23-384 Goldstein v. Professional Staff Congress/CUNY

United States Court of Appeals For the Second Circuit

August Term 2023

Argued: November 20, 2023 Decided: March 18, 2024

No. 23-384

AVRAHAM GOLDSTEIN, MICHAEL GOLDSTEIN, FRIMETTE KASS-SHRAIBMAN, MITCHELL LANGBERT, JEFFREY LAX, MARIA PAGANO,

Plaintiffs-Appellants,

v.

PROFESSIONAL STAFF CONGRESS/CUNY, CITY UNIVERSITY OF NEW YORK, JOHN WIRENIUS, IN HIS OFFICIAL CAPACITY AS CHAIRPERSON OF THE NEW YORK PUBLIC EMPLOYEE RELATIONS BOARD, ROSEMARY A. TOWNLEY, IN HER OFFICIAL CAPACITY AS MEMBER OF THE NEW YORK PUBLIC EMPLOYEE RELATIONS BOARD, ANTHONY ZUMBOLO, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE NEW YORK PUBLIC EMPLOYEE RELATIONS BOARD, CITY OF NEW YORK, THOMAS P. DINAPOLI, IN HIS OFFICIAL CAPACITY AS NEW YORK STATE COMPTROLLER,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of New York No. 22-cv-321, Paul A. Engelmayer, Judge. Before: KEARSE, CALABRESI, and NATHAN, Circuit Judges.

Plaintiffs are six full-time professors employed by Defendant the City University of New York and exclusively represented by Defendant Professional Staff Congress/CUNY (PSC) for collective bargaining purposes. Their complaint alleges that New York’s Public Employees’ Fair Employment Act (the Taylor Law) violates Plaintiffs’ First Amendment rights to free speech and association because it requires them to belong to a bargaining unit exclusively represented by PSC. They also challenge Section 209-a.2(c) of the Taylor Law, which allows PSC to decline to represent non-union employees in certain proceedings. Defendants filed motions to dismiss these claims, which the United States District Court for the Southern District of New York (Engelmayer, J.) granted. Plaintiffs appeal the district court’s dismissal of their First Amendment claims. We agree with the district court that Plaintiffs’ claims are foreclosed by the Supreme Court’s decision in Minnesota State Board for Community Colleges v. Knight,

(1984). We also agree with the district court that Plaintiffs have failed to allege that Section 209-a.2(c) of the Taylor Law violates the First Amendment. Accordingly, we AFFIRM the judgment of the district court. ________

NATHAN J. MCGRATH, Danielle Susanj, The Fairness Center, Harrisburg, PA (Milton L. Chappell, William L. Messenger, Glenn M. Taubman, National Right to Work Legal Defense Foundation, Inc., Springfield, VA, on the brief) for Plaintiffs-Appellants.

CLELAND B. WELTON, II (Barbara D. Underwood, Ester Murdukhayeva, on the brief) for Letitia James, Attorney General, State of New York, New York, NY, for Defendants-Appellees City University of New York, John Wirenius, Rosemary A. Townley, Anthony Zumbolo, and Thomas P. DiNapoli.

2 SCOTT A. KRONLAND, Matthew J. Murray, Altschuler Berzon LLP, San Francisco, CA (Hanan B. Kolko, Cohen Weiss and Simon LLP, New York, NY, on the brief) for Defendant-Appellee Professional Staff Congress/CUNY. ________

PER CURIAM:

BACKGROUND

New York’s Public Employees’ Fair Employment Act,

, et seq., commonly referred to as the Taylor Law, authorizes public

employees to bargain collectively with their employer. Under the Taylor Law,

public employees are separated into distinct bargaining units composed of

employees who share “a community of interest.”

§ 207. A union may then be

certified as the exclusive representative for a bargaining unit. Id. § 204. Once

designated as the exclusive representative, the union is given broad authority to

act on behalf of the bargaining unit. Only the exclusive representative may

negotiate with the employer over “the terms and conditions of employment” of all

employees in the bargaining unit. Id. § 204.2. Indeed, the employer is “required

3 to negotiate collectively” with the exclusive representative and is prohibited from

bargaining with anyone else. See id.

Plaintiffs-Appellants Avraham Goldstein, Michael Goldstein, Frimette

Kass-Shraibman, Mitchell Langbert, Jeffrey Lax, and Maria Pagano are six full-

time professors employed by Defendant-Appellee the City University of New

York (CUNY). Each belongs to the same bargaining unit composed of over 30,000

full-time and part-time faculty and staff of CUNY and the CUNY Research

Foundation. Since 1972, this bargaining unit has been exclusively represented by

Defendant-Appellee Professional Staff Congress/CUNY (PSC) for collective

bargaining purposes.

PSC engages in political advocacy on issues related to Israel and Palestine

with which Plaintiffs “vehemently disagree.” App’x 37. Five of the six Plaintiffs,

who identify as Jewish and Zionists, resigned their membership from PSC in 2021

in response to what they describe as PSC’s “anti-Semitic and anti-Israel statements,

actions, and positions.” App’x 29. The sixth Plaintiff, Pagano, resigned around

2010 after PSC allegedly interfered with and refused to represent her in a grievance

4 proceeding with CUNY. While all Plaintiffs have resigned from union

membership in PSC, each remains part of the bargaining unit represented by PSC.

PSC and CUNY have entered into various agreements that control the terms and

conditions of Plaintiffs’ employment.

Plaintiffs not only oppose PSC’s political positions but also disagree with

how PSC negotiates their employment terms and conditions. As full-time faculty,

Plaintiffs allege that PSC prioritizes the economic and employment interests of

part-time adjunct professors and other groups over their own.

Plaintiffs also take issue with Section 209-a.2(c) of the Taylor Law, which

limits PSC’s duty of fair representation “to the negotiation or enforcement of the

terms of an agreement with [their] public employer” and excludes any obligation

to represent non-union members in grievance proceedings, disciplinary matters,

or other interactions with CUNY.

-a.2(c). As non-union

members who have expressed vocal opposition to PSC’s political views, Plaintiffs

believe that PSC will not fairly represent them in these proceedings.

5 In 2022, Plaintiffs filed suit against PSC, CUNY, the City of New York, and

affiliated individuals 1 in their official capacities (collectively, Defendants).

Plaintiffs allege that their First Amendment rights to freedom of association are

violated by the Taylor Law in two respects. First, it unconstitutionally compels

them to associate with PSC and second, it unconstitutionally compels them to

associate with the other CUNY instructional staff in their bargaining unit.

Plaintiffs also assert that their free speech rights are violated because the Taylor

Law authorizes PSC to speak and contract for them. 2

Defendants filed motions to dismiss. In a thorough and well-reasoned

decision, the district court granted the motions to dismiss, concluding that these

claims were “necessarily foreclosed” by the Supreme Court’s decision in Minnesota

State Board for Community Colleges v. Knight,

(1984), which remains

binding law after Janus v. AFSCME,

(2018). Goldstein v. Pro. Staff

1The individual Defendants sued in their official capacities are Chairperson of the New York Public Employee Relations Board (PERB) John Wirenius, PERB members Rosemary A. Townley and Anthony Zumbolo, and New York State Comptroller Thomas P. DiNapoli. 2Three of the Plaintiffs also alleged an additional claim that PSC violated their First Amendment rights by continuing to deduct union dues from their wages after they resigned. The parties settled this claim, so it is not before us on appeal.

6 Cong./CUNY,

, 443 (S.D.N.Y. 2022). The district court also

explained that even if Knight did not foreclose these claims, the complaint

nonetheless failed to state a claim that Plaintiffs’ First Amendment free speech or

associational rights were violated. The district court also rejected Plaintiffs’

challenge to Section 209-a.2(c) of the Taylor Law, which limits the duty of fair

representation owed by an exclusive representative to its non-union members.

DISCUSSION

“We review a district court’s grant of a motion to dismiss de novo, accepting

as true all factual claims in the complaint and drawing all reasonable inferences in

the plaintiff’s favor.” Henry v. Cnty. of Nassau,

(2d Cir. 2021)

(quotation marks omitted).

We conclude that PSC’s exclusive representation of Plaintiffs in collective

bargaining with CUNY does not violate the First Amendment. In reaching our

conclusion, we join each of our sister circuits to have addressed this issue since the

7 Supreme Court’s decision in Janus. 3 We also reject Plaintiffs’ challenge against

Section 209-a.2(c) of the Taylor Law, which limits the duty of an exclusive

representative to represent non-union employees in certain proceedings.

I. PSC as the Exclusive Representative

The Supreme Court’s decision in Knight forecloses Plaintiffs’ claims

challenging PSC as their exclusive representative. In Knight, community college

professors challenged two provisions of a Minnesota law requiring the state to (1)

“meet and negotiate” with the plaintiffs’ exclusive representative over

employment terms and conditions, and (2) “meet and confer” with the exclusive

representative on policy questions outside the scope of mandatory bargaining. 465

U.S. at 274–75. Under the law, “the employer may neither ‘meet and negotiate’

3See e.g., Peltz-Steele v. UMass Faculty Fed’n,

, 4–8 (1st Cir. 2023); Adams v. Teamsters Union Loc. 429, No. 20-1824,

, at *2–3 (3d Cir. Jan. 20, 2022) (unpublished); Uradnik v. Inter Fac. Org.,

, 725–27 (8th Cir. 2021); Hendrickson v. AFSCME Council 18,

, 968–70 (10th Cir. 2021), cert. denied,

(2021); Bennett v. Council 31 of the AFSCME,

, 733–35 (7th Cir. 2021), cert. denied,

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

, 382–83 n.3 (4th Cir. 2021); Ocol v. Chicago Tchrs. Union,

, 532–33 (7th Cir. 2020), cert. denied,

(2021); Thompson v. Marietta Educ. Ass’n,

, 813–14 (6th Cir. 2020), cert. denied,

(2021); Mentele v. Inslee,

, 786–91 (9th Cir. 2019), cert. denied,

(2019).

8 nor ‘meet and confer’ with any members of that bargaining unit except through

their exclusive representative.” Id. at 275.

The Supreme Court summarily upheld the validity of the “meet and

negotiate” provision, Knight v. Minnesota Cmty. Coll. Fac. Ass'n,

(1983), and issued a separate opinion concluding that the “meet and confer”

provision was also constitutional, Knight,

. The Court held that

excluding non-union members from “meet and confer” sessions did not violate

their First Amendment rights because public employees do not have a

“constitutional right to force the government to listen to their views.”

.

Plaintiffs argue that Knight does not foreclose their claims because their

complaint seeks only to prevent PSC from speaking on their behalf; it does not

seek any right to attend meetings between PSC and CUNY. That reading of Knight

is far too narrow. In Knight, the Court explained that excluding non-union

members from “meet and confer” sessions to discuss policy questions separate

from collective bargaining “in no way restrained [the employees’] freedom to

speak on any education-related issue or their freedom to associate or not to

9 associate with whom they please, including the exclusive representative.”

. The employees’ “associational freedom ha[d] not been impaired” because

they remained “free to form whatever advocacy groups they like[d]” and were

“not required to become members” of the union.

. Moreover, while the

union’s “unique status” as the exclusive representative “amplifie[d] its voice in the

policymaking process,” the Court explained that “[a] person’s right to speak is not

infringed when government simply ignores that person while listening to others.”

. Therefore, restricting attendance at these meetings to the exclusive

representative violated neither the plaintiffs’ free speech nor associational rights.

at 288–90.

For the same reasons, the exclusive collective bargaining regime that

Plaintiffs are subject to under the Taylor Law poses no First Amendment problem.

Designating PSC as Plaintiffs’ exclusive bargaining representative does not

impermissibly burden Plaintiffs’ ability to speak with, associate with, or not

associate with whom they please, including CUNY and PSC. Plaintiffs are free to

resign their membership from the union or to engage in public dissent against

10 PSC’s views. The prudential pressure that Plaintiffs may reasonably feel to join

the union—despite their deep objections to its political positions—“is no different

from the pressure to join a majority party that persons in the minority always feel”

and thus “does not create an unconstitutional inhibition on associational

freedom.” See

.

Any legal authority that PSC has to negotiate on behalf of Plaintiffs is

restricted to the narrow scope of collective bargaining with CUNY. This means

only that Plaintiffs may not themselves directly bargain with or select their own

representative to bargain with CUNY over their employment terms. However, the

First Amendment does not guarantee public employees the right to engage in

collective bargaining with their employer. See

(“[Public employees] have

no constitutional right to force the government to listen to their views.”).

Despite Plaintiffs’ contentions, reading Knight to foreclose Plaintiffs’ claims

does not contravene the Supreme Court’s more recent decision in Janus, which

held that the First Amendment prohibits a public-sector union from assessing

mandatory “agency fees” against non-union members of the collective bargaining

11 unit. 585 U.S. at 929–30. Janus invalidated these mandatory agency fees because

the First Amendment prohibits “[c]ompelling a person to subsidize the speech of

other private speakers.” Id. at 893. But that holding does not undermine the

constitutionality of exclusive representation by public-sector unions that do not

assess mandatory agency fees. To the contrary, as we recognized in a recent

opinion, “Janus invalidated the collection of agency fees from non-union members

but left intact labor-relations systems exactly as they are.” Wheatley v. New York

State United Tchrs.,

(2d Cir. 2023) (quotation marks omitted); see

also Janus, 585 U.S. at 904–05 n.7 (“[W]e are not in any way questioning the

foundations of modern labor law.”).

Accordingly, we conclude that Plaintiffs’ First Amendment challenges

against the designation of PSC as their exclusive bargaining representative are

directly foreclosed by Knight.

II. Section 209-a.2(c) of the Taylor Law

We also reject Plaintiffs’ contention that Section 209-a.2(c) of the Taylor Law,

which limits the fiduciary duty that an exclusive representative owes to non-union

12 members in its bargaining unit, “exacerbate[s]" and “compound[s]” their First

Amendment injuries. Appellant’s Br. at 22–24.

Section 209-a.2(c) of the Taylor Law relieves an exclusive representative of

any obligation to represent its non-union employees in any “grievance, arbitration

or other contractual process concerning the evaluation or discipline of a public

employee” where the employee may select their own representative.

-a.2(c). Under the duty of fair representation, an exclusive

representative must fairly represent all employees, including those who are not

union members, when bargaining on their behalf. See Steele v. Louisville & N.R. Co.,

(1944). This “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,” Janus,

, because employees in the unit have

no choice but to be represented by the exclusive representative in negotiating their

employment terms. Courts have not, however, suggested that the duty of fair

representation extends beyond collective bargaining—to proceedings where

employees are free to select their own representatives.

13 To the contrary, the Supreme Court has invited the precise approach to

exclusive representation adopted by New York’s Taylor Law. In invalidating

mandatory agency fees, Janus rejected an argument that employees who have

resigned from union membership should still be required to pay agency fees

because the union still represents them in disciplinary proceedings. See

at 900–

01. The Court reasoned that unions can “eliminate[]” this “unwanted burden” by

simply denying non-union members representation in these proceedings

altogether. See

We therefore disagree with Plaintiffs that the limited fiduciary duty

imposed by Section 209-a.2(c) of the Taylor Law burdens their First Amendment

rights.

CONCLUSION

For the reasons stated above, the judgment of the United States District

Court for the Southern District of New York is AFFIRMED.

14