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.
No. 18-2201
United States Court of Appeals For the First Circuit
October 4, 2019
Before Thompson, Selya, and Barron, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon D. Levy, U.S. District Judge]
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.
I.
The Maine statute that Reisman challenges is the University of Maine System Labor Relations Act,
The statute divides university employees into various “bargaining units” based on their occupational groups. See
No employee bears an obligation to join a union, see
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 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
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 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
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 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.”
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.”
Considered in context, then,
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
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] 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
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 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.
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 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.