Reisman v. Assoc'd Faculties of the Univ. ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-2201
JONATHAN REISMAN,
Plaintiff, Appellant,
v.
ASSOCIATED FACULTIES OF THE UNIVERSITY OF MAINE; UNIVERSITY OF
MAINE AT MACHIAS; BOARD OF TRUSTEES OF THE UNIVERSITY OF MAINE;
and THE STATE OF MAINE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Andrew M. Grossman, with whom Richard B. Raile, Renee M.
Knudsen, BakerHostetler LLP, Robert Alt, Daniel Dew, and The
Buckeye Institute were on brief, for appellant.
Jacob Karabell, with whom John M. West, Bredhoff & Kaiser,
P.L.L.C., Jason Walta, and National Education Association were on
brief, for appellee Associated Faculties of the University of
Maine.
Linda D. McGill, with whom Tara A. Walker and Bernstein, Shur,
Sawyer & Nelson, P.A. were on brief, for appellees University of
Maine at Machias and Board of Trustees of the University of Maine.
Susan P. Herman, Deputy Attorney General, with whom Aaron M.
Frey, Attorney General, and Christopher C. Taub, Assistant
Attorney General, were on brief, for appellee State of Maine.
October 4, 2019
BARRON, Circuit Judge. Jonathan Reisman, an economics
professor at the University of Maine at Machias, seeks to
invalidate a Maine statute that governs collective bargaining
between the state's university system and its faculty on the ground
that the statute violates the First Amendment of the United States
Constitution. The District Court granted the defendants' motion
to dismiss. We affirm.
I.
The Maine statute that Reisman challenges is the
University of Maine System Labor Relations Act, Me. Stat. tit. 26,
§§ 1021-1037. Enacted in 1975, the statute is modeled on the
National Labor Relations Act, 29 U.S.C. §§ 151-169, and extends
collective bargaining rights to employees of the state's
universities.
The statute divides university employees into various
"bargaining units" based on their occupational groups. See tit.
26, § 1024-A. The faculty in the university system make up one
particular bargaining unit, while "[s]ervice and maintenance"
employees, for example, constitute another. Id.
To facilitate labor negotiations, the statute provides,
among other things, that a union that receives majority support
within "a bargaining unit shall be recognized by the university,
academy or community colleges as the sole and exclusive bargaining
agent for all of the employees in the bargaining unit." Id.
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§ 1025(2)(B). Once so recognized, that union is the bargaining
unit's exclusive agent to bargain with the university system "with
respect to wages, hours, working conditions and contract grievance
arbitration." Id. § 1026(1)(C).
No employee bears an obligation to join a union, see id.
§ 1023, and, after Janus v. American Federation of State, County,
& Municipal Employees, Council 31, 138 S. Ct. 2448 (2018),
nonmember employees are not obliged to pay agency fees to the union
that serves as their bargaining unit's bargaining agent. However,
the statute does provide that the bargaining agent "is required to
represent all . . . employees within the unit without regard to
membership in the organization." tit. 26, § 1025(2)(E).
The Associated Faculties of the Universities of Maine
("AFUM" or "the Union") has represented the faculty bargaining
unit for Reisman's university since 1978. Reisman "resigned his
membership in [AFUM] because he opposes many of the positions
[AFUM] has taken, including on political and policy matters."
(Internal quotation and citation omitted).
On August 10, 2018, Reisman filed a complaint in the
United States District Court for the District of Maine. His
complaint alleges that the statute violates his First Amendment
rights because, "[b]y designating the Union as [his] exclusive
representative," the statute necessarily "compels [him] to
associate with the Union[,] . . . compels [him] to speak and to
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petition government, . . . [and] attributes the Union's speech and
petitioning to [him]." Reisman also requests a preliminary
"injunction barring Defendants from recognizing the Union as [his]
exclusive representative . . . [and] barring Defendants from
affording preferences to members of the Union."
On December 3, 2018, the District Court dismissed
Reisman's suit under Federal Rule of Civil Procedure 12(b)(6).
The next day, Reisman filed a notice of appeal. On December 14,
2018, Reisman filed a motion asking this Court for a summary
disposition. He argued that this Circuit's binding precedent
required us to affirm the District Court's decision and explained
that a summary disposition would allow him to petition the Supreme
Court for review more quickly. On February 6, 2019, we denied
Reisman's motion. This appeal from the District Court's dismissal
of his claims then followed. Our review is de novo. See Cunningham
v. Nat'l City Bank, 588 F.3d 49, 52 (1st Cir. 2009); see also
Doherty v. Merck & Co., 892 F.3d 493, 497 (1st Cir. 2018) (noting
that "challenges to the constitutionality" of state statutes are
reviewed de novo).
II.
Reisman first contends that, under the statute, as a
faculty member of the university he must accept AFUM as his
personal representative by virtue of its being the exclusive
bargaining agent for his bargaining unit. Reisman then argues
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that by forcing him to accept AFUM as his personal representative,
the statute impermissibly burdens his First Amendment speech and
associational rights, because it permits AFUM to speak for him
when he does not wish for it do so and compels him to associate
with AFUM when he does not wish to do so. His argument relies, in
large part, on Janus, in which the Supreme Court held that "public-
sector agency-shop arrangements violate the First Amendment." 138
S. Ct. at 2478. According to Reisman, "the logic of Janus, as
well as its application of that logic to the specific question of
compelled union representation" demonstrates the constitutional
problem with Maine's statute, though he is less clear in
identifying the precise remedy that he seeks for the claimed
violation.
Setting the question of remedy to the side, the
defendants respond in part by arguing that Janus is plainly
distinguishable, as it involved a First Amendment challenge to a
statutory requirement that a public employee pay an agency fee to
a union serving as the exclusive bargaining agent of a bargaining
unit. See id. at 2459-60. There is, the defendants, contend, no
comparable forced association or speech at issue here, as is shown
in our decision in D'Agostino v. Baker, 812 F.3d 240, 244 (1st
Cir. 2016) ("[E]xclusive bargaining representation by a
democratically selected union does not, without more, violate the
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right of free association on the part of dissenting non-union
members of the bargaining unit.").
We will return to the question of Janus's reach in a
moment. But, for present purposes, it is enough to focus on the
defendants' additional contention that the statute, fairly read,
simply does not support the premise of Reisman's constitutional
challenge -- that it designates AFUM as his personal
representative.
In contending otherwise, Reisman points out that the
statute states that an exclusive bargaining agent must "represent
all the university . . . employees within the [bargaining] unit
without regard to membership in the organization." Me. Stat. tit.
26, § 1025(2)(E). He emphasizes, too, that the statute provides
that "one of [the] primary purposes" of a "[b]argaining agent" is
"the representation of employees in their employment relations
with employers." Id. § 1022(1-B). And finally, Reisman notes
that, under the statute, a union becomes an exclusive bargaining
agent for a bargaining unit only when "a majority of . . .
employees in an appropriate bargaining unit . . . wish to be
represented for the purpose of collective bargaining." Id.
§ 1025(1). It is on the basis of these provisions that Reisman
seeks to make the case that once AFUM became the exclusive
bargaining agent for his bargaining unit, the statute transformed
it, by operation of law, into his personal representative,
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regardless of whether he agreed with its positions or whether he
wished to associate with it. And thus, given his reading of the
statute, he contends that it follows from Janus that the
statute -- by forcing him to associate with AFUM -- violates the
First Amendment no less than the statutory requirement to pay an
agency fee that the Court struck down in that case.
Yet, we must read the individual provisions of the
statute, including the provisions that Reisman seizes upon to mount
his constitutional challenge, in the context of the statute as a
whole and not in isolation. See Dickau v. Vt. Mut. Ins. Co., 107
A.3d 621, 628 (Me. 2014) ("[W]e examine the entirety of the
statute, 'giving due weight to design, structure, and purpose as
well as to aggregate language.'" (quoting Banknorth, N.A. v. Hart
(In re Hart), 328 F.3d 45, 48 (1st Cir. 2003))). And, when we do,
we conclude that the defendants have the better interpretation.
The statute repeatedly makes clear that a union that
acts as an exclusive bargaining agent is "the representative of a
bargaining unit." tit. 26, § 1025(2)(A) (emphasis added); see
also id. § 1025(2)(B) ("The bargaining agent certified as
representing a bargaining unit shall be recognized by the
university . . . as the sole and exclusive bargaining agent for
all of the employees in the bargaining unit." (emphasis added));
id. § 1037(1) ("The university, academy or community college shall
provide to a bargaining agent access to members of the bargaining
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unit that the bargaining agent exclusively represents." (emphasis
added)). Moreover, the statute contains a number of provisions
that preserve the rights of every employee to refrain from joining
a union without fear of discrimination, see id. § 1023(2),1 and to
present their grievances to the university system without
obtaining the permission of the bargaining agent, see id.
§ 1025(2)(E) (noting that an "employee may present at any time
that employee's grievance to the employer and have that grievance
adjusted without the intervention of the bargaining agent," so
long as the requested relief is consistent with the collective
bargaining agreement and a union representative is "given
reasonable opportunity to be present" at the meeting). In
addition, to ensure that no employee is discriminated against
during collective bargaining on account of their union membership,
the statute clarifies that the bargaining agent must bargain on
behalf of all "employees within the unit without regard to
membership in the organization." Id.
Considered in context, then, § 1025(2)(E) is not
properly read to designate AFUM as Reisman's personal
representative, as he contends. Rather, that provision merely
1The statute prohibits any "person" from acting to "interfere
with, intimidate, restrain, coerce or discriminate against [an]
. . . employee . . . in the free exercise of [his] right[], given
by the section, to voluntarily . . . not join a union." Id.
§ 1023.
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makes clear that a union, once it becomes the exclusive bargaining
agent for a bargaining unit, must represent the unit as an entity,
and not only certain of the employees within it, and then solely
for the purposes of collective bargaining. Nor are the other
provisions that Reisman relies on properly read to support his
contention. In fact, their plain terms accord with this more
limited understanding of the statute, see id. § 1022(1-B) (noting
that a bargaining agent "has as one of its primary purposes the
representation of employees in their employment relations with
employers" (emphasis added)); id. § 1025(1) (stating that an
"employee organization" may be voluntarily recognized as a unit's
bargaining agent when it "alleg[es] that a majority of the . . .
employees in an appropriate bargaining unit . . . wish to be
represented for the purpose of collective bargaining" (emphasis
added)).
If there were any doubt about the correctness of this
construction, moreover, we would be in no position to discard it
in favor of Reisman's. The text of the statute, when considered
in its entirety, by no means compels his view, and the Attorney
General of Maine plausibly contends that, under the statute, "the
union is the agent for the bargaining unit, which is a distinct
entity separate from the individual employees." See Forsyth Cty.
v. Nationalist Movement, 505 U.S. 123, 131 (1992) ("In evaluating
[appellant's] facial challenge, we must consider the [state's]
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authoritative constructions of the ordinance, including its own
implementation and interpretation of it."); Ward v. Rock Against
Racism, 491 U.S. 781, 795 (1989) ("Administrative interpretation
and implementation of a regulation are, of course, highly relevant
to our analysis.").
Reisman does attempt to advance an alternative challenge
in which he contends that, even if the statute merely makes the
union the representative of his bargaining unit for purposes of
collective bargaining, it still impermissibly burdens his First
Amendment rights. He argues that the distinction between having
a union represent a bargaining unit as an entity in collective
bargaining and having it represent the employees within the unit
individually is "immaterial because . . . the representation of
the 'unit as a whole' infringes the rights of all non-consenting
members of that unit." (Internal citation omitted).
But, the Supreme Court's decision in Minnesota State
Board for Community Colleges v. Knight, 465 U.S. 271 (1984), which
we cited favorably in response to a similar challenge in
D'Agostino, 812 F.3d 240, would appear to dispose of this
contention rather clearly. The Supreme Court in Knight rejected
a First Amendment challenge to a Minnesota law that provided for
"exclusive representation of community college faculty," 465 U.S.
at 278, for purposes of collective bargaining and "on matters
related to employment that are outside the scope of mandatory
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negotiations," id. at 274. We explained in D'Agostino that Knight
held that there is "no violation of associational rights by an
exclusive bargaining agent speaking for their entire bargaining
unit when dealing with the state even outside collective
bargaining." 812 F.3d at 243 (emphases added). And, as for
Reisman's apparent compelled speech claim, D'Agostino found that
Knight disposed of such a claim, too, for reasons worth quoting in
full:
No matter what adjective is used to
characterize it, the relationship [between a
bargaining unit and a bargaining agent] is one
that is clearly imposed by law, not by any
choice on a dissenter's part, and when an
exclusive bargaining agent is selected by
majority choice, it is readily understood that
employees in the minority, union or not, will
probably disagree with some positions taken by
the agent answerable to the majority. And the
freedom of the dissenting appellants to speak
out publicly on any union position further
counters the claim that there is an
unacceptable risk the union speech will be
attributed to them contrary to their own
views; they may choose to be heard distinctly
as dissenters if they so wish, and as we have
already mentioned the higher volume of the
union's speech has been held to have no
constitutional significance.
Id. at 244.
To be sure, D'Agostino was decided prior to Janus.
However, we are obliged to follow circuit precedent unless
undermined by intervening Supreme Court precedent or some other
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compelling authority. See United States v. Barbosa, 896 F.3d 60,
74 (1st Cir. 2018), cert. denied, 139 S. Ct. 579 (2018). And, as
Janus focuses on the unconstitutionality of a statute that requires
a bargaining unit member to pay an agency fee to her unit's
exclusive bargaining agent, see 138 S. Ct. at 2478, we cannot say
that precedent provides us with a basis for disregarding
D'Agostino. In any event, to the extent that Reisman adverted to
this alternative theory in his opening brief, as opposed to merely
in his reply brief and at oral argument, see Aulson v. Blanchard,
83 F.3d 1, 7 (1st Cir. 1996) ("[R]elief from an appellate court,
requested for the first time in a reply brief, is ordinarily denied
as a matter of course."); Bernardo ex rel. M & K Eng'g, Inc. v.
Johnson, 814 F.3d 481, 492 n.17 (1st Cir. 2016) (noting that
contentions "raised [] for the first time at oral argument . . .
[are] waived"), he has waived it for lack of development on appeal.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
III.
The District Court's judgment is affirmed.
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