Dоnohue v. Milan; Donohue v. Milan; N.Y.S. Thruway Emps. v. N.Y.S. Thruway Auth.
Docket Nos. 17-2832-cv, 17-2833-cv, 17-2834-cv
United States Court of Appeals, Second Circuit
Decided: November 18, 2019
17-2832-cv, 17-2833-cv, 17-2834-cv
Donohue v. Milan; Donohue v. Milan; N.Y.S. Thruway Emps. v. N.Y.S. Thruway Auth.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2018
(Argued: March 13, 2019 Decided: November 18, 2019)
Docket Nos. 17-2832-cv, 17-2833-cv, 17-2834-cv
DANNY DONOHUE, AS PRESIDENT OF THE CIVIL SERVICE EMPLOYEES
ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CIVIL SERVICE
EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL-CIO, JOHN
DELLIO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, MICHAEL BOULERIS, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED, MAUREEN ALONZO, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, MARCOS
DIAMANTATOS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Appellees,
v.
CARLOS MILAN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF
EMPLOYEE RELATIONS AND EMPLOYEE SAFETY, NEW YORK STATE
THRUWAY AUTHORITY AND NEW YORK STATE CANAL CORPORATION,
HOWARD P. MILSTEIN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS CHAIRMAN OF NEW YORK STATE THRUWAY/CANAL CORPORATION
BOARD OF DIRECTORS, DONNA J. LUH, INDIVIDUALLY, E. VIRGIL
CONWAY, IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF NEW
YORK STATE THRUWAY/CANAL CORPORATION BOARD OF DIRECTORS,
RICHARD N. SIMBERG, INDIVIDUALLY, BRANDON R. SALL,
INDIVIDUALLY, J. DONALD RICE, JR., INDIVIDUALLY, JOSE HOLGUIN-
VERAS, INDIVIDUALLY, NEW YORK STATE THRUWAY AUTHORITY,
Defendants-Appellants,
THOMAS J. MADISON, JR., INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE
THRUWAY AUTHORITY AND THE NEW YORK STATE CANAL
CORPORATION,
Defendants.
DANNY DONOHUE, AS PRESIDENT OF THE CIVIL SERVICE EMPLOYEES
ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, CIVIL SERVICE
EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO,
WILLIAM COLEMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, WILLIAM MILLER, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, JOHN METZGIER,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
JACK WIEDEMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Appellees,
JOHN DELLIO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, MICHAEL BOULERIS, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, MAUREEN ALONZO,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
MARCOS DIAMANTATOS, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, NEW YORK STATE THRUWAY
EMPLOYEES LOCAL 72, JOSEPH E. COLOMBO, GEORGE E. SAVOIE, DAVID
M. MAZZEO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs,
v.
CARLOS MILAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF EMPLOYEE RELATIONS AND EMPLOYEE SAFETY, NEW
YORK STATE THRUWAY AUTHORITY AND NEW YORK STATE CANAL
CORPORATION, BRIAN U. STRATTON, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DIRECTOR OF THE NEW YORK STATE CANAL
CORPORATION, HOWARD P. MILSTEIN, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS CHAIRMAN OF NEW YORK STATE THRUWAY
AUTHORITY/CANAL CORPORATION BOARD OF DIRECTORS, E. VIRGIL
CONWAY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BOARD
MEMBER OF THE NEW YORK STATE THRUWAY/CANAL CORPORATION
BOARD OF DIRECTORS, NEW YORK STATE THRUWAY AUTHORITY, NEW
YORK STATE CANAL CORPORATION, DONNA J. LUH, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY AS VICE-CHAIRMAN NEW YORK
STATE THRUWAY/CANAL CORPORATION BOARD OF DIRECTORS AND
IN HER OFFICIAL CAPACITY AS VICE-CHAIR OF THE NEW YORK STATE
THRUWAY AUTHORITY BOARD OF DIRECTORS, RICHARD N. SIMBERG,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
THE NEW YORK STATE THRUWAY/CANAL CORPORATION BOARD OF
DIRECTORS AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
THE NEW YORK STATE THRUWAY AUTHORITY, BRANDON R. SALL,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
NEW YORK STATE THRUWAY/CANAL CORPORATION BOARD OF
DIRECTORS AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
THE NEW YORK STATE THRUWAY AUTHORITY, J. DONALD RICE, JR.,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
THE NEW YORK STATE THRUWAY/CANAL CORPORATION BOARD OF
DIRECTORS, JOSE HOLGUIN-VERAS, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS BOARD MEMBER OF NEW YORK STATE
THRUWAY/CANAL CORPORATION BOARD OF DIRECTORS AND IN HIS
OFFICIAL CAPACITY AS BOARD MEMBER OF THE NEW YORK STATE
THRUWAY AUTHORITY,
Defendants-Appellants,
THOMAS J. MADISON, JR., INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE
THRUWAY AUTHORITY AND THE NEW YORK STATE CANAL
CORPORATION,
Defendant.
NEW YORK STATE THRUWAY EMPLOYEES LOCAL 72, JOSEPH E.
COLOMBO, GEORGE SAVOIE, DAVID M. MAZZEO, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v.
NEW YORK STATE THRUWAY AUTHORITY, HOWARD P. MILSTEIN,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE
NEW YORK STATE THRUWAY AUTHORITY, THOMAS RYAN, IN HIS
OFFICIAL CAPACITY, E. VIRGIL CONWAY, IN HIS OFFICIAL CAPACITY AS
BOARD MEMBER OF THE NEW YORK STATE THRUWAY AUTHORITY,
BRANDON R. SALL, IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
THE NEW YORK STATE THRUWAY AUTHORITY, JOHN F. BARR, IN HIS
OFFICIAL CAPACITY AS DIRECTOR OF ADMINISTRATIVE SERVICES OF
THE NEW YORK STATE THRUWAY AUTHORITY, DONNA J. LUH, IN HER
OFFICIAL CAPACITY AS VICE-CHAIR OF THE NEW YORK STATE
THRUWAY AUTHORITY BOARD OF DIRECTORS, RICHARD N. SIMBERG,
IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF THE NEW YORK
STATE THRUWAY AUTHORITY, J. DONALD RICE, JR., IN HIS OFFICIAL
CAPACITY AS BOARD MEMBER OF THE NEW YORK STATE THRUWAY
AUTHORITY, JOSE HOLGUIN-VERAS, IN HIS OFFICIAL CAPACITY AS
BOARD MEMBER OF THE NEW YORK STATE THRUWAY AUTHORITY,
Defendants-Appellants,
THOMAS J. MADISON, JR., INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE
THRUWAY AUTHORITY, JOHN M. BRYAN, IN HIS OFFICIAL CAPACITY AS
CHIEF FINANCIAL OFFICER AND TREASURER OF THE NEW YORK STATE
THRUWAY AUTHORITY, JOSEPH BRESS, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS CHIEF NEGOTIATOR OF THE NEW YORK STATE
THRUWAY AUTHORITY, HOWARD GLASER, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DIRECTOR OF STATE OPERATIONS AND SENIOR
POLICY ADVISOR TO THE GOVERNOR OF NEW YORK, DONALD R. BELL,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF
MAINTENANCE AND OPERATIONS OF THE NEW YORK STATE THRUWAY
AUTHORITY,
Defendants.
Before: WESLEY, LOHIER, and SULLIVAN, Circuit Judges.
In this appeal, we consider whether State Employees Bargaining Agent Coalition v. Rowland, which held that union activity is protected by the First Amendment right to freedom of association and that heightened scrutiny applies to employment decisions that target an employee “based on union membership,” 718 F.3d 126, 134 (2d Cir. 2013), extends to agency fee payors (AFPs), who are not union members, based solely on the fact that AFPs are represented by a union during collective bargaining. We hold that First Amendment protections apply to union members but do not extend to AFPs based on union representation alone. We therefore VACATE and REMAND the District Court’s order as it applies to AFPs but AFFIRM the District Court’s order as it applies to union members.
Norma G. Meacham, Monica R. Skanes, on
the brief), Whiteman Osterman & Hanna
LLP, Albany, NY, for Defendants-Appellants.
AARON E. KAPLAN (Daren J. Rylewicz,
Jennifer C. Zegarelli, on the brief), Civil
Service Employees Association, Inc.,
Albany, NY, for Plaintiffs-Appellees in
Donohue et al. v. Milan et al., 17-2832-cv,
Donohue et al. v. Milan et al., 17-2833-cv.
GREGG D. ADLER (Nicole M. Rothgeb, on the
brief), Livingston, Adler, Pulda, Meiklejohn
& Kelly, P.C., Hartford, CT, for Plaintiffs-
Appellees in N.Y. State Thruway Emps. Local
72 et al. v. N.Y. State Thruway Authority et
al., 17-2834-cv.
LOHIER, Circuit Judge:
In State Employees Bargaining Agent Coalition v. Rowland, we held that
union activity is protected by the First Amendment right to freedom of
association and that heightened scrutiny therefore applies to employment
decisions that target an employee “based on union membership.” 718 F.3d 126,
134 (2d Cir. 2013). Many of the plaintiffs in this case are union members and
thus clearly enjoy First Amendment protections based on their voluntary
association with a union. But a small subset of the plaintiffs are non-union
members called agency fee payors (AFPs). The main question here is whether, in
light of Rowland, the AFPs’ First Amendment rights are prоtected solely because
the AFPs are represented by a union during collective bargaining.
In an order granting summary judgment in favor of the Plaintiffs, the
United States District Court for the Northern District of New York (Scullin, J.)
interpreted our decision in Rowland to mean that strict scrutiny applies to a
public employer’s decision to fire both union members and AFPs because they
are represented by unions during collective bargaining. Donohue v. Madison
(“Donohue I”), No. 1:13-CV-918 (FJS) (CFH), 2017 WL 2171276, at *3-6 (N.D.N.Y.
Apr. 14, 2017). The District Court ultimately certified its order for interlocutory
appeal pursuant to
No. 1:13-CV-918 (FJS) (CFH), 2017 WL 3206326, at *4-5 (N.D.N.Y. July 27, 2017).
On appeal, we conclude that the AFPs’ First Amendment right to association was
not protected solely because the AFPs were represented by the union during
collective bargaining. We therefore VACATE and REMAND the District Court’s
order as it applies to AFPs but AFFIRM the District Court’s order as it applies to
union members.
1. Facts
The New York State Thruway Authority (the Authority) finances,
reconstructs, and operаtes the New York State Thruway and New York’s canal
system. For a number of years, the Authority faced significant financial
pressures, including mounting debt due to the repair of aging infrastructure and
rising health insurance costs for employees. In response, the Authority
implemented cost-saving measures, including freezing salary increases for its
non-unionized employees from 2009 to 2012. In 2012 the Authority’s credit
rating fell as it prepared to finance a replacement for the Tappan Zee Bridge. Thе
Authority sought recurring operational cost reductions from its union-
represented employees by getting concessions from its unions during
negotiations over new collective bargaining agreements (CBAs).
The Authority recognized three unions as the bargaining agents for four
separate bargaining units of employees. New York law and the CBAs made
anyone who accepted an Authority position in a bargaining unit a “union-
represented” employee. See
employees in turn were divided into two groups: union members who had
signed a uniоn membership card; and AFPs, who were not union members but
were still represented by unions in collective bargaining. In accordance with
then-governing law, see Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235-42
(1977), overruled by Janus v. Am. Fed’n of State, Cty., & Mun. Emps., 138 S. Ct.
2448 (2018), AFPs were obligated to pay fees to support collective bargaining but
could object to having their fees used to support the unions’ political and
ideological projects and, if they objected, receive a prorated refund.1
Beginning in 2012, the Authority warned both the unions and union-
represented employees that layoffs might result from the uniоns’ refusal to make
certain concessions with respect to the CBAs. After talks broke down, the
Authority, true to its word, implemented a reduction in force (RIF). The RIF
terminated only union-represented employees—218 union members and thirteen
AFPs—eliminating a total of 231 full-time positions apportioned among the four
bargaining units.
Notes
unwilling to have their union fees expended on political and ideological activities. See
Abood, 431 U.S. at 237-41. Under the Supreme Court’s recent decision in Janus, a union
may no longer extract аny fee from an AFP absent the AFP’s affirmative consent. 138 S.
Ct. at 2486.
Plaintiffs-appellees New York State Thruway Employees, Teamsters Local
72 (the Teamsters) and Civil Service Employees Association, Inc., Local 1000,
AFSCME, AFL-CIO (CSEA) are two of the unions recognized by the Authority,
and together they represent the vast majority of the 231 employees who were
laid off.
2. Procedural History
Following the RIF, the Plaintiffs sued the Authority and a number of state
officials (together, the Defendants) under
alleging that the termination of union-represented employees violated the
employees’ First Amendment right to associate. Donohue I, 2017 WL 2171276, at
*2. After the Plаintiffs moved for class certification, the parties, each relying on
Rowland, cross-moved for summary judgment on the Plaintiffs’ First
Amendment claim. Id. at *1. Describing Rowland as “fundamentally concerned
with the use of targeted layoffs to penalize and pressure the bargaining coalition
to accept the defendants’ concessions to sign a new CBA,” the District Court
concluded that heightened scrutiny applied to employment decisions based on
union representation without regard to whether the affected employees were
union members. Id. at *6. The court denied summary judgment because
material factual disputes remained with respect to whether the RIF was narrowly
tailored to serve a vital state interest. Id. at *6-8.
The Defendants moved for reconsideration, arguing that heightened
scrutiny did not apply to all union-represented employees and that, in any event,
the Plaintiffs had fаiled to show that union-represented employees were targeted
because of their association with a union. Donohue II, 2017 WL 3206326, at *1.
Although the District Court denied the motion, it certified to this Court the
following question: “Under Rowland, are ‘union-represented individuals during
the bargaining process’—consisting of both union members and agency fee shop
payors—a proteсted class, such that employment decisions based on employees’
union representation during collective bargaining are subject to strict scrutiny?”
Id. at *5. In certifying the question, the District Court also clarified that
“Plaintiffs [would] have to establish causation at trial.” Id. at *3.
The Plaintiffs’ only unresolved motion before the District Court, for class
certification, remains pending since we stayed all District Court proceedings
when we granted the Defendants’ motion for leave to appeal the District Court’s
interlocutory order.
DISCUSSION
1. The Certified Question
When a district court certifies a question of controlling law pursuant to
the question as framed by the district court.” City of New York v. Beretta U.S.A.
Corp., 524 F.3d 384, 392 (2d Cir. 2008); see Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199, 204-05 (1996). We can therefore review “any issue fairly
included within the certified order,” Cal. Pub. Emps.’ Ret. Sys. v. WorldCom,
Inc., 368 F.3d 86, 95 (2d Cir. 2004) (quotation marks omitted), and “consider a
question different than the one certified as controlling,” Yamaha, 516 U.S. at 205
(quotation marks omitted); see also 16 CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE: JURISDICTION § 3929 (3d ed. 2019) (“The court may . . .
consider any question reasonably bound up with the certified order, whether it is
antecedent to, broader or narrower than, or different from the question specified
by the district court.”).
The District Court applied heightened scrutiny to the Defendants’
termination of AFPs based on their union representation. Donohue I, 2017 WL
2171276, at *6. On appeal, the Plaintiffs similarly argue for the extensiоn of First
Amendment protections to AFPs based entirely on the fact that a union
represented them in collective bargaining. At oral argument, however, the
Plaintiffs also expressly disclaimed any argument that the AFPs are protected
under a thеory of First Amendment associational rights in this case. We
therefore leave that question for another day and consider a slightly modified
question on appeal: “Under Rowland, do employees enjoy First Amendment
protections merely because they are represented by a union during collective
bargaining suсh that an employment decision based on that representation is
subject to strict scrutiny?” Our answer to the modified question is no. At the
same time, we reaffirm that strict scrutiny applies to employment decisions
based on an employee’s status as a union member.2
“analyze[d] . . . together” with the First Amendment targeting claim because it viewed
the claims as “rais[ing] identical issues.” See Donohue I, 2017 WL 2171276 at *2 n.5, *3.
The District Court’s holding relied entirely on its interpretation of Rowland. See id. at
*6; see also Donohue II, 2017 WL 3206326 at *2-3, 4. Thus, since we find that under
Rowland employees do not enjoy First Amendment protections merely because they are
represented by a union during collective bargaining, we need not address whether
Plaintiffs’ termination violated the Equal Protection Clause here. On remand, the
District Court should revisit the Plaintiffs’ Equal Protection claim in light of this
opinion.
2. The First Amendment
As to both AFPs and union members, we start and end our analysis with
Rowland. There we explained that conditioning public employment on union
membership inhibited an employee’s fundamental right to associate with a union
and therefore triggered heightened scrutiny. Rowland, 718 F.3d at 133-34. We
have previously explained that public emрloyment decisions that do not
implicate a fundamental right are subject to rational basis review, a standard that
requires only “a nexus between legitimate government ends falling within
constitutionally permissible powers, and a means not prohibited by the
Constitution to achieve them.” Zalewska v. Cty. of Sullivan, 316 F.3d 314, 322
(2d Cir. 2003). Our holding in Rowland flows from the principle that the First
Amendment protects “the practice of persons sharing common views banding
together to achieve a common end.” N.A.A.C.P. v. Claiborne Hardware Co., 458
U.S. 886, 907 (1982) (quotation marks omitted). But Rowland did not say that
being represented by a labor union during collective bargaining by itself
conferred First Amendment protection and the heightened scrutiny that comes
with it. See Rowland, 718 F.3d at 132-34. To be sure, collective bargaining
activitiеs implicate the First Amendment right to freedom of association because
these activities represent the “common end” of a union’s collective efforts.
Claiborne, 458 U.S. at 907; see also Roberts v. U.S. Jaycees, 468 U.S. 609, 622
(1984); Rowland, 718 F.3d at 132-34. We therefore examine those activities to
determine if the right hаs been violated. But we have never held that anyone
who is represented during collective bargaining is for that reason alone entitled
to First Amendment protection from government interference, and we decline to
do so now.
A. AFPs
As noted abоve, the Plaintiffs, echoing the District Court, nevertheless
argue that the AFPs were protected by the First Amendment solely because a
union represented them during collective bargaining. But we disagree that an
employee enjoys First Amendment protections merely because the employee,
like each AFP in this case, is represented by a union during collective bargaining.
If that were true, then any person represented by an organization involved in an
activity of politicаl, cultural, religious, or economic importance would receive
First Amendment protection based on the right to engage in expressive
association. That is obviously not the case: When determining whether a person
represented by an organization may lay claim to an associational right, we
consider whether that person has engaged with others in a “collective effort on
behalf of shared goals.” Roberts, 468 U.S. at 622. Although for purposes of
making that determination not all AFPs are similarly situated, as the Plaintiffs
appear tо presuppose, crucially, all AFPs are represented by the union not
because of their choice to engage with the union, but by operation of New York
law and the terms of the CBAs. Consequently, AFPs who affirmatively
disassociated with a union by objecting to paying for a union’s political and
ideological projects but who continued to be represented by the union during
collective bargaining could not claim that an adverse employment action
interfered with their right to associate with the union. In extending Rowland to
all AFPs purely because they were represented by a union in collective
bargaining, the District Court went too far.
For these reasons, we conclude that AFPs do not have a First Amendment
right to freedom of association merely because they are represented by a union
during collective bargaining.3 We therefore remand this case to the District
Court to determine whether the layoffs of the thirteen AFPs were justified under
associational rights based on their engagement in a colleсtive effort with union
members.
rational basis review. See Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 359
(2009); Kraham v. Lippman, 478 F.3d 502, 506 (2d Cir. 2007). In doing so, we
recognize, as the District Court did, that on remand “it is highly likely that
Defendants’ decision to terminate [union-represented] employees would pass
rational basis review.” Donohue II, 2017 WL 3206326, at *4. But we think the
District Court is better positioned to consider that question in the first instance.
B. Union Members
The terminatiоn of those Plaintiffs who are union members is another
matter altogether. Under Rowland, union members clearly enjoy a First
Amendment right to associate in labor unions. See Rowland, 718 F.3d at 134
(noting the “well-established principle that union activity is protected by the
First Amendment”). The Authority itself acknowledges as much. See
Appellants’ Br. 21-22. If the Authority terminated the union members because оf
their union membership—a factual question the District Court decided to let a
jury determine—then strict scrutiny applies to its employment decision. We
therefore affirm the District Court’s decision as it applies to those Plaintiffs who
are union members.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is
AFFIRMED in part and VACATED and REMANDED in part. Our previous
stay of all proceedings in the District Court, including the Plaintiffs’ motion for
class certification, is hereby lifted. On remand, the District Court should
consider whether to certify a class limited to the union members alone, consistent
with this opinion.