United States Court of Appeals For the First Circuit

No. 22-1466

RICHARD J. PELTZ-STEELE,

Plaintiff, Appellant,

v.

UMASS FACULTY FEDERATION, LOCAL 1895 AMERICAN FEDERATION OF TEACHERS, AFL-CIO; MARTIN MEEHAN, in his official capacity as the President of the University of Massachusetts; MAURA HEALEY, in her official capacity as the Attorney General of Massachusetts; MARJORIE WITTNER, JOAN ACKERSTEIN, and KELLY STRONG, in their official capacities as members of the Commonwealth Employment Relations Board,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Lynch, Circuit Judges.

Reilly Stephens, with whom Jeffrey M. Schwab, Liberty Justice Center, Matthew L. Fabisch, and Fabisch Law were on brief, for appellant.

Jacob Karabell, with whom Bredhoff & Kaiser PLLC was on brief, for appellee UMass Faculty Federation.

Timothy J. Casey, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for state appellees. February 14, 2023 BARRON, Chief Judge. We confront in this appeal the

question whether a public employee's rights to freedom of speech

and association under the First Amendment to the U.S. Constitution

are infringed when a public employer authorizes a union to serve

as the exclusive representative in collective bargaining for

employees within that employee's designated bargaining unit.

Twice before we have held that such First Amendment rights are not

infringed in that circumstance. See Reisman v. Associated Facs.

of the Univ. of Me.,

(1st Cir. 2019); D’Agostino v.

Baker,

(1st Cir. 2016). We now reach that same

conclusion yet again, this time in connection with a suit brought

in the United States District Court for the District of

Massachusetts by a professor at the University of Massachusetts at

Dartmouth ("UMass Dartmouth") School of Law against, among other

defendants, the union that represents his bargaining unit.

I.

A.

Like most other states, Massachusetts "allows public

sector employees in a designated bargaining unit to elect a union

by majority vote to serve as their exclusive representative in

collective bargaining with their government employer." Branch v.

Commonwealth Emp. Rels. Bd.,

(Mass. 2019).

This authorization is set forth in Massachusetts General Laws,

chapter 150E, section 2, which provides that public "[e]mployees

- 3 - shall have the right of self-organization and the right to form,

join, or assist any employee organization for the purpose of

bargaining collectively through representatives of their own

choosing on questions of wages, hours, and other terms and

conditions of employment."

Under Section 4 of Chapter 150E, public employers "may

recognize an employee organization designated by the majority of

the employees in an appropriate bargaining unit as the exclusive

representative of all the employees in such unit for the purpose

of collective bargaining" (emphasis added). Section 5 provides

that a union that is so selected "shall have the right to act for

and negotiate agreements covering all employees in the unit"

(emphasis added).

The union's right to serve as the exclusive bargaining

representative under Chapter 150E is limited to the traditional

subjects of collective bargaining -- i.e., "wages, hours,

standards or productivity and performance, and any other terms and

conditions of employment."

§ 6; see also City of Worcester

v. Lab. Rels. Comm’n,

, 634 (Mass. 2002) (explaining

that the "crucial factor in determining whether a given issue is

a mandatory subject of bargaining is whether resolution of the

issue at the bargaining table is deemed to conflict with perceived

requirements of public policy" (quoting Marc D. Greenbaum, The

Scope of Mandatory Bargaining Under Massachusetts Public Sector

- 4 - Labor Relations Law,

, 103 (1987))). In all

such bargaining, moreover, the union must represent "the interests

of all . . . employees without discrimination and without regard

to employee organization membership." Mass. Gen. Laws, ch. 150E,

§ 5.

To that latter end, Chapter 150E expressly provides that

employees within the bargaining unit "have the right to refrain

from any or all" collective bargaining activities. Id. § 2.

Chapter 150E also bars public employers from interfering with,

restraining, or coercing any employee in the exercise of any right

granted by Chapter 150E, id. § 10(a)(1); discriminating "in regard

to hiring, tenure, or any term or condition of employment to

encourage or discourage membership in any employee organization,"

id. § 10(a)(3); and discriminating "on the basis of the employee's

membership, nonmembership or agency fee status in the employee

organization or its affiliates," id. § 12.

B.

In September 2021, Peltz-Steele filed a complaint under

in the United States District Court for the

District of Massachusetts based on the First Amendment against the

UMass Faculty Federation, Local 1895, American Federation of

Teachers, AFL-CIO ("Union"), as well as the president of the UMass

system, the attorney general of Massachusetts, and members of the

- 5 - Commonwealth Employment Relations Board. The complaint alleges

the following facts.

Peltz-Steele is the Chancellor Professor at the UMass

Dartmouth School of Law. His bargaining unit is composed of

members of the UMass Dartmouth faculty, and that unit has selected

the Union as its exclusive representative for purposes of

collective bargaining under Chapter 150E. The Commonwealth

Employment Relations Board has certified the Union as the exclusive

bargaining representative for collective bargaining with respect

to employees in Peltz-Steele's bargaining unit. See Mass. Gen.

Laws, ch. 150E, § 4. Peltz-Steele has declined to join the Union

and "does not wish to associate with the Union, including having

the Union serve as his exclusive bargaining representative."

In the wake of financial losses related to the COVID-19

pandemic, the Union and a coalition of unions representing UMass

Dartmouth employees in other bargaining units entered into

negotiations in 2020 with the university administration regarding

potential staffing and/or salary cuts. Under UMass Dartmouth's

initial proposal, UMass Dartmouth would have either laid off "80+

employees" in the relevant bargaining units or implemented a five

percent "across the board cut to employee pay."

The unions -- including the one that served as the

exclusive bargaining representative for Peltz-Steele's bargaining

unit -- eventually negotiated an agreement that implemented a

- 6 - progressive pay reduction based on existing salary in exchange for

a promise from UMass Dartmouth that no bargaining-unit employees

would be terminated until July 1, 2021. That agreement, when

combined with a separate "law-school specific" reduction in Peltz-

Steele's research funding, resulted in his income being reduced by

12 percent. And, in Peltz-Steele's view, "given the existing

salary scale at the law school, all full time faculty [we]re [left]

worse off under the Union's plan than under the University's

original proposal."

The complaint alleges that the defendants infringed

Peltz-Steele's First Amendment rights by compelling his speech and

association during the negotiations regarding the 2020 pay cuts,

which Peltz-Steele accepts qualify as a traditional subject of

collective bargaining. The complaint contends that the defendants

infringed those rights by making the Union his exclusive

representative in that process pursuant to Chapter 150E, despite

his not being a member of the Union. Peltz-Steele does not allege

that he has been required to financially support the Union, or

that he is otherwise restricted from expressing his opposition to

the Union's bargaining positions.1 As relief, the complaint seeks

1 Peltz-Steele did allege in his complaint that he was barred from individually filing grievances about actions taken by the Union, but he voluntarily dismissed that claim because the parties agree that Massachusetts law already allows him to do so without representation by the Union. That claim is therefore not before us on appeal.

- 7 - a declaration that "the exclusive representation provided for in

[Chapter 150E] is unconstitutional" under the First Amendment as

well as an order that enjoins the defendants from enforcing or

giving effect to certain of its provisions.

The Union and the other defendants filed motions to

dismiss under Federal Rule of Civil Procedure 12(b)(6). At a

brief hearing on May 11, 2022, the District Court granted those

motions from the bench, ruling that it was "bound by First Circuit

precedent" to reject Peltz-Steele's claim that the exclusive

representation provisions of the Massachusetts public sector

collective bargaining law compel speech and association in

violation of the First Amendment. The District Court thereafter

issued a memorandum that explained its reasoning as to why

"precedent squarely -- and justifiably -- forecloses a First

Amendment challenge to exclusive representation for public-sector

unions." Peltz-Steele v. UMass Fac. Fed'n, ___ F. Supp. 3d ___,

, at *1 (D. Mass. Aug. 25, 2022).

This timely appeal followed. Our review is de novo.

Pagán-González v. Moreno,

(1st Cir. 2019).

II.

Peltz-Steele recognizes that the District Court held

that it was bound to rule as it did by two of our prior precedents:

D'Agostino,

(holding that "exclusive bargaining

representation by a democratically selected union does not,

- 8 - without more, violate the right of free association on the part of

dissenting non-union members of the bargaining unit"), and

Reisman, 939 F.3d at 412-14 (same). D'Agostino was decided before

the Supreme Court of the United States decided Janus v. American

Federation of State, County, & Municipal Employees,

(2018), which overruled Abood v. Detroit Board of Education,

(1977), and held that the First Amendment prohibits

a union's mandatory assessment of "agency fees" on nonunion members

to compensate the union for costs incurred in collective

bargaining. But, Peltz-Steele recognizes both that Reisman was

decided after Janus and that Reisman expressly stated that Janus

did not provide a basis for departing from our holding in

D'Agostino because Janus concerned only the constitutionality of

a public sector union's mandatory imposition of agency fees. See

Reisman, 939 F.3d at 414. Peltz-Steele nonetheless contends that

the law of the circuit doctrine, which obliges us to follow closely

on point circuit precedent unless it has been undermined by

intervening Supreme Court precedent or some other compelling

authority, id. (citing United States v. Barbosa,

(1st Cir. 2018)), does not require us to affirm the District

Court's judgment for two independent reasons. As we will explain,

neither reason is persuasive.

- 9 - A.

We begin with Peltz-Steele's contention that Reisman is

not controlling here because it is distinguishable on the facts

and so the law of the circuit doctrine has no application in his

case. The factual distinction on which Peltz-Steele relies is

based on a difference in wording between the Massachusetts statute

at issue here and the Maine statute at issue in Reisman. In

pressing this contention, Peltz-Steele does not dispute that, as

the District Court explained, Reisman rejected a post-Janus

challenge to provisions of a Maine law that authorized state-

university employees to elect an exclusive representative to

bargain with the university system on the ground that "the statute

did not designate the union [as the plaintiff's] personal

representative, but rather the representative of his '[bargaining]

unit as an entity.'" Peltz-Steele,

, at *7 (quoting

Reisman, 939 F.3d at 413) (emphases and second alteration in

original). Nor does he dispute that Reisman concluded that this

feature of the Maine law was significant because it revealed that

one could not understand the union's speech in that case to

constitute the speech of an individual nonunion employee -- much

less of a dissenting member of the bargaining unit who paid no

dues to the union that served as the exclusive bargaining

representative. See 939 F.3d at 414. Peltz-Steele contends only

that this rationale has no application here because the

- 10 - Massachusetts statutory scheme that he is challenging does not

make a similar distinction between the bargaining unit for which

the union is the exclusive representative and the individual

employees in that unit that Reisman deemed dispositive.

To make that case, Peltz-Steele points to language of

the Massachusetts statute that states that the exclusive

representative shall have the right to act for and negotiate

agreements covering "all employees in the unit" and shall be

responsible for representing "the interests of all such

employees." Mass. Gen. Laws ch. 150E, § 5. He points as well to

Section 4 of Chapter 150E, which provides that "[p]ublic employers

may recognize an employee organization designated by the majority

of the employees in an appropriate bargaining unit as the exclusive

representative of all the employees in such unit for the purpose

of collective bargaining."

But, the fact that the Massachusetts statute recognizes

that a bargaining unit is composed of a number of individual

employees does not make the statute materially different from the

Maine statute that we upheld in Reisman. After all, the Maine

statute that Reisman upheld itself provided that "[t]he bargaining

agent certified as representing 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 . . . ." See

- 11 - (emphasis added). In addition, that statute provided that "the

exclusive bargaining agent for a unit is required to represent all

the university, academy or community college employees within the

unit without regard to membership,"

and that "bargaining

agent" "means any lawful [organization or its representative]

which has as one of its primary purposes the representation of

employees in their employment relations with employers and which

has been certified by the Executive Director of the Maine Labor

Relations Board,"

§ 1022.

Moreover, a provision of the Massachusetts statute at

issue here that Peltz-Steele does not reference makes clear that,

like the Maine statute at issue in Reisman, 939 F.3d at 412-13,

the Massachusetts statute authorizes a union selected to be an

exclusive bargaining representative to bargain only on behalf of

the bargaining unit and not on behalf of any individual employee

independent of the unit itself. Indeed, the very first section

of Chapter 150E defines the "written majority authorization"

necessary to serve as such a representative as a writing "signed

and dated by employees . . . in which a majority of employees in

an appropriate bargaining unit designates an employee organization

as its representative for the purpose of collective bargaining."

Mass. Gen. Laws ch. 150E, § 1 (emphases added).

Thus, there is no material distinction between this

Massachusetts law and the Maine law that we upheld in Reisman.

- 12 - Accordingly, Reisman may not be distinguished on the facts, and so

this ground for contending that the law of the circuit doctrine

does not dictate the outcome here is unconvincing.

B.

That leaves Peltz-Steele's contention that Reisman is

not controlling here because, even if that case is not different

factually from this one, Reisman failed to consider key aspects of

the Supreme Court's ruling in Janus.

But, here, too, we are not persuaded. As we have noted,

Peltz-Steele recognizes that Reisman expressly addressed the

import of Janus in upholding the Maine measure against First

Amendment challenges very much like those that he brings against

the defendants in this case. In that regard, Reisman explained

that D'Agostino 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," in part based on the

Supreme Court's decision in Minnesota State Board for Community

Colleges v. Knight,

(1984). See Reisman, 939 F.3d

at 414 (emphasis in original) (quoting D'Agostino,

). There, the Supreme Court held that there is no such

violation of associational rights by an exclusive bargaining agent

speaking for the entire bargaining unit on matters "even outside

collective bargaining." Id. at 414 (emphasis in original)

(quoting D'Agostino,

). Reisman further explained

- 13 - that, although Janus was decided after D'Agostino, Janus's holding

did not provide a basis for disregarding D'Agostino because Janus

focused only on "the unconstitutionality of a statute that

require[d] a bargaining unit member to pay an agency fee to her

unit's exclusive bargaining agent."

(emphasis added).

Nonetheless, Peltz-Steele points out that Reisman did

note that it considered the plaintiff's argument that Janus

provides "a basis for disregarding D'Agostino" waived because the

contention was only made in a reply brief.

He thus contends

that nothing in Reisman bars us from now considering the preserved

arguments that he advances as to why Janus does undermine

D'Agostino -- and so Reisman as well.

To make that case, Peltz-Steele first points to a passage

in Janus that states that "designating a union as the exclusive

representative of nonmembers substantially restricts the

nonmembers' rights."

. He then also points to

a passage in Janus that states that it was not in dispute there

that "the State may require that a union serve as [the] exclusive

bargaining agent for its employees -- itself a significant

impingement on associational freedoms that would not be tolerated

in other contexts."

(emphasis added).

Peltz-Steele contends that these statements in Janus

reveal the limited reach of the Supreme Court's previous statement

in Knight that exclusive representation "in no way restrained [the

- 14 - plaintiff's] . . . freedom to associate or not to associate."

. Knight's holding, he asserts, was limited to whether

public sector employees have a First Amendment right to compel the

government to negotiate with them "instead of, or in addition to,

the union." And thus, given the passages in Janus to which he

points, he further contends that Knight cannot be read to cast any

doubt on his First Amendment claim, insofar as that claim rests on

an infringement of his right to be free from compelled speech and

association. He then argues from this premise that, because we

relied on Knight in D'Agostino, and in turn relied on D'Agostino

in Reisman, to reject a claim that public sector exclusive

bargaining compels nonunion members' speech and nonunion members'

association with the union in violation of the First Amendment,

Janus is best read to reveal that neither D'Agostino nor Reisman

provides a basis for rejecting his First Amendment claim here.

We may assume for the sake of argument that Peltz-Steele

is right both in his characterization of what Knight holds and in

his contention that Reisman does not bar us from considering the

additional arguments regarding the import of Janus that he now

advances on appeal. And that is so because we do not find those

arguments to provide any basis for finding merit in his contention

that his First Amendment rights have been infringed by the

designation pursuant to Chapter 150E of the Union as the exclusive

- 15 - bargaining representative for "all employees" within his

bargaining unit.

The first statement in Janus that Peltz-Steele points to

-- that exclusive representation is "itself a significant

impingement on associational freedoms that would not be tolerated

in other contexts" -- came as the Court was explaining that it

"readily acknowledge[s]" that government employers are afforded

"greater . . . power to regulate [the] speech" of employees than

the "citizenry in general," Janus,

-78 (quoting

Pickering v. Bd. of Ed.,

(1968)), but that it

was "draw[ing] the line at allowing the government to go further

still and require all employees to support the union irrespective

of whether they share its views,"

(emphases added); see also

id. at 2471-73, 78 (describing the "Pickering line of cases" as

less applicable where government employees are compelled to

"subsidize" speech). Thus, far from representing a rejection of

Knight's reasoning, let alone the reasoning we relied on in

D'Agostino and Reisman, this passage from Janus identifies

exclusive bargaining in the public sector as something no party in

the case challenged -- while also acknowledging the

uncontroversial point that a system in which the government

designates a single entity to represent the interests of a group

of people might result in an intolerable "impingement on

- 16 - associational freedoms" in "other contexts." See Janus,

(emphasis added).

The other statement from Janus that Peltz-Steele latches

onto -- that exclusive bargaining "substantially restricts the

nonmembers' rights" -- offers him no more support for concluding

that the Court in that case was rejecting any prior conclusion as

to the impact of exclusive representation on associational

freedoms, much less casting doubt on the particular reasoning that

underlies D'Agostino and Reisman -- i.e., that the activities of

a designated bargaining unit's exclusive representative simply

cannot be imputed to nonunion employees by nature of their

representation of the unit. Reisman, 939 F.3d at 414; D'Agostino,

; see also Knight,

(noting that

nonmembers "are free to form whatever advocacy groups they like"

and face "no different . . . pressure to join a majority party

tha[n] persons in the minority always feel"). Rather, that

statement does not even refer specifically to First Amendment

speech or associational rights. See Janus,

. And, even if we assume that by referencing a "restrict[ion]"

on "nonmembers' rights" the Supreme Court really meant

"nonmembers' speech and associational rights," the reference can

only be understood in the sense that we have just discussed in

connection with the other passage of Janus to which Peltz-Steele

points.

- 17 - Our conclusion that Peltz-Steele is overreading the

passages from Janus in question draws further support from another

passage in Janus itself that Peltz-Steele ignores. In explaining

that the union's asserted need to charge nonunion employees agency

fees to cover the costs of representing such employees in grievance

proceedings did not supply a sufficiently compelling state

interest to overcome heightened review, the Court noted that unions

could instead use a "less restrictive" system in which nonmember

employees pay for such services only if they use them -- or simply

deny representation to nonmembers in grievance proceedings

altogether.

. The Court explained in a similar

vein that mandatory agency fees could not "be justified on the

ground that it would otherwise be unfair to require" unions "to

bear the duty of fair representation" because "[t]hat duty is a

necessary concomitant of the authority that a union seeks when it

chooses to serve as the exclusive representative of all the

employees in a unit."

.

These explanations as to why the imposition of mandatory

agency fees on nonunion employees could not withstand heightened

scrutiny would make little sense if the Supreme Court meant

simultaneously to cast into doubt the constitutionality of state

laws that allow a public sector employer to treat a union as an

exclusive bargaining representative for employees within a

designated bargain unit. See Branch,

("Janus

- 18 - and the other Supreme Court cases have thus not questioned the

constitutionality of exclusive representation. The Court has,

however, inextricably coupled exclusive representation with a

union's duty of fair representation."); see also Janus,

n.27 ("States can keep their labor-relations systems

exactly as they are -- only they cannot force nonmembers to

subsidize public-sector unions. In this way, these States can

follow the model of the federal government and 28 other States.").

III.

In ruling as we do, we align ourselves with every Court

of Appeals to have addressed the issue post-Janus. See

Hendrickson v. AFSCME Council 18,

(10th Cir.),

cert. denied,

(2021); Mentele v. Inslee,

(9th Cir.), cert. denied sub nom. Miller v. Inslee,

(2019); Bierman v. Dayton,

(8th Cir. 2018), cert.

denied sub nom. Bierman v. Walz,

(2019); Bennett

v. AFSCME Council 31,

(7th Cir.), cert.

denied,

(2021); Ocol v. Chi. Tchrs. Union,

(7th Cir. 2020), cert. denied,

(2021); Thompson

v. Marietta Educ. Ass’n,

(6th Cir. 2020), cert.

denied,

(2021); Akers v. Md. State Educ. Ass’n,

, 382 n.3 (4th Cir. 2021); Adams v. Teamsters Union

Loc. 429,

(3d Cir. Jan. 20, 2022), cert. denied,

(2022); see also Branch,

. The

- 19 - uniformity of the way in which these courts have resolved similar

First Amendment challenges is hardly surprising, as it well

comports with the "majoritarian principle" underlying the "long

and consistent adherence" to "exclusive representation" under the

federal National Labor Relations Act, which the Supreme Court has

recognized is "tempered" by the recognition and protection of

"minority interests." See Emporium Capwell Co. v. W. Addition

Cmty. Org.,

(1975) ("In establishing a regime

of majority rule, Congress sought to secure to all members of the

unit the benefits of their collective strength and bargaining

power, in full awareness that the superior strength of some

individuals or groups might be subordinated to the interest of the

majority. As a result, 'the complete satisfaction of all who are

represented is hardly to be expected.'" (footnote, internal

alteration, and internal citations omitted) (quoting Ford Motor

Co. v. Huffman,

(1953))).

IV.

The judgment of the District Court is affirmed.

- 20 -