to today is that government has a free reign in regulating expressive rights in its workplace that principle from the founding to today he is at stake here because what they are saying is that every career events every employment issue becomes a constitutional issue and justice white's opinion  course you can't run government if that becomes the prince and do you think that's a fair characterization of their argument i do think that it is a fair characterization in so far as what they say is the collective bargaining issues that are in the contract  all raising matters of public concern you could look at them they are talking about who gets assignments on holidays what are leave policies all about things that do not affect the public fisc at all the go to who can manage the workplace in an appropriate way where there is buy in by the employer in your diet and you're limited to wages hours working conditions where mandated as subjects of compulsory bargaining by the state those three terms have one hundred years of history written around them shouldn't be hard to administer and should keep the things like lobbying and so forth out of it that's correct and even in this stance that correct is that was sued labor's good and can we get that from  managerial policy cannot be bargained for the state's budget that can't be bargained for so what we're talking about is is how you manage the workplace how do you negotiate over wages not affect the state budget legislature decides to ratify it or not so do public unions do not engage in advocacy with respect to the state budget to the extent that impacts the available wages i think i wouldn't put it quite that way what i would say is that of course most public servants are underpaid and i will stipulate to that before this body and the question is the question is how do you come to the appropriate compromises in order to achieve a system that attracts th don't know what i'm saying you're arguing that what you just said what i said is that in different states the system works differently sometimes the budget is set first and then the bargaining happens and sometimes the bargaining happens and if the and employment conditions and so forth are matters of public concern when they are addressed in a collective bargaining framework but are not matters of public concern when they are addressed outside of a collective bargain in framework by individual employees cotton tell me about that what do you think of that i don't know any case of this court that hinges the first amendment progressives of the government on the scope or manner of the speech with respect to that and in fact as my colleague said when this court upheld the hatch act that applied to all workers and the court applied pickering balancing to say that the government interest was sufficient to outweigh the restrictions on the employee speech and the court also did the same thing it applied the same pickering balance when it decided that it was constitutional to have exclusive representation that quelled the speech of the minority to the exclusion of majority so these are all broad suite broad scope principles where this court is applied pickering if one employee says i deserve a five percent raise is that a matter of public concern or private concern well it depends on whether it affects the morale of the workplace as justice white's opinion in comics said there may be a circumstance you look at the balancing and you look at the content and the context in which that speech arises so that for instance in connick what the course said the only thing that was a matter of public concern there was whether affected the morale of the workplace in the court said on the basis of that he could be a matter of public concern but in individual workers agitation ordinarily for it represents can that be a matter of public concern i don't think so because no no because what the cut what is happening in a new negotiation of course this is a closed universe your hypothetical posits the opening bid by the union and in it's important to keep in mind the content and context of that speech all negotiations between workers and management do not take place in a public forum so what if the effect of the five percent wage increase across the board would push any city to the brink and perhaps over the brink into bankruptcy when it then become a matter of public concern well i think that you would look at that interim so the context of the particular scenario i would say and there are briefs on our side that make very clear that that particular hypothetical in fact is an unfair smearing of the of the collective bargaining process but what i would also point out is that if management says we cannot pay for this and therefore there is no agreement there are state mandated procedures to determine whether one side is bargaining in good faith or not and if the union is taking a position that is not a good faith position it can be subject to a so so i don't see how you can that one person asked for more money that affects the budget if one person in the railroad ask for more money that affects the rights that a public body the interstate commerce commission used to have to set if one person in a public utility an electricity company asked for money that affects the electricity rate so the line can't be i would think whether or not you're asking for higher wages whether collectively or individually because they all affect the budget so then what is the line i had thought the line was wages hours working conditions is ok and if it's not ok then that goes way beyond just public employees doesn't it yes and i would note that justice powell even had no problem in abood with the wages hours formulation and he was the one who disagreed with the basic formulation i would have had of course are asked to address a principle that can then be expanded if one employee doesn't affect wages percent of the workforce affect wages i mean negotiator demands with respect ages affect the public policy concerns that go into how much of a budget as to which there are many competing demands is allocated to employees owner he did question he also concede you that there are certain matters in collective bargaining they might raise matters of public concern but what the court's cases say is that even if there is a matter of public concern the government has the adequate power to restrict that speech if it can show there's just vacation and justice scalia's opinion in a letter provides the compelling interest by saying that the state is mandated that the union be the exclusive represent representative and must conduct itself through a duty of fair representation and that's where you get the compelling interest in agency manus rule came out of a boot itself and it was flushed out in line or so do you are you asking you suggesting we should overrule abood in part no what i'm suggesting is that if you were to go to this line you should consider revisiting leonard that's not a question of food basic simply said was it is constitutional for this to happen i'd like to turn to the reliance interest because if the other side succeeds in persuading the majority of you to overrule it will affect thousands of contracts and more importantly it is going to affect the work of state legislatures city councils school districts who are going to have to go back to the drawing board in deciding what are the rules for negotiating and how that works and what that means is that the key thing that has been bargained for in this contract for agency fees is a because of elimination on striking and that is true in many collective bargaining agreements the fees are the trade off union security is the trade off for new strikes and so if you were to overrule the you can raise an untold specter of labor unrest throughout the country thank you thank you council two minutes remaining mr messenger chief justice just to pick up on the last point made the proposition that agency fees or the cost employees have to pay to prevent unions from striking i submit is not only extremely attenuated but also making agency fees effectively a form of protection money the idea that the government needs to force its employees to subsidize unions or otherwise the unions will disrupt the government and i submit that's not an interest that this court can accept as compelling one for infringing on individuals first on the rights and also to make a brief point about grievance process and we've talked a lot about collective bargaining today but grievance processing is equally an expressive activity and in the aggregate can have an effect upon the public fisc now in terms of expressive activity a grievance is by definition the union is trying to influence what the government is wants to do and if it's a grievance or something the government is resistant to actually doing and advocacy to enforce a policy is tied into advocacy you know when i say that we arguing do away with unions because you're really taking it has since saying every single employee decision is really a public policy decision i have an individual person i want to fire or discipline you just said it's a public policy question i know where i was going that grievances as a whole is a pub matter of public concern even says don't deal with one issue every grievance has a different issue some people are disciplined for being are hard for contract administration as a whole their charge for an entire year's worth of asking is grievance processing some of which are very significant like a grievance after a recently filed to compel the state to expend seventy five million dollars to pay for a two percent wage increase that went to the illinois supreme court maybe some other grievances are more minor matters as you mentioned but as a whole in the aggregate they affect matters of public concern and that is what i or said every single decision affects the public's so the case is submitted