Amicus Curiae Brief — Jonathan Reisman, Petitioner v. Associated Faculties of the University of Maine, et al.

No. 19-847

IN THE

Supreme Court of the United States

JONATHAN REISMAN,

Petitioner,

v.

ASSOCIATED FACULTIES OF THE UNIVERSITY

OF MAINE, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF AMICUS CURIAE THE

COMPETITIVE ENTERPRISE INSTITUTE IN

SUPPORT OF PETITIONER

Sam Kazman

Counsel of Record

Devin Watkins

COMPETITIVE ENTERPRISE

INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

sam.kazman@cei.org

February 4, 2020

Attorneys for Amicus Curiae

i

QUESTION PRESENTED

Whether it violates the First Amendment to

designate a labor union to represent and speak for

public sector employees who object to its advocacy on

their behalf.

ii

TABLE OF CONTENTS

Question Presented....................................................... i

Table of Contents ......................................................... ii

Table of Cited Authorities .......................................... iii

Interest of Amicus Curiae ........................................... 1

Summary of Argument ................................................ 1

Argument ..................................................................... 3

I. Most Public Employees Are Forced To Be

Represented By Organizations They Did Not Vote

For ........................................................................... 5

II. Exclusive Representation Allows Government to

Compel Support for Political and Ideological

Advocacy ................................................................. 8

Conclusion .................................................................. 13

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Harris v. Quinn 134 S. Ct. 2618, 2632 (2014). ........... 8

Janus v. AFSCME, 138 S. Ct. 2448 (2018). ...... passim

Wooley v. Maynard, 430 U. S. 705 (1977) ............... 3, 4

Statutes

Me. Stat. tit. 26, § 1025(1). ...................................... 2, 5

Me. Stat. tit. 26, § 1025(2)(E) ........................ 2, 3, 5, 13

Other Authorities

AFSCME, Adopt Single Payer, (July 16-18, 2018),

https://goo.gl/9wrsNp. ............................................ 11

AFSCME, AFSCME Rejects Immigration Policy

Based on Fear (July 16-18, 2018), goo.gl/KM4ubj. 12

AFSCME, Preserving Exclusive Representation (July

16-18, 2018), https://goo.gl/7hsnMj ........................ 12

AFSCME, Repeal Harmful Tax Cuts for the Wealthy

and Big Corporations (July 16-18, 2018),

https://goo.gl/9cx9sN. ............................................. 12

AFSCME, Saluting and Supporting the Role and the

Leadership of Women and Youth in Building the

Movement Against Donald Trump and His Vision

for America, (July 16-18, 2018),

http://goo.gl/P6JfVJ. ............................................... 11

iv

AFUM, Agreement between University of Maine and

Associated Faculties of the University of Maine,

MEA/NEA (last accessed Jan. 28, 2020),

http://afum.info/wpcontent/uploads/2018/08/AFUM-CBA-2017-20191.pdf .......................................................................... 9

James Sherk, Unelected Unions: Why Workers

Should Be Allowed to Choose Their

Representatives, HERITAGE FOUNDATION (Aug. 27,

2012), http://goo.gl/nxDqaC. .................................... 7

Julia Wolfe and John Schmitt, A profile of union

workers in state and local government, Economic

Policy Institute (June 7, 2018),

https://www.epi.org/publication/a-profile-of-unionworkers-in-state-and-local-government-key-factsabout-the-sector-for-followers-of-janus-v-afscmecouncil-31/. ................................................................ 1

National Education Association, How to Support

Public Education in Maine, (last accessed Jan. 28,

2020)

https://web.archive.org/web/20181128192515/https:

//educationvotes.nea.org/state/maine/ ................... 11

Neill S. Rosenfeld, 50 Years, UNITED FEDERATION OF

TEACHERS (2010)

http://www.uft.org/files/attachments/uft-50-yearsbook.pdf. ................................................................... 7

University of Maine System, UMS PEOPLESEARCH

(last accessed Dec. 17, 2018),

https://peoplesearch.maine.edu/index.php. ............. 8

1

INTEREST OF AMICUS CURIAE 1

The Competitive Enterprise Institute (“CEI”) is a

nonprofit 501(c)(3) organization incorporated and

headquartered in Washington, D.C., dedicated to

promoting the principles of free markets and limited

government. Since its founding in 1984, CEI has

focused on raising public understanding of the

problems of overregulation. It has done so through

policy analysis, commentary, and litigation.

SUMMARY OF ARGUMENT

In Janus v. AFSCME, this Court recognized the

importance of this issue in its holding that the

certification of an exclusive representative to speak for

public employees “substantially restricts the [First

Amendment] rights of individual employees.” 138 S.

Ct. 2448, 2460 (2018). Currently, 6.8 million state and

local public employees are covered by union contracts.

Julia Wolfe and John Schmitt, A profile of union

workers in state and local government, Economic

Policy Institute (June 7, 2018), https://goo.gl/RQz1qD/.

Of those, about 600,000 are non-members. Their First

Amendment rights are trampled by state laws that

provide for exclusive representation. As it stands,

public employees are now free from subsidizing the

speech of an exclusive representative, but are forced to

associate with unions and let those unions speak for

1 Pursuant to Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part, that no such counsel or

party made a monetary contribution intended to fund the

preparation or submission of the brief, and that no person other

than amicus, its members, or its counsel made such a monetary

contribution. All parties were timely notified and consented to the

filing of this brief.

2

them, no matter how strongly employees disagree with

that speech.

Jonathan Reisman is an employee at the

University of Maine. The University of Maine has an

agreement with a union which under Maine law

provides that the union “represent all the

university…employees within the [bargaining] unit

without regard to membership in the organization.”

Me. Stat. tit. 26, § 1025(2)(E). This means that even if

employees like Reisman do not wish to have the union

represent them, as evidenced by their choice not to join

the union, they are compelled to do so under state law.

Maine goes even further than many states by not

even requiring an election before compelling such

speech from employees like Reisman. Under Maine

law, any “employee organization may file a request” in

which it claims that a majority of employees supports

that organization. Me. Stat. tit. 26, § 1025(1). If it is

accepted by the university or college, no election is

required to compel speech from people like Reisman.

Id (“Such request for recognition shall be granted by

the university, academy or community colleges unless

the university, academy or community colleges desire

that an election determine whether the organization

represents a majority of the members in the

bargaining unit.”). It is from employees like Reisman

that the union should seek consent to represent, not a

third-party like the school.

The issues on which the union’s speech is treated

as the Petitioner’s, against his will, are issues that

Janus recognized as “matters of substantial public

concern.” 138 S. Ct. at 2460. As this Court has decided

repeatedly, freedom of speech “includes both the right

to speak freely and the right to refrain from speaking

3

at all.” Wooley v. Maynard, 430 U. S. 705, 714 (1977).

In Janus the court stated, “Compelling individuals to

mouth support for views they find objectionable

violates that cardinal constitutional command, and in

most contexts, any such effort would be universally

condemned.” 138 S. Ct. at 2463. The state law

compelling the Petitioner to accept the union’s speech

as his own on issues of substantial public concern

infringes on his First Amendment rights.

Equally troublesome, the state compels the

Petitioner to accept the advocacy of an exclusive

representative that he never had a chance to vote on.

For the most part, public employees simply inherit

union representation that was voted on by past

workers, and are forced to accept it without any choice

in the matter.

For these reasons, the Maine statute that

establishes exclusive representation is in conflict with

First Amendment jurisprudence and warrants review

by the Court.

ARGUMENT

Maine state law compels the petitioner, Jonathan

Reisman, to accept the Associated Faculties of the

University of Maine (AFUM) as his personal

representative. Me. Stat. tit. 26, § 1025(2)(E). The

AFUM represents all University of Maine employees,

both those who join the union and those who do not.

Id. The law allows AFUM to speak on behalf of all such

employees in determining work terms and conditions

for employees. At the very least this allows a majority

of employees in a bargaining unit to select an exclusive

representative who speaks for both them and for those

employees who want nothing to do with the union.

4

Without an election, which is not required under

Maine law, it is hard to even tell if a majority actually

wan the union.

As the Supreme Court recognized in Janus v

AFSCME, that requirement is “a significant

impingement on associational freedoms that would not

be tolerated in other contexts.” 138 S. Ct. at 2478.

But, making matters worse, the vast majority of

public employees who are compelled to accept

representation from a union were never even afforded

the opportunity to vote on whether they want any

union at all, let alone the specific union that would

represent them. In the case before the Court, the

AFUM was certified as the exclusive representative for

University of Maine in 1978. Reisman, and almost all

of his colleagues, were not University employees at

that time. As such, many employees represented by

the AFUM have never had a voice or a vote in selecting

the union that represents them today.

Another consequence of this state-law requirement

is that the AFUM represents and speaks on behalf of

Reisman through collective bargaining sessions, meet

and confer sessions, and other venues. This is

permitted even though he opposes many of the union’s

positions during collective bargaining negotiations

and advocacy on political issues. And the AFUM, like

other public-sector unions, frequently advocates for or

against a broad variety of contentious political

matters.

The Supreme Court has consistently held that

freedom of speech “includes both the right to speak

freely and the right to refrain from speaking at all.”

Wooley, 430 U. S. at 714. Under Maine law, public

5

employees must accept the speech of the AFUM as

their own and lack the ability to distance themselves

from the political advocacy of their exclusive

representative.

I. MOST PUBLIC EMPLOYEES ARE FORCED TO

BE REPRESENTED BY ORGANIZATIONS THEY

DID NOT VOTE FOR

Under a majority of state legal regimes governing

public employees, when a public-sector union is

certified as the exclusive representative of a

bargaining unit, it is granted the sole right to

negotiate on the behalf of members and non-members

over terms of employment such as pay, promotion,

layoffs, and retirement.

To become certified as representing all employees,

all that is required is an assertion of that the

organization has the support of a majority of the

employees. Me. Stat. tit. 26, § 1025(1). If that

assertion, with no evidence of actual consent by those

individuals, is accepted by the school administration,

then that organization, under state law, is “to

represent all the university, academy or community

college employees... without regard to membership in

the organization certified as bargaining agent.” Id. §

1025(2)(E). Only if the assertion of majority support is

opposed by the administration is an election required.

Id. § 1025(1).

Upon certification, all public employees are forced

to accept union representation, work under a union

negotiated contract, and accept that the union speaks

on their behalf. Maine law requires Reisman to accept

these conditions despite the fact that he opposes many

of the union’s positions during bargaining negotiations

and its political stances.

6

As it stands, Reisman and other employees who are

similarly dissatisfied with their union representation

are prohibited from seeking representation other than

from the AFUM, and from individually negotiating

their own work terms and conditions with the Maine

universities.

Compounding the problem of compelling unwilling

employees to accept union representation is that very

few public employees represented by a union voted for

this representation or the specific union that

represents them. Once a group of employees is

organized, its union remains certified in perpetuity

unless it is “decertified.” Id. § 1025(2)(C). Decertifying

an exclusive representative is an arduous process.

Maine law erects several hurdles to removing an

exclusive representative. First, for a year after

certification, “no question concerning representation

may be raised.” Id. § 1025(2)(D). Second, for up to three

years after the initial year, “no question concerning

unit or representation may be raised except during the

period not more than 90 nor less than 60 days prior to

the expiration date of the agreement.” Id. § 1026(1)(D).

Instead of voluntarily selecting a specific union

representative, employees are compelled to accept, as

a condition of employment, representation by a union

chosen by past employees.

In the public-sector inherited union representation

is the norm, not the exception. A majority of states

passed laws in the 1960s and 1970s to give government

employees the right to collectively bargain. For the

most part, unions organized public employers shortly

after these laws were passed and there has been

relatively limited organizing activity in that area

since. As a result, most unionized public workforces

7

were organized over 30 years ago. Few of today’s public

employees even worked for the government when

elections were held to certify the labor unions that act

as their exclusive representatives today.

For example, while New York City public school

teachers voted to certify the United Federation of

Teachers (UFT) in 1961, the UFT continues to

represent these teachers to this day. Neill S.

Rosenfeld, 50 Years, UNITED FEDERATION OF

TEACHERS

(2010)

http://www.uft.org/files/attachments/uft-50-yearsbook.pdf. Analysis of U.S. Department of Education

data show that “virtually every teacher who voted in

that election has since retired.” James Sherk,

Unelected Unions: Why Workers Should Be Allowed to

Choose Their Representatives, HERITAGE FOUNDATION

(Aug. 27, 2012), http://goo.gl/nxDqaC.

Several school districts in Kansas are similarly

situated. The Kansas state legislature passed

legislation granting public-sector unions collective

bargaining privileges in 1970. By 1971, a number of

Kansas’ largest school districts had unionized.

Calculations using data from the Schools and Staffing

Survey conducted by the National Center for

Education Statistics show that none of the teachers

who voted to elect the Kansas National Education

Association still are employed at these school districts.

Id.

In the top 10 largest school districts in Florida and

Michigan, only one percent of current teachers were

employed in the year that the union representative

was elected. Id.

8

In the instant case, AFUM was elected and

certified as the exclusive representative in 1978 for

teachers at Maine’s public universities. For this

reason, Reisman, whose employment at the University

of Maine began in August, 2015, never had the

opportunity to vote on whether he desired union

representation or not. Reisman is not alone.

An analysis of the University of Maine’s Faculty

and

Staff

webpage,

https://peoplesearch.maine.edu/index.php, could not

find any professors whose tenure at the University of

Maine began prior to 1978, when the only vote for

certification of this union occurred. University of

Maine System, UMS PEOPLESEARCH (last accessed

Dec.

17,

2018),

https://peoplesearch.maine.edu/index.php.

II. EXCLUSIVE

REPRESENTATION

ALLOWS

GOVERNMENT TO COMPEL SUPPORT FOR

POLITICAL AND IDEOLOGICAL ADVOCACY

As a result of Maine law, public employees at

unionized workplaces are forced to accept the speech

of an exclusive representative as their own. It is

irrelevant whether the employee is a non-member or

strongly opposes the speech of the union; the union’s

advocacy is attributed to and on behalf of these

unwilling employees.

As recognized by the Supreme Court, “In the public

sector, core issues such as wages, pensions, and

benefits are important political issues ….” Harris v.

Quinn 134 S. Ct. 2618, 2632 (2014). But the speech of

an exclusive representative that is assigned to nonmembers goes beyond the important political issues

that arise during collective bargaining negotiations.

9

Technically, the contract with the University of

Maine officially recognizes the “Associated Faculties of

the Universities of Maine / Maine Education

Association / National Education Association” as the

exclusive bargaining agent. AFUM, Agreement

between University of Maine and Associated Faculties

of the University of Maine, MEA/NEA (last accessed

Jan.

28,

2020),

http://afum.info/wpcontent/uploads/2018/08/AFUM-CBA-2017-20191.pdf. While AFUM focuses on a variety of important

public policy issues concerning the faculty (which

Reisman should not be forced to support), it doesn’t

directly focus on political issues at the state and

national levels. Instead, AFUM is part of the larger

Maine Education Association and the National

Education Association, which directly take a variety of

political positions as the exclusive representatives of

Mr. Reisman.

Public-sector unions such as the Maine Education

Association, in their capacities as exclusive

representatives, speak out on a variety of political

matters. Here is how the Maine Education Association

describes its recent political work, which Mr. Reisman

is required to support despite the fact that he objects

to it:

“Because of MEA’s presence, in the last few

years, some of the success include:

•

•

•

Hundreds of Millions more in education

funding

Elimination of the testing mandate tied to

teacher evaluations

Changes to the Rules of Restraint and

Seclusion

to

make

them

manageable/realistic for educators

10

“Why is the MEA involved in politics? Why

should educators worry about who gets

elected? Here are three good answers:

1. Protection of public schools is a

fundamental task of the Association. With

repeated political attacks on our schools at

the state and national level, educators

must defend their programs and MEA has

led the way in proclaiming the success of

Maine schools and defeating attempts to

displace public schools as the cornerstone

of our democracy.

2. Funding for K-12 schools, the University of

Maine, and Technical College Systems is largely

dependent upon the good will of state

legislators. The health and prosperity of your

program, salary, and benefits is directly tied to

votes on school funding. MEA is a strong

proponent for more funding and is often the only

voice for student needs.

3. What you teach and how you do your job is the

result of political decisions. If MEA isn’t

involved, decisions about school curricula,

teaching methodologies, student assessment,

and graduation requirements will be made

without regard for educator interests.”

Maine Education Association, Legislative Lobbying

(last accessed Jan. 28, 2020), https://maineea.org/takeaction/. Another example of the MEA’s political

activities is its endorsement of candidates for Maine

Governor, Senate, and House seats. National

Education Association, How to Support Public

Education in Maine, (last accessed Jan. 28, 2020)

11

https://web.archive.org/web/20181128192515/https://e

ducationvotes.nea.org/state/maine/.

The Maine Education Association and the National

Education Association are not alone in political

advocacy while representing people who do not consent

to that advocacy. For example, the published

proceedings of the American Federation of State,

County, and Municipal Employees (AFSCME) 2018

convention record the advocacy that non-members

were compelled to support via their forced association

with the union:

•

•

•

Advocacy against Donald Trump. The

convention adopted a resolution condemning

“Donald Trump and his vision of America.”

More specifically, the convention resolved that

AFSCME will encourage and support the

“defeat” of Donald Trump and his policies.

AFSCME, Saluting and Supporting the Role

and the Leadership of Women and Youth in

Building the Movement Against Donald Trump

and His Vision for America, (July 16-18, 2018),

http://goo.gl/P6JfVJ.

Advocacy for Single Payer Health Care.

The convention endorsed state and federal

legislation to provide a universal single payer

health care system. AFSCME, Adopt Single

Payer, (July 16-18, 2018), https://goo.gl/9wrsNp.

Advocacy on Tax Policy. Tax funds are the

lifeblood of public-sector unions. Since taxes

fund the government, public-sector unions pay

close attention to tax policy and generally

support policies that raise taxes. For example,

the convention passed a resolution against the

12

•

•

“Tax Cuts and Jobs Act,” which President

Trump signed into law in December 2017. More

specifically, AFSCME vowed to “demand the

U.S. Congress to repeal these harmful tax cuts,

and enact progressive tax laws that close

loopholes for the wealthy and corporations to

ensure they pay their fair share.” AFSCME,

Repeal Harmful Tax Cuts for the Wealthy and

Big

Corporations

(July

16-18,

2018),

https://goo.gl/9cx9sN.

Advocacy for Exclusive Representation.

This resolution explains that “Exclusive

representation means the duly chosen union is

the sole voice for all workers.” AFSCME,

Preserving Exclusive Representation (July 1618, 2018), https://goo.gl/7hsnMj (emphasis

added). The union condemned any legislative

effort to “eliminat[e] exclusive representation.”

Id.

Advocacy for Immigration Policy. The

convention

called

upon

the

“Trump

administration to drop its DACA [Deferred

Action on Childhood Arrivals] appeal in the

courts” and resolved that Congress should pass

a “clean DREAM Act” that creates a “pathway

to citizenship for a generation of young people.”

AFSCME, AFSCME Rejects Immigration Policy

Based

on

Fear

(July

16-18,

2018),

http://goo.gl/KM4ubj.

These kinds of compelled political advocacy

through forced representation are beyond what the

First Amendment allows. As this Court noted in

13

Janus, there can be no justification for a state

requiring a person to “express[] support for a

particular set of positions on controversial public

issues—say, the platform of one of the major political

parties. No one, we trust, would seriously argue that

the First Amendment permits this.” 138 S. Ct. at 2464.

And yet this is exactly what is happening to nonmembers like Reisman.

CONCLUSION

For the foregoing reasons, this Court should grant

this petition to consider whether the exclusive

representative requirements in Me. Stat. tit. 26,

§ 1025(2)(E) violate the First Amendment.

Respectfully submitted,

Sam Kazman

Counsel of Record

Devin Watkins

COMPETITIVE ENTERPRISE

INSTITUTE

1310 L St. NW, 7th Floor

Washington, D.C. 20005

(202) 331-1010

sam.kazman@cei.org

February 4, 2020

Attorneys for Amicus Curiae