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,

. Enacted in 1975, the statute is modeled on the

National Labor Relations Act,

, 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.

- 3 - § 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,

(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

- 4 - 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,

(1st Cir. 2009); see also

Doherty v. Merck & Co.,

(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

- 5 - 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."

. 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

. 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,

(1st

Cir. 2016) ("[E]xclusive bargaining representation by a

democratically selected union does not, without more, violate the

- 6 - 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."

(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."

§ 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,

- 7 - 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.,

(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),

(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

- 8 - 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.

- 9 - 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,

(1992) ("In evaluating

[appellant's] facial challenge, we must consider the [state's]

- 10 - authoritative constructions of the ordinance, including its own

implementation and interpretation of it."); Ward v. Rock Against

Racism,

(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,

(1984), which

we cited favorably in response to a similar challenge in

D'Agostino,

, 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,"

, for purposes of collective bargaining and "on matters

related to employment that are outside the scope of mandatory

- 11 - negotiations,"

. 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."

(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

- 12 - compelling authority. See United States v. Barbosa,

(1st Cir. 2018), cert. denied,

(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

, 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,

(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,

, 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,

(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.

- 13 -