Petition for Writ of Certiorari — Avraham Goldstein, et al., Petitioners v. Professional Staff Congress/CUNY, et al.

Supreme Court briefJul 19, 2024

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APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: OPINION, United States Court

of Appeals for the Second Circuit (March 18,

2024) .....................................................................

APPENDIX B: OPINION & ORDER, United

States District Court for the Southern District

of New York (November 30, 2022) ......................

12a

APPENDIX C: FINAL JUDGMENT IN A

CIVIL CASE, United States District Court for

the Southern District of New York (March 14,

2023) .....................................................................

47a

APPENDIX D: ORDER, United States Court of

Appeals for the Second Circuit (April 22, 2024) .

49a

APPENDIX E: CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ...............

51a

U.S. Const. amend. I ......................................

51a

N.Y. Civ. Serv. Law § 204 ..............................

51a

N.Y. Civ. Serv. Law § 209-a ...........................

52a

APPENDIX F: COMPLAINT and Exhibit C,

United States District Court for the Southern

District of New York (January 12, 2022)............

62a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

————

No. 23-384

————

AVRAHAM GOLDSTEIN, MICHAEL GOLDSTEIN,

FRIMETTE KASS-SHRAIBMAN, MITCHELL LANGBERT,

JEFFREY LAX, MARIA PAGANO,

Plaintiffs-Appellants,

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.

————

August Term 2023

Argued: November 20, 2023

Decided: March 18, 2024

————

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, 465 U.S. 271

(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.

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,

N.Y. Civ. Serv. Law §§ 200, 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.” Id. § 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 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 DefendantAppellee 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

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. N.Y. Civ. Serv. Law

§ 209-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.

In 2022, Plaintiffs filed suit against PSC, CUNY, the

City of New York, and affiliated individuals1 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

The 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.

Three 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.

were “necessarily foreclosed” by the Supreme Court’s

decision in Minnesota State Board for Community

Colleges v. Knight, 465 U.S. 271 (1984), which remains

binding law after Janus v. AFSCME, 585 U.S. 878

(2018). Goldstein v. Pro. Staff Cong./CUNY, 643 F.

Supp. 3d 431, 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,

6 F.4th 324, 328 (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 Supreme Court’s decision in Janus.3

See e.g., Peltz-Steele v. UMass Faculty Fed’n, 60 F.4th 1, 4–8

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

2022 WL 186045, at *2–3 (3d Cir. Jan. 20, 2022) (unpublished);

Uradnik v. Inter Fac. Org., 2 F.4th 722, 725–27 (8th Cir. 2021);

Hendrickson v. AFSCME Council 18, 992 F.3d 950, 968–70 (10th

Cir. 2021), cert. denied, 142 S. Ct. 423 (2021); Bennett v. Council

31 of the AFSCME, 991 F.3d 724, 727, 733–35 (7th Cir. 2021), cert.

denied, 142 S. Ct. 423 (2021); Akers v. Maryland State Educ. Ass’n,

990 F.3d 375, 382–83 n.3 (4th Cir. 2021); Ocol v. Chicago Tchrs.

Union, 982 F.3d 529, 532–33 (7th Cir. 2020), cert. denied, 142

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’

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, 460 U.S. 1048 (1983), and issued

a separate opinion concluding that the “meet and

confer” provision was also constitutional, Knight, 465

U.S. at 273. 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.” Id. at 283.

Plaintiffs argue that Knight does not foreclose their

claims because their complaint seeks only to prevent

S. Ct. 423 (2021); Thompson v. Marietta Educ. Ass’n, 972 F.3d 809,

813–14 (6th Cir. 2020), cert. denied, 141 S. Ct. 2721 (2021);

Mentele v. Inslee, 916 F.3d 783, 786–91 (9th Cir. 2019), cert. denied,

140 S. Ct. 114 (2019).

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 associate with whom they please, including

the exclusive representative.” Id. at 288. 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. Id. at 289. 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.” Id. at 288. Therefore,

restricting attendance at these meetings to the exclusive

representative violated neither the plaintiffs’ free

speech nor associational rights. Id. 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 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

id. at 290.

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 id. at 283 (“[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 publicsector union from assessing mandatory “agency fees”

against non-union members of the collective bargaining

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.,

80 F.4th 386, 388 (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.”).

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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 nonunion 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. N.Y. Civ. Serv.

Law § 209-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., 323 U.S. 192, 201 (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,

585 U.S. at 901, 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.

To the contrary, the Supreme Court has invited the

precise approach to exclusive representation adopted

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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

id. 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 id.

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.

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APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

————

22 Civ. 321 (PAE)

————

AVRAHAM GOLDSTEIN et al.,

-v-

Plaintiffs,

PROFESSIONAL STAFF CONGRESS/CUNY et al.,

Defendants.

————

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

This case involves First Amendment challenges by

professors at a public university to their compulsory

inclusion in a bargaining group and consequent

representation by a union whose political advocacy the

professors claim to abhor. The six plaintiffs are faculty

members (the “professors”) employed by the City

University of New York (“CUNY”). For purposes of

collective bargaining, the professors are exclusively

represented by the Professional Staff Congress/CUNY

(the “PSC”). The professors, however, have denounced

the PSC’s political advocacy, particularly on issues

relating to Israel and Palestine, and have resigned

from the PSC. In this lawsuit against the PSC, CUNY,

the City of New York (the “City”), and affiliated

individuals, the professors claim that New York state

law governing public sector unions violates their First

Amendment speech and associational rights insofar as

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it compels them to be represented in collective bargaining

by the PSC. Relatedly, they challenge a 2019 amendment

to state law, which allows the PSC to forego representing non-members in individualized proceedings, such

as investigations, grievances, and disciplinary hearings.

Pending now are motions to dismiss from the PSC,

CUNY, and individual defendants Thomas DiNapoli,

John Wirenius, Rosemary A. Townley, and Anthony

Zumbolo. 1 These take aim at all three counts in the

Complaint: Count One, which challenges the professors’

compelled association with the PSC; Count Two, which

challenges the professors’ compelled association with

other faculty and staff in the same bargaining unit;

and Count Three, which challenges certain plaintiffs’

compelled financial support of the PSC through wage

deductions that allegedly continued to be made after

their resignations from the PSC. The motions addressed

to Counts One and Two are brought under Federal

Rule of Civil Procedure 12(b)(6); those addressed to

Count Three are brought under Rule 12(b)(1).

For the following reasons, the Court grants the

motions to dismiss Counts One and Two, and denies

the motion to dismiss Count Three as moot, on account

of concessions by the parties and one plaintiff’s

acceptance of an offer of judgment that together have

significantly narrowed the scope of that Count.

The City also moved to dismiss, Dkt. 59, but as all agreed at

argument, the City is not a named defendant as to Counts One

and Two, see Dkt. 82 (“Tr.”) at 10-11, and a plaintiff ’s acceptance

of an offer of judgment and concessions by the parties have

mooted the claims for relief from the City as to Count Three. See

infra Section IV.

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I. Background

A. Factual Background 2

1. New York’s System of

Representation and the PSC

Exclusive

New York State’s Public Employees’ Fair Employment

Act, N.Y. Civ. Serv. Law §§ 200, et seq. (the “Taylor

Law”), puts in place an exclusive representation model

of collective bargaining. Under the Taylor Law, the

Public Employee Relations Board (“PERB”) separates

public employees into distinct “bargaining units” 3 for

the purpose of collective bargaining. See id. § 207. A

bargaining unit comprises a group of public employees

that share “a community of interest” with respect to

the terms and conditions of their employment. Id.

§ 207.1(a). A bargaining unit (or units) is then

represented by a union after the union’s certification

or recognition by the state. See id. § 204.2. That

union, under the Taylor Law, then has exclusive legal

This account is based upon the Complaint, Dkt. 1 (“Compl.),

and the exhibits incorporated therein. See DiFolco v. MSNBC

Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (“In considering a

motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the

complaint, documents attached to the complaint as exhibits, and

documents incorporated by reference in the complaint.”).

For the purpose of resolving the motion to dismiss under Rule

12(b)(6), the Court presumes all well-pled facts to be true and

draws all reasonable inferences in favor of plaintiff. See Koch v.

Christie’s Intl PLC, 699 F.3d 141, 145 (2d Cir. 2012); Nat. Res. Def.

Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006).

The Taylor Law uses the terms “bargaining unit” and “negotiating unit” interchangeably. See, e.g., N.Y. Civ. Serv. Law

§§ 208.1(d) (referring to “bargaining unit”), 204,2 (referring to

“negotiating unit”). For the balance of this Opinion and Order, the

Court adopts the term “bargaining unit.”

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authority to speak for all employees in its bargaining

unit or units. See id. § 204.

On June 16, 1972, PERB certified the PSC—a union—

to represent a bargaining unit containing approximately

30,000 members of CUNY’s instructional staff. See

Compl. ¶¶ 57, 60. The PSC and CUNY have entered

into a Collective Bargaining Agreement (“CBA”) and

Memorandum of Agreement (“MOA”) that, along with

other agreements, today control many terms and conditions of the employment of the covered instructors.

Id. ¶ 24; see also id., Exs. A (CBA), B (MOA).

The bargaining unit today includes the six plaintiffs:

Avraham Goldstein (“Goldstein”), Michael Goldstein,

Frimette Kass-Shraibman, Mitchell Langbert, Jeffrey

Lax, and Maria Pagano. See id. ¶¶ 58, 60. Each has

resigned from the PSC. See id. ¶¶ 10-15, 47. Under a

2019 amendment to the Taylor Law, the union owes

them, as non-members whom it represents in collective

bargaining, a duty of fair representation “limited to

the negotiation or enforcement of the terms of an

agreement with [their] public employer.” N.Y. Civ. Serv.

Law § 209-a.2(c). However, the PSC is not required to

provide representation to non-union members of the

bargaining unit, in circumstances involving “questioning

by the employer,” id. § 209-a.2(c)(i), “in statutory or

administrative proceedings or to enforce statutory or

regulatory rights,” id. § 209-a.2(c)(ii), or “in any stage

of a grievance, arbitration or other contractual process

concerning the evaluation or discipline of a public

employee where the non-member is permitted to proceed

without the employee organization and be represented

by his or her own advocate,” id. § 209-a.2(c)(iii). Further,

a union is permitted to “provid[e] legal, economic or

job-related services or benefits beyond those provided

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in the agreement with a public employer only to its

members.” Id. § 209-a.2.

B. The CUNY Professors’ Relationship with—

and Opposition to—the PSC

The six plaintiffs are full-time instructional staff

employed by CUNY. Compl. ¶ 1. The details of their

employment vary—some are tenured professors, others

are adjunct lecturers, and they teach across several

CUNY schools, in subjects including accounting, math,

and business. Id. ¶¶ 10-15. Each, however, is included

in the instructional staff bargaining unit that the PSC

exclusively represents. See id. ¶ 23.

For two reasons, plaintiffs seek to shed the PSC as

their representative in collective bargaining.

First, plaintiffs, all but one of whom identify as

Jewish, id. ¶ 3, “abhor” the PSC’s political advocacy, id.

¶ 2, and stated positions on Israel and international

affairs, id. ¶¶ 3, 27-35. In June 2021, after the PSC

adopted a “Resolution in Support of the Palestinian

People,” see id. ¶ 3; see also id., Ex. C. (the

“Resolution”), the five Jewish plaintiffs resigned, see

id. ¶ 36, based on what they termed the PSC’s “antiSemitic, anti-Jewish, and anti-Israel” pronouncements,

id. ¶ 3. The PSC’s political advocacy, they stated,

“harms the Jewish plaintiffs and singles them out for

opprobrium, hatred, and harassment based on their

religious, ethnic, and/or moral beliefs and identity.” Id.

Relatedly, plaintiffs state, since the adoption of the

Resolution, PSC members “have held chapter-level

discussions, as required by the Resolution,” id. ¶ 41,

on the subjects discussed in the Resolution; these

meetings, plaintiffs state, have fomented anti-Jewish

sentiment among other members of the union, id.

Plaintiffs oppose the PSC’s use of members’ dues,

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including to support financially the Working Families

Party and the Occupy Wall Street movement. Id. ¶ 45;

see id. ¶ 30.

Second, plaintiffs state that the PSC’s representation of them in negotiating employment terms and

conditions has been low quality, causing them to lose

confidence in the union. Id. ¶ 27, 46. The PSC, they

state, has prioritized the economic and employment

interests of part-time adjunct professors over those of

full-time CUNY faculty and staff. Id. ¶ 46; see id.

¶¶ 28-33. Plaintiffs also fault the PSC for treating

them, as non-members, less favorably than PSC members

of the bargaining unit, based on a recent Taylor Law

amendment allowing unions to decline to represent

non-members of the bargaining unit in individualized

proceedings, such as investigations, grievances, and

disciplinary hearings. Id. ¶¶ 53-56.

As of September 17, 2021, all six plaintiffs had

resigned from the PSC. See id. ¶¶ 10-15. Nonetheless,

plaintiffs claim, the City and DiNapoli continued

to deduct dues for three plaintiffs following their

resignations—Goldstein, id. ¶ 75, Kass-Shraibman, id.

¶ 76, and Langbert, id.—to transmit to the PSC.

C. Procedural History

On January 12, 2022, plaintiffs filed a Complaint

against the PSC, CUNY, the City, and four individuals

in their official capacities: Wirenius, PERB’s chairperson;

Townley and Zumbolo, each a PERB member; and

DiNapoli, the New York State Comptroller. See generally

Compl. The Complaint brought First Amendment claims

against the PSC, CUNY, and all individual defendants

except DiNapoli; and claims of improper post-resignation dues deductions against the PSC, the City, and

DiNapoli. On all counts, plaintiffs seek declaratory,

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injunctive, and monetary relief, plus attorneys’ fees

and costs. On March 9, 2022, the Court held an initial

conference and granted a joint request to stay discovery

pending resolution of the anticipated motions to dismiss. Dkt. 47.

On April 20, 2022, the Court received motions to

dismiss and supporting memoranda from: (1) CUNY,

DiNapoli, Townley, Wirenius, and Zumbolo (the “State

Defendants”), Dkt. 55 (“State MTD”); (2) the PSC, Dkt.

58 (“PSC MTD”); and (3) the City, Dkt. 60. On May 24,

2022, plaintiffs filed a combined memorandum opposing

these motions. Dkt. 64 (“Pl. Response MTD”). On June

14, 2022, the State Defendants and the PSC each filed

a reply in support of dismissal, Dkts. 66, 68 (“PSC

Reply MTD”). The City did not file a reply, but later

filed a notice that Goldstein had accepted an offer

of judgment under Federal Rule of Civil Procedure 68

as to his claims against the City of improper wage

deductions. Dkts. 67, 77 (as refiled).

On September 28, 2022, the Court scheduled argument

on Counts One and Two, and ordered the parties to file

a joint letter as to Count Three’s surviving scope. Dkt.

70. On October 7, 2022, the parties filed that letter.

Dkt. 72. On October 26, 2022, the Court held argument

on Counts One and Two. On November 2, 2022, the

City filed a proposed judgment as to Goldstein’s Count

Three claim, Dkt. 77, which the Court entered the

following day, Dkt. 78.

On November 11, 2022, the parties filed another

joint letter apprising the Court of the status of Count

Three. Dkt. 80. On November 17, 2022, Goldstein

moved for attorneys’ fees and costs pursuant to

42 U.S.C. § 1988. Dkt. 84.

19a

II. Legal Standards Governing Motions to Dismiss

Under Rule 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6),

a complaint must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim is facially

plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint

is properly dismissed where, as a matter of law, “the

allegations in a complaint, however true, could not

raise a claim of entitlement to relief.” Twombly, 550

U.S. at 558. When resolving a motion to dismiss, the

Court must assume all well-pled facts to be true,

“drawing all reasonable inferences in favor of the

plaintiff.” Koch, 699 F.3d at 145; see also A.I. Trade

Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.

1993) (“[All allegations are construed in the light most

favorable to the plaintiff and doubts are resolved in the

plaintiff’s favor, notwithstanding a controverting presentation by the moving party.”). That tenet, however, does

not apply to legal conclusions. See Iqbal, 556 U.S. at

678. Pleadings that offer only “labels and conclusions”

or “a formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555.

III. Analysis of Plaintiffs’ First Amendment Claims

(Counts One and Two)

Counts One and Two bring closely related claims.

Each challenges the Taylor Law’s requirement that the

professors be represented in collective negotiations

over employment terms and conditions by the PSC, as

the exclusive representative of the professors’ bargaining

unit. The professors contend that this infringes their

First Amendment speech and associational rights by

20a

compelling them to associate with the PSC (Count

One) and the bargaining unit’s other instructional

staff (Count Two).

In moving to dismiss, defendants contend that

settled precedent—Minnesota State Board for Community

Colleges v. Knight, 465 U.S. 271 (1984) (“Knight”), and

its progeny—disposes of these claims. Plaintiffs dispute

that. And, plaintiffs argue, even if Knight foreclosed

their claims, the decision in Janus v. AFSCME, Council

31, 138 S. Ct. 2448 (2018), compels a reassessment of

Knight. The Court reviews these arguments and then

addresses, in light of these decisions, plaintiffs’ various

theories of a First Amendment injury.

A. The Pertinent Holding in Knight

At issue in Knight was a Minnesota statute that, to

establish “orderly and constructive relationships” between

public employers and their employees, authorized public

employees to bargain collectively over the terms and

conditions of employment. Knight, 465 U.S. at 273

(quoting Minn. Stat. § 179.61 (1982) (internal quotation

marks omitted)). It provided for the division of employees

into appropriate bargaining units. See id. at 273-74. It

also established a procedure, based on majority support

within a unit, for the designation of an exclusive

bargaining agent for that unit. Id. Consistent with the

statute, a faculty union (the Minnesota Community

College Faculty Association (“MCCFA”)) was designated

the exclusive bargaining representative for the state’s

community college’s faculty, which had been deemed a

single bargaining unit. Id. at 275-76. Twenty professors,

who were not members of the union, brought suit

against the state board that operated the community

college system. Id. at 278. Before a three judge district

court panel, they challenged, under the First Amendment,

the constitutionality both of exclusive representation

21a

in bargaining over terms and conditions of employment

and of a statutory provision requiring the public

employer to engage in “meet and confer” sessions, id.

at 271, with only the exclusive representative—that is,

the union—“on policy questions relating to employment

but outside the scope of mandatory bargaining,” id. at

273. The district court panel upheld the requirement

of exclusive representation in bargaining, but it struck

down the designation of the exclusive representative

as the bargaining unit’s sole representative at the “meet

and confer” sessions regarding policy. Id. at 278-79.

The Supreme Court summarily affirmed as to the

statute’s designation of an exclusive representative in

negotiations over mandatory employment terms and

conditions. Knight v. Minn. Cmty. Coll. Fac. Ass’n, 460

U.S. 1048 (1983) (summary disposition). But it granted

certiorari on the professors’ challenge to the meet-andconfer provision with respect to non-mandatory policy

questions, and, in Knight, sustained that provision,

reversing the district court panel. The Court rejected

the professors’ contention that that provision abridged

their speech and associational rights and unconstitutionally denied them “a government audience for their

views.” Knight, 465 U.S. at 282, 286. The professors’

speech and association rights, the Court held, were not

infringed by exclusively empowering the union to

negotiate for the state on behalf of the bargaining unit

and to express “the faculty’s official collective position,”

id. at 276; see id. at 288. The statute left the professors

“free[] to speak on any education-related issue,” id. at

288, and “to associate or not to associate with whom

they please, including the exclusive representative,”

id.; see id. at 276 (“Not every instructor in the

bargaining unit is a member” of the association, and

“not every instructor agrees with the official faculty

view on every policy question.”). And the professors

22a

had “no constitutional right to force the government to

listen to their views,” whether “as members of the

public, as government employees, or as instructors in

an institution of higher education.” Id. at 283.

The parties disagree over Knight’s scope—and

relevance—here. Plaintiffs cast Knight’s holding as

“modest”: “that government officials are constitutionally

free to choose to whom they listen in nonpublic fora.”

Pl. Response MTD at 24. The decision, plaintiffs state,

speaks only to the constitutionality of denying nonunion members of a bargaining group the right to

participate in meet-and-confer sessions with the

public employer regarding policy. Id. It is irrelevant,

they contend, to their claims here that “an exclusive

representative’s authority to speak and contract”

unconstitutionally compels dissenting employees to

associate with the union and the other members of the

bargaining unit. Id. at 23.

For a number of reasons, plaintiffs’ attempt to cabin

and marginalize Knight is unsustainable.

First and most obviously, before it granted certiorari

on the meet-and-confer issue, the Supreme Court in

Knight summarily affirmed the portion of the decision

below that upheld the exclusive bargaining arrangement

against a First Amendment challenge. Rejecting that

challenge, the district court panel had held: “The

provisions of [the statute] that allow for an exclusive

representation system of collective bargaining and

that impose duties to ‘meet and negotiate’ with respect

to compensation and other terms and conditions of

employment are constitutionally valid on their face

and as applied in the community colleges . . . .” Knight

v. Minn. Cmty. Coll. Fac. Assn, 571 F. Supp. 1, 12-13 (D.

Minn. 1982), aff’d in part, 460 U.S. (summary disposition), and rev ‘d in part sub nom. 465 U.S. The Court’s

23a

summary affirmance of that ruling binds lower courts

to the judgment. Mandel v. Bradley, 432 U.S. 173, 176

(1977); see also Hicks v. Miranda, 422 U.S. 332, 344-45

(1975) (“The lower courts are bound by summary

decisions by the Supreme Court until such time as the

court informs them that they are not.” (cleaned up)).

And while “the rationale of the affirmance may not be

gleaned solely from the opinion below,” Mandel, 432

U.S. at 176, the Court, in Knight, supplied its reasoning

for the summary order. See Knight, 465 U.S. at 288-90.

Second, the Court’s analysis in Knight upholding

the exclusive meet-and-confer system referenced the

exclusive negotiation process and treated it as logically

analogous. In language that emphasized the similarity

between the meet-and-negotiate and meet-and-confer

provisions, the Court wrote:

Appellees’ associational freedom has not been

impaired. Appellees are free to form whatever

advocacy groups they like. They are not

required to become members of MCCFA . . . .

Appellees may well feel some pressure to join

the exclusive representative in order to give

them the opportunity to serve on the ‘meet

and confer’ committees or to give them a voice

in the representative’s adoption of positions

on particular issues. That pressure, however,

is no different from the pressure they may feel

to join MCCFA because of its unique status in

the ‘meet and negotiate’ process, a status the

Court has summarily approved. Moreover, the

pressure is no different from the pressure to

join a majority party that persons in the

minority always feel. Such pressure is inherent

in our system of government; it does not create

24a

an unconstitutional inhibition on associational

freedom.

Id. at 289-90 (emphasis added).

Third, a Second Circuit panel in 2016 rejected the

narrow construction of Knight that plaintiffs propose,

in upholding against a First Amendment challenge an

exclusive bargaining unit arrangement for public

employees. See Jarvis v. Cuomo, 660 F. App’x 72, 74 (2d

Cir. 2016) (summary order), cent. denied, 137 S. Ct.

1204 (2017). Although Jarvis was resolved by a nonbinding summary order, see Local Rule of the Second

Circuit 32.1.1(a) (“Rulings by summary order do not

have precedential effect.”), “[d]enying summary orders

precedential effect does not mean that” the Circuit,

and by extension a lower court, should “consider[]

itself free” to disregard the panel’s ruling “in similar

cases,” United States v. Payne, 591 F.3d 46, 58 (2d Cir.

2010) (cleaned up). And here, the Jarvis panel’s reasons

for reading Knight to uphold such an arrangement are

convincing.

At issue in Jarvis was a challenge by 10 operators of

home childcare businesses to Article 19-C of the New

York Labor Law, which permitted day-care providers

to organize and join a union. See Jarvis, 660 F. App’x

at 74. Under Article 19-C, New York State had certified

a union as the exclusive representative for the plaintiffs’

bargaining unit. See Jarvis v. Cuomo, No. 14 Civ. 1459

(LEK) (TWD), 2015 WL 1968224, at *2 (N.D.N.Y. Apr.

30, 2015), aff’d, 660 F. App’x. That arrangement, the

plaintiffs claimed, compelled them to associate with

the union and its expressive activities, in violation of

their First Amendment rights. The district court expressly

rejected the plaintiffs’ narrow reading of Knight, id.

at *4 (“Knight’s holding is broader than Plaintiffs

suggest.”), stating: “The Supreme Court’s language

25a

indicates that it broadly considered whether exclusive

representation by MCCFA infringed the plaintiffs’

associational rights,” id. In affirming, the Second

Circuit panel, quoting the passage reproduced above,

similarly held that Knight had “foreclosed” claims that

exclusive bargaining arrangements, by putting nonmembers to the choice of joining a union or losing

influence over the exclusive representative’s advocacy,

breached their First Amendment speech and association rights. Jarvis, 660 F. App’x at 74. 4

Fourth, every other Circuit to consider the question

has similarly held Knight to foreclose speech and

association claims by employees within the bargaining

group exclusively responsible for negotiating with the

public employer. See, e.g., D’Agostino v. Baker, 812 F.3d

240, 243 (1st Cir. 2016) (Souter, J. by designation) (nonmembers’ ability to “speak out publicly on any subject”

and “free[dom] to associate themselves together outside

the union however they might desire” defeated compelled

association claim), cert. denied, 579 U.S. 909 (2016)

The Circuit had previously reached a compatible conclusion

in the context of private sector employees. See Virgin Atl. Airways,

Ltd v. Nat’l Mediation Bd., 956 F.2d 1245 (2d Cir.), cert. denied,

506 U.S. 820 (1992). The employees there objected to the

certification of a union as their exclusive representative, on the

ground that, due to the improper consideration of votes by

ineligible persons, the union chosen to represent the bargaining

group had been selected by less than a majority of the eligible

workers. See id. at 1247-49. Rejecting a First Amendment challenge, the Circuit noted that the right of free association “has

never been held to mandate ‘majority rule’ in the labor relations

sphere,” adding, in language apposite to the situation addressed

in Knight: “If the First Amendment did protect individuals from

being represented by a group that they do not wish to have

represent them, it is difficult to understand why that right would

cease to exist when a majority of the workers elected the union,”

id. at 1251-52.

26a

(mem.); Adams v. Teamsters Union Loc. 429, 2022 WL

186045, at *2 (3d Cir. Jan. 20, 2022) (reading Knight

as “only about whether the employees could demand a

forum with their employer” would be “simply at odds

with what it says,” as “Knight foreclose[d] the First

Amendment [speech and association] challenge”), cert.

denied, 2022 WL 4651460 (mem.); Akers v. Md. State

Educ. Ass’n, 990 F.3d. 375, 382 n.3 (4th Cir. 2021)

(Knight “foreclosed” a freedom of association claim, in

holding that Minnesota’s exclusive representation

regime “did not violate speech and associational rights

of those who were not members of [the] organization

selected as exclusive representative”); Thompson v.

Marietta Educ. Ass’n, 972 F.3d 809, 813-14 (6th Cir.

2020) (Knight precluded First Amendment compelled

speech and association challenge to exclusive representation; plaintiff’s attempt to distinguish Knight

was “such a cramped reading of Knight” that it “would

functionally overrule the decision”), cert. denied, 141 S.

Ct. 2721 (2021) (mem.); Bennett v. Council 31 of the

AFSCME, 991 F.3d 724, 734-35 (7th Cir. 2021) (rejecting argument that Knight “addressed only whether

the plaintiffs could force the government to listen to

their views,” as “Knight speaks directly to the constitutionality of exclusive representation,” and barred

the free speech and association claim), cert. denied sub

nom. Bennett v. AFSCME, Council 31, 142 S. Ct. 424

(2021) (mem.); Hill v. Serv. Emps. Intl Union, 850 F.3d

861, 864 (7th Cir. 2017) (per Knight, an “exclusivebargaining-representative scheme is constitutionally

Firm” where non-members “are also free to form their

own groups, oppose the [union], and present their complaints to the State”), cert. denied, 138 S. Ct. 446 (2017)

(mem.); Bierman v. Dayton, 900 F.3d 570, 574 (8th Cir.

2018) (Knight “summarily affirmed the constitutionality

of exclusive representation for subjects of mandatory

27a

bargaining” and thereby foreclosed the claim that

the “‘mandatory agency relationship’ between [public

employees] and the exclusive representative . . violates

their right to free association under the First and

Fourteenth Amendments”), cert. denied sub nom. Bierman

v. Walz, 139 S. Ct. 2043 (2019) (mem.); Mentele v.

Inslee, 916 F.3d 783, 788 (9th Cir. 2019) (“Knight is the

most appropriate guide” for a compelled association

challenge and forecloses First Amendment challenge),

cert. denied sub nom Miller v. Inslee, 140 S. Ct. 114

(2019) (mem.); Hendrickson v. AFSCME Council 18,

992 F.3d 950, 969 (10th Cir. 2021) (Knight “found exclusive representation constitutionally permissible” and

“thus belies the plaintiffs claim that exclusive representation imposes [compelled speech and association] in violation of the First Amendment”), cert.

denied, 142 S. Ct. 423 (mem.).

The Court accordingly holds—following all courts of

appeals to have addressed the issue—that under

Knight, the “exclusive representation by public-sector

labor unions does not violate the speech or associational rights of non-union members.” Peltz-Steele v.

UMass Fac. Fed’n, Loc. 1895 Am. Fed’n of Tchrs.,

AFL-CIO, 21 Civ. 11590 (WGY), 2022 WL 3681824, at

*6 (D. Mass. Aug. 25, 2022). And although plaintiffs

declare that “Knight cannot bear [such] incredible

weight,” Pl. Response MTD at 24, they do not cite any

contrary authority.

B. Whether Knight Controls Here

Knight unavoidably controls here. The facts here are

on all fours with those in Knight—indeed, strikingly

so. With the exception of a 2019 amendment to the

Taylor Law, addressed infra Section III.D.4, plaintiffs

have not identified any salient difference between the

Minnesota statute upheld in Knight and New York’s

28a

Taylor Law. Both statutes prescribe exclusive bargaining with respect to public sector employees, see N.Y.

Civ. Serv. Law § 204; Knight, 465 U.S. at 271; utilize

a “bargaining unit” feature, see N.Y. Civ. Serv. Law

§ 204.2; Knight, 465 U.S. at 271; and do not compel

public employees to join the union elected by the

majority of the bargaining unit, see N.Y. Civ. Serv. Law

§ 209-a.2(a); Knight, 465 U.S. at 289. And like Knight,

this case consists of a First Amendment challenge by

professors at a public university who do not belong to

the union selected by a majority of instructors to represent

the bargaining unit in collective bargaining. Compare

Knight, 465 U.S. at 298, with Compl. 10-15, 47.

C. The Impact of Janus on Knight

Plaintiffs next argue that the 2018 decision in Janus

repudiates, at least implicitly, the holding in Knight,

requiring its reassessment. This, too, is wrong.

Janus addressed the mandatory payment of agency

fees—a portion of union dues—by non-members who

are part of an exclusive bargaining unit of public

employees. The plaintiff, Janus, had resigned from the

public sector union that had been majority-selected to

represent the bargaining unit. See Janus, 138 S. Ct. at

2460-62. Janus argued that, insofar as he had not

consented to the union’s representation of him, forcing

him to subsidize the union breached his First Amendment

rights. Id. at 2462-68. Michigan’s labor law permitting

such deductions had been based on the Supreme Court’s

decision in Abood v. Detroit Board of Education, 431

U.S. 209 (1977), which had upheld the charging by

public sector unions of non-members for a proportionate share of union dues attributable to a union’s

activities as its collective-bargaining representative.

Ruling for Janus, the Supreme Court overturned

Abood. It held that where “public employees are forced

29a

to subsidize a union, even if they choose not to join and

strongly object to the positions [of] the union[,] . . .

[such] violates the free speech rights of nonmembers

by compelling them to subsidize private speech on

matters of substantial public concern.” Janus, 138 S.

Ct. at 2459-60.

Although contesting the mandatory payment of agency

fees by non-members, Janus’s claim did not, more

broadly, challenge the exclusive representation model

for public employees, under the First Amendment or

otherwise. Plaintiffs here nonetheless argue that Janus

is a doctrinal sea-change that repudiates Knight or

logically calls it into doubt. See Pl. Response MTD at

21-22. In contrast, defendants depict Janus as consistent with, and indeed confirming, Knight’s vitality.

See State MTD at 12; PSC MTD at 10.

Plaintiffs are again incorrect. Janus repudiated

existing law insofar as it overturned Abood, the 1977

precedent that had upheld extraction of agency fees

from non-members against a First Amendment challenge.

But although the decision thus reflects heightened

sensitivity to the First Amendment issues implicated

by the payment of such fees, Janus, as a brief review

reflects, cannot fairly be read more broadly to impugn

the exclusive representation model of public sector

exclusive bargaining upheld in Knight.

Janus does not cite Knight. And Janus explicitly

assumed that the “labor peace” accomplished by the

exclusive representation of public employees was a

“compelling state interest,” insofar as it avoided the

“confusion” and “conflicting demands” that would

ensue were a public employer compelled to negotiate

with multiple unions on behalf of members of the same

bargaining unit, Janus, 138 S. Ct. at 2465 (cleaned up).

The Court further emphasized that the “designation

30a

of a union as the exclusive representative of all

employees in a unit” is not “inextricably linked” with

“the exaction of agency fees,” id. Its decision invalidating the extraction of agency fees instead turned on the

non-member’s compulsory subsidization of a union

whose views and values he did not share. See, e.g., id.

at 2463-64 (“Compelling individuals to mouth support

for views they find objectionable violates [a] cardinal

constitutional command,” and “[c]ompelling a person

to subsidize the speech of other private speakers raises

similar First Amendment concerns”). That interest is

not implicated by the inclusion of a nonmember in a

bargaining unit. Janus therefore drew the bounds of

its ruling as follows:

It is . . . not disputed that the State may

require that a union serve as exclusive

bargaining agent for its employees—itself a

significant impingement on associational

freedoms that would not be tolerated in other

contexts. We simply draw 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.

Id. at 2478. Lest the point be unclear, the Court added:

“States can keep their labor-relations systems exactly

as they are,” id. at 2485 n.27, including by “requir[ing]

that a union serve as exclusive bargaining agent for its

employees,” id. at 2478. See also id. at 2471 n.7 (“[W]e

are not in any way questioning the foundations of

modern labor law.”).

Unsurprisingly, every court of appeals to address

Knight since Janus has upheld state systems of exclusive representation against First Amendment challenges.

See, e.g., Reisman v. Associated Facs. of Univ. of Me.,

939 F.3d 409, 414 (1st Cir. 2019), cert. denied, 141 S.

31a

Ct. 445 (2020) (mem.); Adams, 2022 WL 186045, at *2

(“[W]e hold that, consistent with every Court of Appeals to

consider a post-Janus challenge to an exclusiverepresentation law, the law does not violate the First

Amendment.”), cert. denied, 2022 WL 4651460 (mem.);

Oliver v. Serv. Emps. Intl Union Loc. 668, 830 F. App’x

76, 80-81 (3d Cir. 2020); Akers, 990 F.3d at 382 n.3

(First Amendment challenge to exclusive representation barred by Knight); Thompson, 972 F.3d at 812

(noting that “when the Supreme Court decided Janus,

it left on the books . . . Knight,” which “directly controls

the outcome of the First Amendment claim against

exclusive representation), cert. denied, 141 S. Ct. (mem.);

Bennett, 991 F.3d at 727 (plaintiff “cannot establish

that Janus rendered the longstanding exclusivebargaining-representative system of labor relations

unconstitutional”), cert. denied sub nom., 142 S. Ct.

(mem.); Ocol v. Chi. Tchrs. Union, 982 F.3d 529, 532-33

(7th Cir. 2020) (“[The Janus] Court gave no indication

that its ruling on fair-share fees necessarily undermined

the system of exclusive representation.”), cert. denied,

142 S. Ct. 423 (2021) (mem.); Uradnik v. Inter Fac.

Org., 2 F.4th 722, 726 (8th Cir. 2021) (First

Amendment challenge barred where plaintiff’s claim

“look[ed] very similar to a claim brought by a different

group of Minnesota professors in Knight”); Bierman,

900 F.3d at 574 (Janus did not overrule Knight; “where

a precedent like Knight has direct application in a

case, [courts] should follow it, even if a later decision

arguably undermines some of its reasoning”), cert.

denied sub nom. 139 S. Ct. (mem.); Mentele, 916 F.3d

at 789 (Janus did not overrule Knight, and the court

must “leave to the Supreme Court the prerogative of

overruling its own decisions even if subsequent decisions

call into question some of that precedent’s rationale”

(cleaned up)), cert denied sub nom. 140 S. Ct. (mem.);

32a

Hendrickson, 992 F.3d at 969 (Janus “reinforces” the

holding in Knight that exclusive representation is

constitutionally permissible), cert. denied, 142 S. Ct.

(mem.). There have not been any dissents to these

decisions. 5

Accordingly, Janus does not disturb Knight, or assist

plaintiffs’ cause.

D. Plaintiffs’ First Amendment Claims in Light

of Knight

In light of Knight’s continuing vitality and its

unambiguous approval of exclusive bargaining arrangements as against First Amendment challenges, plaintiffs’

free speech and association claims are necessarily

foreclosed by binding precedent. Although plaintiffs

are at liberty to seek reassessment on appeal, the

Court, under the doctrine of vertical stare decisis, lacks

authority to depart from such precedent. 6 That is so

whether plaintiffs’ First Amendment claim is viewed

as challenging their compelled association with the

PSC (Count One) or with the bargaining unit’s other

members (Count Two).

The Sixth Circuit, although holding the plaintiff ’s compelled

association claims barred, opined that “Knight’s reasoning

conflicts with the reasoning in Janus.” Thompson, 972 F.3d at 814,

cert. denied, 141 S. Ct. (mem.). But the Circuit recognized that,

because the Supreme Court had not overruled Knight, it lacked

authority to treat Knight as no longer good law. Id.

“[V]ertical stare decisis is absolute, as it must be in a

hierarchical system with ‘one supreme Court.’” Ramos v. Louisiana,

140 S. Ct. 1390, 1416 n.5 (2020) (Kavanaugh, J., concurring in

part) (quoting U.S. Const., Art. III, § 1). This doctrine “provides

little, if any, leeway for a district court judge to stray.” Dodge v.

Cnty. of Orange, 282 F. Supp. 2d 41, 80 (S.D.N.Y. Sept. 9, 2003);

see also Palin v. N.Y. Times Co., 482 F. Supp. 3d 208, 215 (S.D.N.Y.

Aug. 8, 2020), modified, 510 F. Supp. 3d 21 (S.D.N.Y. Dec. 29, 2020).

33a

In the interest of completeness, the Court nonetheless

evaluates why, under governing doctrine, the four

theories of a First Amendment violation that plaintiffs

have ventured in this lawsuit do not state a viable

claim. As explained, the first three of these are

foreclosed, either literally or effectively, by Knight. The

fourth concerns a recent amendment to the Taylor Law.

1. Compelled Association with the PSC

Plaintiffs’ first theory is that New York impermissibly compels them to associate with the PSC and its

speech by forcing them to accept the PSC as their

mandatory agent for speaking and contracting with

CUNY. Pl. Response MTD at 13-14. The association

with the PSC is particularly toxic, plaintiffs plead,

because the PSC has expressed abhorrent anti-Semitic

and anti-Zionist views on extraneous (i.e., nonemployment) matters. Compl. ¶ 3. Plaintiffs claim that

this further causes them to lack confidence in the PSC

to fairly represent the bargaining unit in collective

bargaining over the terms and conditions of employment. Id. ¶ 43.

Although plaintiffs’ dismay at being situated in a

bargaining unit led by persons with views they find

reprehensible is undeniably sympathetic, Knight and

its circuit-court progeny squarely foreclose such as

a basis of a viable First Amendment claim. As these

cases reflect, the remedies for a member of the

bargaining unit are instead to resign from the union, 7

The Complaint alleges, in fact, that plaintiff Lax resigned

from the PSC after his complaints against the union before the

Equal Employment Opportunity Commission prevailed in various

respects. These allegedly resulted in determinations that certain

defendants “discriminated” and “retaliated” against Lax on the

basis of his religion. Compl. ¶ 32.

34a

to decline to subsidize the union as Janus now permits,

and/or to otherwise disassociate from the noxious

speech. An employee may also seek to vote out the

union as representative of the bargaining unit, to work

within the union to change its leadership, or to pursue,

through appropriate channels, claims of a denial of fair

representation. But these authorities do not support

a First Amendment right for the minority members

to bargain separately with the employer on account

of their discomfort with the union’s views. See, e.g.,

D’Agostino, 812 F.3d at 244 (“[T]he 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.”), cert. denied, 579 U.S.

(mem.); Mentele, 916 F.3d at 788 (no First Amendment

violation “where plaintiff raises concern that a union

she dislikes is speaking for her”), cert denied sub nom.

140 S. Ct. (mem.).

2. Compelled Association with the Bargaining Unit

Plaintiffs’ second theory is that New York impermissibly compels them to associate with “tens of

thousands of other instructional staff’ in the same

bargaining unit, despite the fact that many of these

other instructors “do not share [plaintiffs’] beliefs or

are overtly hostile to them.” Compl. ¶ 48; see id. ¶¶ 99100; Pl. Response MTD at 16 (claiming that New York

has interfered with the professors’ “right to select with

whom they join in a common endeavor”).

35a

Plaintiffs depict this theory of a First Amendment

violation as an open question, insofar as the challenge

by the Minnesota professors in Knight was based on

dissident instructors’ compelled association with the

union itself, as opposed to with other members of the

bargaining group, and ensuing cases have had a

similar factual basis. As a formal matter, such may be

so. But even if this feature distinguished this entire

line of cases, it would be of no moment. That is because

the logic of Knight and its progeny would equally

dispose of this theory of a First Amendment violation.

By definition, a bargaining unit is comprised of a

large number of employees—even tens of thousands,

as with plaintiffs’ unit. These masses cannot be

expected to agree on every issue, employment-related

or otherwise, any more than a dissident member of the

bargaining unit can be expected invariably to share

the views of the bargaining representative elected

by the unit. And like the union and its leadership,

the other members of a bargaining unit have First

Amendment rights of expression. The analysis in

Knight—holding that a dissident within the bargaining group does not have a First Amendment right to

bargain separately with the public employer so as to

enable them to dissociate from others whose views

they do not share—equally applies to this theory of

plaintiffs. And, taken to its logical extreme, plaintiffs’

theory would entitle every single member of a bargaining group to negotiate separately with the public

employer over terms and conditions of employment,

lest the employee be clustered with another whose

views he or she found disagreeable, a point plaintiffs

conceded at argument. See Tr. at 54-56. Under the case

law, that thesis is untenable. See Knight, 465 U.S. at

291 (“The goal of reaching agreement makes it imperative for an employer to have before it only one

36a

collective view of its employees when ‘negotiating.’”);

see also Oliver, 830 F. App’x at 80-81 (government’s

interests served by “choos[ing] to listen to a union

while ignoring nonmembers without infringing upon

the nonmembers’ rights”); Peltz-Steele, 2022 WL 3681824,

at *9 (“Although private in nature, exclusive union

representation echoes the representative structures

of American democracy both in its assets and its

imperfections, fostering a majoritarianism tempered

by constraints of fair representation but which inescapably yields a dissenting minority.”).

In any event, this theory fails for a separate reason.

The case law does not support that including a person

in a bargaining group alongside other people is an act

of “expressive” quality implicating the First Amendment.

The decision in Rumsfeld v. Forum for Academic

& Institutional Rights, Inc., 547 U.S. 47 (2006), is

instructive. Law schools there challenged a federal law

(the “Solomon Amendment”) requiring that if any part

of an institution of higher education denied military

recruiters access equal to that provided other recruiters,

the entire institution would lose certain federal funds.

Rumsfeld, 547 U.S. at 51. In the part of its decision

pertinent here, the Supreme Court rejected the law

schools’ challenge, finding that “the schools are not

speaking when they host interviews and recruiting

receptions.” Id. at 64. 8 “[T]he conduct regulated by the

Solomon Amendment,” the Court held, “is not inherently

expressive” because it requires only “explanatory speech”

to communicate its message. Id. at 66. The Court

added: “Compelling a law school that sends scheduling

The law schools separately argued that the Solomon Amendment placed an unconstitutional condition on their receipt of

federal funds. See Rumsfeld, 547 U.S. at 57-66. The Court’s

assessment of that claim is not relevant here.

37a

e-mails for other recruiters to send one for a military

recruiter is simply not the same as forcing a student

to pledge allegiance, or forcing a Jehovah’s Witness to

display the motto ‘Live Free or Die,’ and it trivializes

the freedom protected in [West Virginia State Board

of Education v. Barnette, 319 U.S. 624 (1943)] and

[Wooley v. Maynard, 430 U.S. 705 (1977)] to suggest

that it is.” Id. at 62.

So, too, here. The Complaint does not allege that

CUNY’s professors are required to “say” anything, or

take any action, 9 as members of the bargaining unit,

beyond being bound by the terms and conditions

negotiated on their behalf by the unit’s elected

exclusive representative, the PSC. It is thus not of

any moment, under the First Amendment, that other

members of the bargaining unit “do not share their

same economic interests,” Compl. ¶ 48, “do not share

their beliefs,” id., and “are overtly hostile to them,” id.

That people with different viewpoints are in a common

unit for purposes of collective bargaining does not

associate each—within the meaning of the First

Amendment—with the viewpoints of the others, any

more than the travelers on a common public carrier

such as a municipal bus or train, or the students in a

common public school, are associated with one another’s

ideas or perspectives. 10 The Complaint here does not

Although the Complaint alleges that the Resolution “requir[es]

chapter-level discussion of possible support by PSC,” Compl. ¶ 34,

for the Palestinian-led “Boycott, Divestment, Sanctions” movement

against Israel, the Complaint does not allege that the professors

are obligated to attend or participate in those discussions. Nor

does the Resolution’s text suggest an obligation of all union

members, let alone non-union members, to participate in these

discussions. See Resolution at 1-2.

For this reason, the compelled speech cases that plaintiffs

cite are far afield. Plaintiffs, as pled, have not been required to

38a

plead any concrete facts why outsiders would reasonably

impute an association between a professor and any of

the many viewpoints held among the approximately

30,000 other instructors in the bargaining unit. Just

as the Solomon Amendment was held not to infringe

on the law school’s associational rights even if the

school found the military recruiter’s messages in

interviews, receptions, bulletin boards, and emails

“repugnant,” Rumsfeld, 547 U.S. at 70, that the CUNY

professors vehemently disagree with the messages of

others in the bargaining unit does not bespeak a

cognizable injury under the First Amendment.

carry, endorse, or embrace any message of another—whether the

PSC or its members. See Hurley v. Irish Am. Gay, Lesbian &

Bisexual Grp., 515 U.S. 557 (1995) (state may not require

organizers of private parade to include among marchers a group

imparting message the organizers do not wish to convey); Pac.

Gas & Elec. Co. v. Pub. Utility Comm’n of Cal., 475 U.S. 1 (1986)

(state may not require privately owned utility to include in its

billing envelopes speech of a third party with which it disagrees);

Wooley v. Maynard, 430 U.S. 705 (1977) (state cannot compel

citizens to display state motto on license plates); Miami Herald

Publ’g Co. v. Tornillo, 418 U.S. 241 (1974) (state cannot require

newspaper to run rebuttals to its editorials); W. Va. Bd. of Ed. v.

Barnette, 319 U.S. 624 (1943) (public school students may not be

compelled to recite Pledge of Allegiance); see also Boy Scouts of

Am. v. Dale, 530 U.S. 640, 644 (2000) (public accommodations law

that required Boy Scouts to readmit homosexual member violated

Boy Scouts’ First Amendment right of expressive association). To

the extent that the PSC’s speech presumptively reflects the views

of the majority of its members, plaintiffs are free to dissent, and

have exercised that right. See, e.g., Avraham Goldstein, I’m Stuck

with an Anti-Semitic Labor Union, Wall Street J. (Jan. 21, 2022),

https://www.wsj.com/articles/im-stuck-anti-semitic-semitism-pub

lic-labor-union-intimidation-dues-cuny-city-university-new-yorkjanus-11642714137 (last visited November 29, 2022).

39a

3. The PSC as a Hostile Political Group

Plaintiffs’ third theory—a variant of the first—casts

the PSC as the equivalent of “a hostile political group,”

Pl. Response MTD at 14, with which New York is

forcing the professors to affiliate, see Compl. ¶ 68. In

support, plaintiffs cite cases giving public employees

the right not to be discharged for refusing to support

a political party or its candidates. See, e.g., Elrod v.

Burns, 427 U.S. 347 (1976) (First and Fourteenth

Amendments violated where non-civil-service employees

were threatened with discharge for failure to affiliate

with Democratic Party); Rutan v. Republican Party

of Ill., 497 U.S. 62 (1990) (promotions, transfers, and

recalls based on political affiliation or support are

impermissible infringements on public employees’ First

Amendment rights; conditioning hiring decisions on

political belief and association violates applicants’

First Amendment rights absent vital governmental

interest); O’Hare Truck Serv., Inc. v. City of Northlake,

518 U.S. 712 (1996) (governmental retaliation against

city contractors for exercising rights of political association or expression impermissible).

These cases, however, are far afield. Each involves a

state actor’s consideration of the political affiliation of

an employee or applicant to favor or penalize their

career prospects. There is no analog alleged here.

Quite the contrary, the Complaint is notably devoid of

any claim that non-union instructors in the bargaining

unit have been, or stand to be, treated in any way

disadvantageously relative to members (or supporters)

of the union. 11 Nor does it plead any facts indicating

To the extent the professors argue that they, as nonmembers, are treated “worse” than members owing to a 2019

amendment to the Taylor Law which limits the PSC’ s duty to

40a

that instructors have been differentially treated based

on political affiliation or point of view. The Complaint

instead faults New York for treating the non-unionmember instructors in pari passe with the union

instructors, as common members of the bargaining

unit. Notably, too, although the Complaint states that

the six plaintiffs subjectively doubt the PSC can ably

serve as a fiduciary for them in negotiating terms

and conditions of employment, Compl. ¶ 43, it does

not allege that any have experienced adverse consequences from their decisions to resign from the PSC.

4. Facial Challenge to the Taylor Law’s

Section 209-a.2

Plaintiffs’ final theory is of a different character.

They contend that a 2019 amendment to the Taylor

Law, see N.Y. Civ. Serv. Law § 209-a.2, gives rise to a

facial First Amendment violation. 12 That amendment

states that the union designated as the exclusive

bargaining representative owes “non-members” or the

bargaining unit a duty of fair representation “limited

to the negotiation or enforcement of the terms of an

agreement with [their] public employer,” id. § 209a.2(c). But, it states, such a union is not required to

provide representation to non-members in situations

that involve “questioning by the employer,” “in statutory

or administrative proceedings or to enforce statutory

or regulatory rights,” or “in any stage of a grievance,

arbitration or other contractual process concerning the

evaluation or discipline of a public employee where the

nonmembers in individualized grievance settings, that argument

is addressed infra Section III.D.4.

Although neither the Complaint nor plaintiffs’ memorandum

of law denotes the challenge as facial, counsel at argument agreed

that the challenge is necessarily facial. See Tr. at 17, 47.

41a

non-member is permitted to proceed without the

employee organization and be represented by his or

her own advocate.” Id. § 209-a.2(c)(i)–(iii).

Plaintiffs contend that this provision—added in the

wake of the Janus decision—authorizes the PSC to

“treat [the CUNY Professors] less favorably than PSC

members, solely because they have exercised their

constitutional rights to become or remain non-members,”

Compl. ¶ 53, and that such violates the First Amendment.

As plaintiffs put the point: “This state of affairs leaves

[plaintiffs’] and other non-members’ interests vulnerable

to arbitrary and discriminatory union conduct,” PI.

Response MTD at 12, notwithstanding the admonition

in Janus that the “duty of fair representation is a

necessary concomitant of the authority that a union

seeks when it chooses to be the exclusive representative,” Janus, 138 S. Ct. at 2456. 13

Plaintiffs’ argument based on Janus is unpersuasive, as

§ 209-a.2, as amended, in fact responds to the analysis

in Janus. Addressing a union’s duty of fair representation to members and non-members, the Court there

held: “What this duty entails, in simple terms, is an

obligation not to act solely in the interests of [the

union’s] own members.” Id. at 2467 (cleaned up). The

Court further made clear that a union henceforth is at

liberty to decline to represent non-members in the

grievance process, thereby eliminating the risk, after

Janus, of freeriding by a non-member who declined to

pay agency fees. “[W]hatever unwanted burden is imposed

by the representation of non-members in disciplinary

At argument, plaintiffs acknowledged that this challenge is

unlike that in Steele v. Louisville & Nashville Railroad Co., 323

U.S. 192 (1944), which held that a union could not exclude or deny

equal treatment to non-union members based on a protected

classification. See Tr. 39-40.

42a

matters can be eliminated through means significantly

less restrictive of associational freedoms. Individual

non-members could be required to pay for that service

or could be denied union representation altogether.” Id.

at 246869 (emphasis added) (cleaned up).

The amendment to the Taylor Law adopts the

approach invited by Janus. It does so by limiting the

public employee union’s duty to represent non-members,

so as to apply to collective bargaining, but not to

individualized proceedings such as disciplinary grievances. To this end, § 209-a.2 states that a union need

not represent a non-member “during questioning by

the employer,” N.Y. Civ. Serv. Law § 209-a.2(c)(i), “in

statutory or administrative proceedings or to enforce

statutory or regulatory rights,” id. § 209-a.2(c)(ii), and

“in any stage of a grievance, arbitration or other

contractual process concerning the evaluation or

discipline,” id. § 209-a.2(c)(iii), “where the non-member

is permitted to proceed without the employee organization and be represented by his or her own advocate,”

id. Plaintiffs’ claim that § 209-a.2 as amended is

inconsistent with Janus’ s reminder that a union must

discharge its duty of fair representation thus overlooks

the line the Court in Janus drew between collective

and individualized proceedings. Read on its face and

evaluated in light of Janus, § 209-a.2 faithfully applies

Janus. It does not infringe on the rights of a nonmember, whether to free speech and expression under

the First Amendment or to fair representation. 14

With this caveat: The parties have not drawn to the Court’s

attention case law construing the amended § 209-a.2. See Tr. 63.

Should that provision be construed differently than the Court has

here and so as to intrude on the duty of fair representation, the

above analysis would not apply.

43a

In a bid to avoid this result, plaintiffs suggest that

the final clause of the amended section—“where the

non-member is permitted to proceed without the

employee organization and be represented by his

or her own advocate”—might be read to modify only

§ 209-a.2(c)(iii), and not § 209-a.2(c)(i) and § 209a.2(c)(ii). That construction is textually unpersuasive.

See Am. Intl Grp., Inc. v. Bank of Am. Corp., 712 F.3d

775, 782 (2d Cir. 2013) (“When there is no comma, as

in the statute considered in Barnhart [v. Thomas, 540

U.S. 20, 26 (2003)], the subsequent modifier is ordinarily

understood to apply only to its last antecedent. When

a comma is included, . . . the modifier is generally

understood to apply to the entire series.”). And even if

§ 209-a.2 were ambiguous on this point, the canon of

constitutional avoidance would dictate the same

outcome. See Jennings v. Rodriguez, 138 S. Ct. 830, 842

(2018); Clark v. Martinez, 543 U.S. 371, 380-81 (2005)

(“[W]hen deciding which of two plausible statutory

constructions to adopt, a court must consider the

necessary consequences of its choice. If one of them

would raise a multitude of constitutional problems, the

other should prevail—whether or not those constitutional problems pertain to the particular litigant

before the Court.”). That is because the reading the

professors suggest—under which a union would be

permitted not to represent the non-member in settings

where the member was not allowed to “be represented

by his or her own advocate”—would leave the nonmember unassisted “during questioning by the employer,”

N.Y. Civ. Serv. Law § 209-a.2(c)(i), and “in statutory or

administrative proceedings or to enforce statutory or

regulatory rights,” id. § 209-a.2(c)(ii). The constitutional questions potentially raised under Janus by

this reading are, however, avoided by construing the

final clause to apply to all of § 209-a.2’s subsections.

44a

Consistent with this, the Complaint does not allege

that nonmembers of the PSC have been denied

representation by the PSC, where they cannot select

their own advocate for representation, in any category

of individualized proceeding described in § 209-a.2. 15

The Court therefore rejects plaintiffs’ final theory of

a First Amendment violation. New York’s statutory

amendment restricting the scope of a public employee

union’s obligatory representation of non-members is,

on its face, in accord with Janus. There is no basis to

hold that it breaches the First Amendment rights of

the non-members.

Plaintiffs’ First Amendment challenges to their

representation by the PSC and inclusion in the

bargaining unit alongside members of the PSC, as

brought in Counts One and Two, therefore fail to state

a claim. These Counts must be dismissed.

IV. Status of Certain Plaintiffs’ Improper DuesDeduction Claims (Count Three)

The scope of Count Three has narrowed substantially

since the filing of the Complaint, as a result of

concessions by the parties and plaintiff Goldstein’s

acceptance of an offer of judgment by the City.

At the outset, three plaintiffs—Goldstein, KassShraibman and Langbert—sought prospective and retroactive relief against the PSC, DiNapoli, and the City.

See Compl. ¶¶ 108-18. In their reply to the motions to

dismiss, plaintiffs conceded that their Count Three

The PSC’s collective bargaining agreement, which the Complaint attaches and incorporates, see CBA, is in accord. In Section

21.3, it provides that an employee, whether or not a union

member, can choose to be represented by either an attorney or a

union representative in grievance proceedings. CBA at 57.

45a

“claims for prospective relief are not justiciable,” Pl.

Response MTD at 33. Goldstein then accepted an offer

of judgment from the City, in the amount of $223.35,

“plus reasonable attorneys’ fees, expenses, [and] costs

in an amount to be determined by the Court.” Dkts. 77,

78. 16

This leaves intact—as the parties have confirmed in

a joint letter, see Dkt. 80, and at argument, see Tr. at

5—only the claims for retroactive relief by the three

plaintiffs 17 against the PSC. See Dkt. 80. The PSC did

not move to dismiss these claims. See PSC Reply MTD

at 12. Therefore, the Court denies as moot all motions

to dismiss as to Count Three.

CONCLUSION

For the reasons above, the Court grants defendants’

motions to dismiss in full. The Court therefore dismisses

Counts One and Two, and the portions of Count Three

on which defendants have moved.

The case will now proceed to discovery on the

surviving portion of Count Three, which is limited to

the claims against the PSC by Goldstein, KassShraibman, and Langbert, with respect to dues and

interest allegedly deducted from their wages after

their resignations from the union. Because no live

claims remain against any defendants other than the

PSC, the Court accordingly dismisses all other defendants

from this case. The Court directs counsel for the

Goldstein moved shortly thereafter for an award of attorneys’

fees and costs. Dkt. 84. In the interests of economy and consistency, the

Court will not entertain any such motion until Count Three,

whose resolution could prompt further motions for fees and costs,

has been resolved.

Goldstein has indicated, in the latest joint letter, Dkt. 80 at

1, that he plans to drop his remaining claim against the PSC.

46a

remaining parties (Goldstein, Kass-Shraibman, Langbert,

and the PSC) to jointly submit, by December 9, 2022,

a proposed case management plan contemplating, inter

alia, the completion of discovery on the remaining claim

by February 9, 2023.

The Court respectfully directs the Clerk of the Court

to close the motions pending at docket numbers 53, 56,

and 59, and to terminate the City of New York, CUNY,

DiNapoli, Wirenius, Townley, and Zumbolo as defendants

in this matter.

SO ORDERED.

/s/ Paul A. Engelmayer

Paul A. Engelmayer

United States District Judge

Dated: November 30, 2022

New York, New York

47a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

————

Case No. 1:22-cv-00321-PAE

————

AVRAHAM GOLDSTEIN; MICHAEL GOLDSTEIN;

FRIMETTE KASS-SHRAIBMAN; MITCHELL LANGBERT;

JEFFREY LAX; MARIA PAGANO,

Plaintiffs,

PROFESSIONAL STAFF CONGRESS/CUNY, et al.,

Defendants.

————

Hon. Paul A. Engelmayer

————

FINAL JUDGMENT IN A CIVIL CASE

IT IS ORDERED AND ADJUDGED THAT FINAL

JUDGMENT IS HEREBY ENTERED in accordance

with the November 30, 2022 Opinion and Order granting

in full the Motions to Dismiss filed by Defendants

Professional Staff Congress/CUNY (“PSC”), City

University of New York (“CUNY”), DiNapoli, Wirenius,

Townley and Zumbolo and dismissing counts one and

two of the complaint and all Defendants other than

Defendant PSC (Doc. No. 95) and the February 14,

2023 Order of Dismissal with Prejudice of Count Three

as to Defendant PSC (Doc. No. 110).

IT IS FURTHER ORDERED that the Unopposed

Motion for Entry of Final Judgment, Doc. No. 111, be,

and the same hereby is, GRANTED.

48a

FINAL JUDGMENT is therefore entered in favor of

Defendants CUNY, DiNapoli, Wirenius, Townley and

Zumbolo against all Plaintiffs on all three counts of

the complaint; in favor of Defendant PSC against all

Plaintiffs on counts one and two of the complaint;

AND with the voluntary dismissal of count three by

the remaining Plaintiffs against Defendant PSC, the

complaint is HEREBY DISMISSED IN ITS ENTIRETY.

Dated this 14 day of March, 2023.

SO ORDERED

/s/ Paul A. Engelmayer

Hon. Paul A. Engelmayer

United States District Judge

49a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

————

Docket No: 23-384

————

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 22nd day of April, two

thousand twenty-four.

————

AVRAHAM GOLDSTEIN, MICHAEL GOLDSTEIN,

FRIMETTE KASS-SHRAIBMAN, MITCHELL LANGBERT,

JEFFREY LAX, MARIA PAGANO,

Plaintiffs-Appellants,

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.

————

ORDER

————

50a

Appellants, Avraham Goldstein, Michael Goldstein,

Frimette Kass-Shraibman, Mitchell Langbert, Jeffrey

Lax and Maria Pagano, have filed a petition for

rehearing en banc. The active members of the Court

have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is

denied.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

[United States Court of Appeals

Second Circuit Seal]

51a

APPENDIX E

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

N.Y. Civ. Serv. Law § 204

1. Public employers are hereby empowered to recognize

employee organizations for the purpose of negotiating

collectively in the determination of, and administration of grievances arising under, the terms and

conditions of employment of their public employees as

provided in this article, and to negotiate and enter into

written agreements with such employee organizations

in determining such terms and conditions of employment.

2. Where an employee organization has been certified or

recognized pursuant to the provisions of this article, it

shall be the exclusive representative, for the purposes

of this article, of all the employees in the appropriate

negotiating unit, and the appropriate public employer

shall be, and hereby is, required to negotiate

collectively with such employee organization in the

determination of, and administration of grievances

arising under, the terms and conditions of employment

of the public employees as provided in this article, and

to negotiate and enter into written agreements with

such employee organizations in determining such terms

and conditions of employment.

3. For the purpose of this article, to negotiate

collectively is the performance of the mutual obligation of

52a

the public employer and a recognized or certified

employee organization to meet at reasonable times

and confer in good faith with respect to wages, hours,

and other terms and conditions of employment, or the

negotiation of an agreement, or any question arising

thereunder, and the execution of a written agreement

incorporating any agreement reached if requested by

either party, but such obligation does not compel either

party to agree to a proposal or require the making of a

concession.

N.Y. Civ. Serv. Law § 209-a

1. Improper employer practices. It shall be an

improper practice for a public employer or its agents

deliberately (a) to interfere with, restrain or coerce

public employees in the exercise of their rights guaranteed in section two hundred two of this article for the

purpose of depriving them of such rights; (b) to dominate

or interfere with the formation or administration of

any employee organization for the purpose of depriving

them of such rights; (c) to discriminate against any

employee for the purpose of encouraging or discouraging

membership in, or participation in the activities of, any

employee organization; (d) to refuse to negotiate in

good faith with the duly recognized or certified representatives of its public employees; (e) to refuse to

continue all the terms of an expired agreement until a

new agreement is negotiated, unless the employee

organization which is a party to such agreement has,

during such negotiations or prior to such resolution of

such negotiations, engaged in conduct violative of

subdivision one of section two hundred ten of this

article; (f) to utilize any state funds appropriated for

any purpose to train managers, supervisors or other

administrative personnel regarding methods to discourage union organization or to discourage an employee

53a

from participating in a union organizing drive; (g) to

fail to permit or refuse to afford a public employee the

right, upon the employee's demand, to representation

by a representative of the employee organization, or

the designee of such organization, which has been

certified or recognized under this article when at the

time of questioning by the employer of such employee

it reasonably appears that he or she may be the subject

of a potential disciplinary action. If representation is

requested, and the employee is a potential target of

disciplinary action at the time of questioning, a

reasonable period of time shall be afforded to the

employee to obtain such representation. It shall be an

affirmative defense to any improper practice charge

under paragraph (g) of this subdivision that the

employee has the right, pursuant to statute, interest

arbitration award, collectively negotiated agreement,

policy or practice, to present to a hearing officer or

arbitrator evidence of the employer's failure to provide

representation and to obtain exclusion of the resulting

evidence upon demonstration of such failure. Nothing

in this section shall grant an employee any right to

representation by the representative of an employee

organization in any criminal investigation; or (h) to

disclose home addresses, personal telephone numbers,

personal cell phone numbers, personal e-mail addresses of

a public employee, as the term “public employee” is

defined in subdivision seven of section two hundred

one of this article, except (i) where required pursuant

to the provisions of this article, (ii) to the extent

compelled to do so by lawful service of process, subpoena,

court order, or (iii) in accordance with subdivision four

of section two hundred eight of this article, or as

otherwise required by law. This paragraph shall not

prohibit other provisions of law regarding work-

54a

related, publicly available information such as title,

salary, and dates of employment.

2. Improper employee organization practices. It shall

be an improper practice for an employee organization

or its agents deliberately (a) to interfere with, restrain

or coerce public employees in the exercise of the rights

granted in section two hundred two, or to cause, or

attempt to cause, a public employer to do so provided,

however, that an employee organization does not

interfere with, restrain or coerce public employees

when it limits its services to and representation of

non-members in accordance with this subdivision;

(b) to refuse to negotiate collectively in good faith

with a public employer, provided it is the duly

recognized or certified representative of the employees

of such employer; or (c) to breach its duty of fair

representation to public employees under this article.

Notwithstanding any law, rule or regulation to the

contrary, an employee organization's duty of fair

representation to a public employee it represents but

who is not a member of the employee organization

shall be limited to the negotiation or enforcement of

the terms of an agreement with the public employer.

No provision of this article shall be construed to

require an employee organization to provide representation to a non-member (i) during questioning by the

employer, (ii) in statutory or administrative proceedings

or to enforce statutory or regulatory rights, or (iii) in

any stage of a grievance, arbitration or other contractual

process concerning the evaluation or discipline of a

public employee where the non-member is permitted

to proceed without the employee organization and be

represented by his or her own advocate. Nor shall any

provision of this article prohibit an employee organization from providing legal, economic or job-related

55a

services or benefits beyond those provided in the

agreement with a public employer only to its members.

3. The public employer shall be made a party to any

charge filed under subdivision two of this section

which alleges that the duly recognized or certified

employee organization breached its duty of fair

representation in the processing of or failure to process

a claim that the public employer has breached its

agreement with such employee organization.

4. Injunctive relief.

(a) A party filing an improper practice charge under

this section may petition the board to obtain

injunctive relief, pending a decision on the merits of

said charge by an administrative law judge, upon a

showing that: (i) there is reasonable cause to believe

an improper practice has occurred, and (ii) where it

appears that immediate and irreparable injury, loss

or damage will result thereby rendering a resulting

judgment on the merits ineffectual necessitating the

maintenance of, or return to, the status quo to

provide meaningful relief.

(b) Within ten days of the receipt by the board of

such petition, if the board determines that a

charging party has made a sufficient showing both

that there is reasonable cause to believe an

improper practice has occurred and it appears that

immediate and irreparable injury, loss or damage

will result thereby rendering a resulting judgment

on the merits ineffectual necessitating maintenance

of, or return to, the status quo to provide meaningful

relief, the board shall petition the supreme court, in

Albany county, upon notice to all parties for the

necessary injunctive relief or in the alternative may

issue an order permitting the charging party to seek

56a

injunctive relief by petition to the supreme court, in

which case the board must be joined as a necessary

party. The board or, where applicable, the charging

party, shall not be required to give any undertakings

or bond and shall not be liable for any damages or

costs which may have been sustained by reason of

any injunctive relief ordered. If the board fails to act

within ten days as provided herein, the board, for

purposes of review, shall be deemed to have made a

final order determining not to seek injunctive relief.

charging party has not made a sufficient showing

and that no petition to the court is appropriate

under paragraph (b) of this subdivision, such

determination shall be deemed a final order and

may be immediately reviewed pursuant to and upon

the standards provided by article seventy-eight of

the civil practice law and rules upon petition by the

charging party in supreme court, Albany county.

(d) Injunctive relief may be granted by the court,

after hearing all parties, if it determines that there

is reasonable cause to believe an improper practice

has occurred and that it appears that immediate

and irreparable injury, loss or damage will result

thereby rendering a resulting judgment on the

merits ineffectual necessitating maintenance of, or

return to, the status quo to provide meaningful

relief. Such relief shall expire on decision by an

administrative law judge finding no improper practice

to have occurred, successful appeal or motion by

respondent to vacate or modify pursuant to the

provisions of the civil practice law and rules, or

subsequent finding by the board that no improper

practice had occurred. The administrative law judge

shall conclude the hearing process and issue a

57a

decision on the merits within sixty days after the

imposition of such injunctive relief unless mutually

agreed by the respondent and charging party.

(e) A decision on the merits of the improper practice

charge by an administrative law judge finding an

improper practice to have occurred shall continue

the injunctive relief until either: (i) the respondent

fails to file exceptions to the decision and implements the remedy, or (ii) the respondent successfully

moves in court, upon notice, to vacate or modify the

injunctive relief pursuant to provisions of the civil

practice law and rules.

(f) Any injunctive relief in effect pending a decision

by the board on exceptions: (i) shall expire upon a

decision by the board finding no improper practice

to have occurred, of which the board shall notify the

court immediately, or (ii) shall remain in effect only

to the extent it implements any remedial order

issued by the board in its decision, of which the

board shall notify the court immediately.

(g) All matters in which the court has granted

injunctive relief pursuant to this subdivision shall

be given preference in the scheduling, hearing and

disposition over all other matters before the board

or its administrative law judges.

(h) The appeal of any order granting, denying,

modifying or vacating injunctive relief ordered by

the court pursuant to this subdivision shall be made

in accordance with the provisions of article fifty-five

of the civil practice law and rules except that where

such injunctive relief is stayed pursuant to section

fifty-five hundred nineteen of the civil practice law

and rules, an appeal for removal of such stay may be

given preference in the same manner as provided in

58a

rule fifty-five hundred twenty-one of the civil

practice law and rules.

(i) Nothing in this section shall be deemed to

eliminate or diminish any right that may exist

pursuant to any other law.

(j) Pursuant to paragraph (d) of subdivision five of

section two hundred five of this article, the board

shall make such rules and regulations as may be

appropriate to effectuate the purposes and provisions of

this subdivision.

5. Injunctive relief before the New York city board of

collective bargaining.

(a) A party filing an improper practice charge under

section 12-306 of the administrative code of the city

of New York may petition the board of collective

bargaining to obtain injunctive relief before the

supreme court, New York county, pending a decision

on the merits by the board of collective bargaining,

upon a showing that: (i) there is reasonable cause to

believe an improper practice has occurred, and (ii)

where it appears that immediate and irreparable

injury, loss or damage will result and thereby

rendering a resulting judgment on the merits ineffectual necessitating the maintenance of, or return

to, the status quo to provide meaningful relief.

(b) Within ten days of the receipt by the board of

such petition, if the board of collective bargaining

determines that a charging party has made a

sufficient showing both that there is reasonable

cause to believe an improper practice has occurred

and it appears that immediate and irreparable

injury, loss or damage will result thereby rendering

a resulting judgment on the merits ineffectual

necessitating maintenance of, or return to, the

59a

status quo to provide meaningful relief, said board

shall petition the supreme court in New York county,

upon notice to all parties, for the necessary

injunctive relief, or in the alternative said board may

issue an order permitting the charging party to seek

injunctive relief by petition to the supreme court,

New York county, in which case said board must be

joined as a necessary party. Such application shall

be in conformance with the civil practice law and

rules except that said board, or where applicable, the

charging party shall not be required to give any

undertaking or land and shall not be liable for any

damages or costs which may have been sustained by

reason of any injunctive relief order. If the board of

collective bargaining fails to act within ten days as

provided in this paragraph, the board of collective

bargaining, for purposes of review, shall be deemed

to have made a final order determining not to permit

the charging party to seek injunctive relief.

determines that a charging party has not made a

sufficient showing and that no petition to the

court is appropriate under paragraph (b) of this

subdivision, such determination shall be deemed a

final order and may be immediately reviewed

pursuant to article seventy-eight of the civil practice

law and rules upon petition by the charging party to

the supreme court, New York county.

(d) Injunctive relief may be granted by the court,

after hearing all parties, if it determines that there

is reasonable cause to believe an improper practice

has occurred and that it appears that immediate

and irreparable injury, loss or damage will result

thereby rendering a resulting judgment on the

merits ineffectual necessitating maintenance of, or

60a

return to, the status quo to provide meaningful

relief. Any injunctive relief granted by the court

shall expire upon decision of the board of collective

bargaining finding no improper practice to have

occurred or successful challenge of the said board's

decision pursuant to article seventy-eight of the civil

practice law and rules. The said board shall conclude

the hearing process and issue a decision on the

merits within sixty days after the imposition of such

injunctive relief unless mutually agreed by the

respondent and charging party.

(e) A decision on the merits of the improper practice

charge by the board of collective bargaining finding

an improper practice to have occurred shall continue

the injunctive relief until either: (i) the respondent

fails to appeal the decision and implements the

remedy, or (ii) the respondent successfully moves in

court, upon notice, to vacate or modify the injunctive

relief pursuant to provisions of the civil practice law

and rules.

(f) Any injunctive relief in effect pending a decision

by the board of collective bargaining on appeal: (i)

shall expire upon a decision by the said board

finding no improper practice to have occurred, of

which the said board shall notify the court

immediately, or (ii) shall remain in effect only to the

extent it implements any remedial order issued by

the said board of its decision, of which the said board

shall notify the court immediately.

(g) All matters in which the court has granted

injunctive relief upon petition by the charging party

pursuant to this subdivision shall be given preference in the scheduling, hearing and disposition over

all other matters before the said board. The said

board shall establish rules and regulations dealing

61a

with the implementation of this section including

time limits for its own actions.

(h) The appeal of any order granting, denying,

modifying or vacating injunctive relief ordered by

the court pursuant to this subdivision shall be made

in accordance with the provisions of article fifty-five

of the civil practice law and rules except that where

such injunctive relief is stayed pursuant to section

fifty-five hundred nineteen of the civil practice law

and rules, an appeal for removal of such stay may be

given preference in the same manner as provided in

rule fifty-five hundred twenty-one of the civil

practice law and rules.

(i) Nothing in this section shall be deemed to

eliminate or diminish any right that may exist

pursuant to any other law.

(j) The board of collective bargaining shall make

such rules and regulations as may be appropriate to

effectuate the purposes and provisions of this

subdivision.

6. Application. In applying this section, fundamental

distinctions between private and public employment

shall be recognized, and no body of federal or state law

applicable wholly or in part to private employment,

shall be regarded as binding or controlling precedent.

62a

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

————

Case No. 1:22-cv-321

————

AVRAHAM GOLDSTEIN; MICHAEL GOLDSTEIN;

FRIMETTE KASS-SHRAIBMAN; MITCHELL LANGBERT;

JEFFREY LAX; MARIA PAGANO,

Plaintiffs,

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.

(Hon. _________)

————

COMPLAINT

AND NOW come Plaintiffs Avraham Goldstein,

Michael Goldstein, Frimette Kass-Shraibman, Mitchell

Langbert, Jeffrey Lax, and Maria Pagano, by and

through their undersigned attorneys, and state the

following claims for relief against Defendants

63a

Professional Staff Congress/CUNY (“PSC”); the City

University of New York (“CUNY”); 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; the City of

New York (“City”); and Thomas P. DiNapoli, in his

official capacity as New York State Comptroller:

SUMMARY OF THE CASE

1. Plaintiffs are faculty of CUNY who strongly

object to being exclusively represented by PSC and

forced to associate with other employees within their

assigned bargaining unit. They object to being forced

to associate with PSC in any manner, to having PSC

speak for them in any manner, and to providing

support to PSC in any form.

2. Plaintiffs have all chosen to resign their memberships in PSC due to their opposition to its representation of them, based largely on its ideological

and political advocacy, which they abhor, as well as its

representation of them in their employment.

3. All but one of the plaintiffs are Jewish, and

several of them resigned from PSC following its

adoption in June 2021 of a “Resolution in Support of

the Palestinian People” (“Resolution”) that Plaintiffs

view as anti-Semitic, anti-Jewish, and anti-Israel.

Since the Resolution, PSC has continued to advocate

positions and take actions that Plaintiffs believe to be

anti-Semitic, anti-Jewish, and anti-Israel, in a manner

that harms the Jewish plaintiffs and singles them

out for opprobrium, hatred, and harassment based on

their religious, ethnic, and/or moral beliefs and identity.

64a

Because of this, they have no faith and confidence in

PSC’s ability to represent them as their exclusive,

fiduciary representative, and they desire to end such

forced representation.

4. Despite Plaintiffs’ resignations from membership

in PSC, Defendants PSC, CUNY, Wirenius, Townley,

and Zumbolo, acting in concert and under color of state

law, force all Plaintiffs to continue to utilize PSC as

their exclusive bargaining representative. Thus, under

color of state law, Plaintiffs are forced to remain part

of a bargaining unit that is represented exclusively by

PSC and are forced to associate with PSC and other

employees within the bargaining unit.

5. Plaintiffs bring this civil rights action pursuant

to 42 U.S.C. § 1983 for declaratory, injunctive, and

monetary relief to redress and to prevent the ongoing

deprivation of rights, privileges, and/or immunities

under the First and Fourteenth Amendments to the

United States Constitution caused by state statutes

and Defendants’ contracts, policies, and practices

that designate PSC as Plaintiffs’ exclusive bargaining

representative with their Employer, force Plaintiffs

into a defined bargaining unit with others who do not

share the same interests, and require some Plaintiffs

to continue to financially subsidize PSC’s speech even

though they have resigned their membership in the

union. PSC’s designation as exclusive bargaining

representative and Plaintiffs’ mandatory inclusion in

a bargaining unit violate Plaintiffs’ speech, petitioning,

and associational rights under the First Amendment.

JURISDICTION AND VENUE

6. This action arises under the Constitution of the

United States of America and the Federal Civil Rights

Act of 1871, 42 U.S.C. § 1983, to redress the depriva-

65a

tion, under color of state law, of Plaintiffs’ rights,

privileges, and immunities under the Constitution of

the United States, particularly the First and Fourteenth

Amendments thereto.

7. The Court has jurisdiction over Plaintiffs’ claims

pursuant to 28 U.S.C. § 1331, because their claims

arise under the Constitution of the United States, and

28 U.S.C. § 1343, because Plaintiffs seek relief under

42 U.S.C. § 1983.

8. This action is an actual controversy in which

Plaintiffs seek declarations of their rights under the

United States Constitution. Pursuant to 28 U.S.C.

§§ 2201 and 2202, this Court may declare plaintiffs’

rights and grant further necessary and proper relief,

including injunctive relief, pursuant to Federal Rule of

Civil Procedure 65.

9. Venue is proper in this Court pursuant to 28

U.S.C. § 1391(b), because one or more defendants are

domiciled in and operate or do significant business in

this judicial district. Additionally, many of Plaintiffs’

injuries and a substantial part of the events giving rise

to this action occurred in this judicial district.

PARTIES

10. Plaintiff Avraham Goldstein is a “public employee”

within the meaning of the Public Employees’ Fair

Employment Act, N.Y. Civ. Serv. Law, Article 14

(the “Taylor Law”), see N.Y. Civ. Serv. Law § 201.7

(McKinney 2020). He is employed full-time by CUNY

as an assistant professor of math at Borough of

Manhattan Community College. Professor Goldstein

is represented by PSC exclusively for purposes of

collective bargaining with CUNY. He was a member of

PSC but has not been a member since the date of his

resignation letter on August 2, 2021.

66a

11. Plaintiff Michael Goldstein is a “public employee”

within the meaning of the Taylor Law, see N.Y. Civ.

Serv. Law § 201.7. He is employed full-time by CUNY

as a Higher Education Officer and Adjunct Professor.

Professor Goldstein is represented by PSC exclusively

for purposes of collective bargaining with CUNY. He

was a member of PSC but has not been a member since

the date of his resignation letter on June 22, 2021.

12. Plaintiff Frimette Kass-Shraibman is a “public

employee” within the meaning of the Taylor Law, see

N.Y. Civ. Serv. Law § 201.7. She is employed full-time

by CUNY as a professor of accounting at Brooklyn

College. Professor Kass-Shraibman is represented by

PSC exclusively for purposes of collective bargaining

with CUNY. She was a member of PSC but has not

been a member since the date of her resignation letter

on September 17, 2021.

13. Plaintiff Mitchell Langbert is a “public employee”

within the meaning of the Taylor Law, see N.Y. Civ.

Serv. Law § 201.7. He is employed full-time by CUNY

as an associate professor of business at Brooklyn

College. Professor Langbert is represented by PSC

exclusively for purposes of collective bargaining with

CUNY. He was a member of PSC but has not been a

member since the date of his resignation letter on June

22, 2021.

14. Plaintiff Jeffrey Lax is a “public employee”

within the meaning of the Taylor Law, see N.Y. Civ.

Serv. Law § 201.7. He is employed full-time by CUNY

as a professor of business at Kingsborough College.

Professor Lax is represented by PSC exclusively for

purposes of collective bargaining with CUNY. He was

a member of PSC but has not been a member since the

date of his resignation letter on June 17, 2021.

67a

15. Plaintiff Maria Pagano is a “public employee”

within the meaning of the Taylor Law, see N.Y. Civ.

Serv. Law § 201.7. She is employed full-time by CUNY

as an associate professor at the New York City College

of Technology. Professor Pagano is represented by PSC

exclusively for purposes of collective bargaining with

CUNY but was not a member of PSC at any time

relevant to this Complaint.

16. Defendant PSC is an “employee organization”

within the meaning of the Taylor Law, see N.Y. Civ.

Serv. Law § 201.5. PSC and its affiliates represent over

30,000 faculty and staff at CUNY and the CUNY

Research Foundation, including both full-time and

part-time employees. PSC represents Plaintiffs, and

all those in their bargaining unit, exclusively for

purposes of collective bargaining with CUNY. PSC

maintains a place of business at 61 Broadway, 15th

Floor New York, New York and conducts its business

and operations in the Southern District of New York.

17. Defendant CUNY is a “government” or “public

employer” within the meaning of the Taylor Law, see

N.Y. Civ. Serv. Law § 201.6. CUNY recognizes PSC as

Plaintiffs’ exclusive representative pursuant to the

Taylor Law and pursuant to both its memorandum of

understanding (“MOA”) and collective bargaining

agreement (“CBA”) with PSC.

18. Defendant John Wirenius is Chairperson of the

New York Public Employee Relations Board (“PERB”).

In a certification order issued in 1972, PERB defined

the “instructional staff” bargaining unit that includes

Plaintiffs and certified PSC as the exclusive representative for that unit of more than 30,000 CUNY

instructional staff. Defendant Wirenius is sued in his

official capacity.

68a

19. Defendant Rosemary A. Townley is a Member of

PERB, which defined Plaintiffs’ bargaining unit and

certified PSC as the exclusive representative for

Plaintiffs’ bargaining unit. She is sued in her official

capacity.

20. Defendant Anthony Zumbolo is a Member of

PERB, which defined Plaintiffs’ bargaining unit and

certified PSC as the exclusive representative for Plaintiffs’

bargaining unit. He is sued in his official capacity.

21. Defendant City of New York is a “government”

or “public employer” within the meaning of the Taylor

Law, see N.Y. Civ. Serv. Law § 201.6. The City issues

wages to certain CUNY employees, including Plaintiffs

A. Goldstein, M. Goldstein, and Lax, and processes

payroll deductions of union dues and/or fees pursuant

to the requirements of the CBA and the Taylor Law.

22. Defendant Thomas P. DiNapoli, in his official

capacity as the New York State Comptroller, is

responsible for, among other things, issuing wages to

certain CUNY employees, including to Plaintiffs KassShraibman, Langbert, and Pagano. He oversees the

payroll system for the state, which includes processing

payroll deductions, including union dues and/or fees

deductions pursuant to the requirements of the CBA

and the Taylor Law. Mr. DiNapoli is sued in his official

capacity.

FACTUAL ALLEGATIONS

Plaintiffs Desire to End Association with PSC

23. Plaintiffs are all employed by CUNY within the

instructional staff bargaining unit that is exclusively

represented by PSC and are all former members of

PSC.

69a

24. Acting in concert under color of state law, CUNY

and PSC have entered into the MOA, CBA, and other

agreements that control the terms and conditions of

Plaintiffs’ employment. The CBA is attached hereto as

“Exhibit A,” and incorporated by reference herein.

The MOA is attached hereto as “Exhibit B,” and

incorporated by reference herein.

25. PSC is Plaintiffs’ exclusive representative under

state law—PERB certified PSC as the exclusive

representative for Plaintiffs’ bargaining unit in 1972—

and pursuant to Article 1 of the CBA between CUNY

and PSC.

26. PSC purports to represent over 30,000 employees,

the majority of which, on information and belief, are

included in Plaintiffs’ bargaining unit.

27. Plaintiffs have lost confidence in and become

alienated from PSC due to its political advocacy and

stated positions on Israel and involvement in international affairs, as well as the quality of PSC’s

representation, especially as to Plaintiffs, in the terms

and conditions of their employment.

28. Professor Avraham Goldstein is an observant

Orthodox Jew. He was born in the former Soviet Union,

where he and his family suffered from extreme antiSemitic and anti-Jewish abuse at the hands of the

Soviet authorities. Their request to leave the Soviet

Union was denied for 15 years, until in 1986 the

Soviet authorities permitted them to relocate to Israel.

Professor Goldstein is a citizen of the State of Israel,

he has friends and family residing there, and he is a

supporter of that country based on his religious and

moral beliefs. Professor Goldstein has felt marginalized

and ostracized by PSC because the union has made it

clear that Jews who support the Jewish homeland,

70a

the State of Israel, are not welcome. Since Zionism is

an integral component of Professor Goldstein’s Jewish

identity, the impact of PSC’s conduct has been to

marginalize and ostracize him on the basis of his

identity as a Jew. Professor Avraham Goldstein also

believes that his employment, economic, and career

interests as a full-time tenured faculty member often

conflict with the interest of others in the bargaining

unit, such as part-time adjunct faculty. He believes

that his inclusion in a bargaining unit with these other

groups, which greatly outnumber the full-time tenuretrack faculty, infringes on his employment interests

and that PSC’s rules give some of these other groups

more power to advance their interests, because of their

size, at the expense of the interests of the full-time

faculty.

29. Professor Michael Goldstein is a Jew and an

ardent Zionist. He bases his love of the State of Israel

and his Zionism on his belief in God and the Jewish

people. He has worked for CUNY for over 32 years,

and, combined with his parents, has over 100 years of

service to CUNY, including his father’s service as

Acting Chancellor of CUNY. Professor Goldstein has

experienced anti-Semitic and anti-Zionist attacks

from members of PSC, including what he sees as

bullying, harassment, destruction of property, calls for

him to be fired, organization of student attacks against

him, and threats against him and his family. He now

has a guard follow him everywhere he goes on campus.

Professor Goldstein has felt marginalized and ostracized

by PSC because the union has made it clear that Jews

who support the Jewish homeland, the State of Israel,

are not welcome. Since Zionism is an integral component

of Professor Goldstein’s Jewish identity, the impact of

PSC’s conduct has been to marginalize and ostracize

him on the basis of his identity as a Jew. Professor

71a

Goldstein resigned from PSC because he believes PSC

was behind the anti-Semitic and anti-Zionist attacks

against him on campus. He believes that PSC does not

represent Jewish and pro-Israel members of the

bargaining unit and instead works to eliminate them

from CUNY. He also believes PSC hurts some members of

the bargaining unit economically, does not offer the

same level of representation to Higher Education

Officers (“HEOs”), and prioritizes the pay of part-time

adjuncts and others over HEOs.

30. Professor Kass-Shraibman is an Orthodox Jew

and lifelong Zionist. She was born and still resides

in Brooklyn, New York. She and her family helped

raise funds for Israel before and during its War of

Independence in 1948 and during the Six-Day War in

1967. She hopes to emigrate to Israel after retiring

from CUNY. She believes that the PSC’s Resolution

and other positions and activities support those who

would destroy Israel and are antithetical to all she

believes in. Furthermore, she believes that the PSC’s

positions considering support of the “Boycott, Divestment,

and Sanctions” (“BDS”) movement and the current

Palestinian regime in the achievement of its stated

goals would bring death and destruction to her immediate and extended family living in Israel. Professor

Kass-Shraibman has felt marginalized and ostracized

by PSC because the union has made it clear that Jews

who support the Jewish homeland, the State of Israel,

are not welcome. Since Zionism is an integral component of Professor Kass-Shraibman’s Jewish identity,

the impact of PSC’s conduct has been to marginalize

and ostracize her on the basis of her identity as a Jew.

Professor Kass-Shraibman also believes that she and

her colleagues have been harmed economically by

PSC’s actions and inaction over the years. She believes

that instead of negotiating contracts on behalf of the

72a

CUNY faculty as it should have, PSC frequently acted

as a “social justice” agency instead of a labor union.

For example she believes that, instead of prioritizing

the pay of full-time faculty, PSC expended resources

advocating on behalf of teachers in Peru, graduate

students at various other universities and the socalled “Occupy Wall Street” movement.

31. Professor Langbert is a business professor, a

political libertarian, a Jew, and a Zionist. He has long

been opposed to PSC’s political and ideological activities

and causes. He has published op-eds and other writings

that questioned the political activities of PSC and its

leadership. Professor Langbert has also filed complaints

concerning the failure of PSC to adequately represent

business faculty, failure to represent the views of dues

payers who do not agree with the leadership’s political

speech and activities, and failure to represent Jews

like him who support Zionism and the State of Israel.

Professor Langbert has felt marginalized and ostracized

by PSC because he believes that the union has made

it clear that Jews who support the Jewish homeland,

the State of Israel, are not welcome. Since Zionism is

an integral component of Professor Langbert’s Jewish

identity, the impact of PSC’s conduct has been to

marginalize and ostracize him on the basis of his

identity as a Jew.

32. Professor Lax is an observant Orthodox Jew

who supports the State of Israel and believes in

biblically-based Zionism, as described in the book of

Genesis. Professor Lax resigned from PSC after 17

years of membership on June 17, 2021, due to EEOCsubstantiated claims that PSC discriminated against

him on his campus because he was a Zionist and

observant Jew, and because of PSC’s failure to represent

its Zionist members, as shown by the Resolution and

73a

similar actions. In a separate case brought by Professor

Lax, the EEOC issued a letter of determination that

CUNY and PSC leaders discriminated against him,

retaliated against him, and subjected him to a hostile

work environment on the basis of religion. PSC

members failed to accommodate Professor Lax by

holding at least one event on a Friday night, the

Jewish Sabbath, so he could not attend. The EEOC also

substantiated that PSC leaders excluded Professor Lax

and other observant or Zionist Jews from a powerful

faculty group called the Progressive Faculty Caucus.

Professor Lax has felt marginalized and ostracized by

PSC because the union has made it clear that Jews

who support the Jewish homeland, the State of Israel,

are not welcome. Since Zionism is an integral component

of Professor Lax’s Jewish identity, the impact of PSC’s

conduct has been to marginalize and ostracize him on

the basis of his identity as a Jew.

33. Professor Pagano resigned from PSC in approximately 2010, after PSC attempted to interfere with the

settlement of a grievance her retained attorney had

negotiated with CUNY, after PSC had refused to

handle that grievance. She has often disagreed with

positions PSC has taken in contract negotiations,

where it acts as her mandatory exclusive representative. She opposes PSC’s failure to negotiate adequate

raises for the faculty, and its adoption of compulsory

contributions for paid family leave insurance that she

does not desire and would not purchase on her own. In

recent years, Professor Pagano has become increasingly concerned over PSC’s political radicalization,

culminating in the adoption of the Resolution and

PSC’s continued defense of its involvement in political

activities following the Resolution. She would consider

choosing another union if she was not forced to

associate with PSC.

74a

34. Plaintiffs’ opposition to PSC’s political and

ideological positions crystalized in June 2021, when

PSC adopted the Resolution regarding what it termed

“the continued subjection of Palestinians to the statesupported displacement, occupation, and use of lethal

force by Israel,” and requiring chapter-level discussion

of possible support by PSC for the BDS movement. The

Resolution is attached hereto as “Exhibit C” and is

incorporated by reference herein.

35. Plaintiffs believe that this Resolution is openly

anti-Semitic and anti-Israel, as it attacks and applies

a double standard to the one Jewish nation in the

world, Israel, while ignoring every other nation.

36. In protest of PSC’s anti-Semitic and anti-Israel

statements, actions, and positions, particularly the

Resolution, Plaintiffs A. Goldstein, M. Goldstein,

Kass-Shraibman, Langbert, and Lax resigned their

memberships in PSC after the adoption of the Resolution.

37. Plaintiffs’ resignations, through correspondence

sent to Defendants PSC, CUNY, the City, and/or

DiNapoli, ended their memberships in PSC and

revoked the authorization for the continued deduction

of union dues from their wages.

38. Despite their resignations and revocations of

authorization, dues deductions continued from the

wages of Plaintiffs A. Goldstein, Kass-Shraibman, and

Langbert.

39. Plaintiff Pagano had already ended her membership in PSC years before PSC adopted the Resolution,

and she signed a resolution opposing PSC’s Resolution.

40. On information and belief, over 260 members of

PSC have resigned and revoked their authorizations

for dues deductions since PSC adopted the Resolution.

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41. In the months since the Resolution, PSC members

have held chapter-level discussions, as required by the

Resolution. These discussions encourage support for

the anti-Semitic and anti-Israel BDS movement among

rank-and-file members of PSC, who are Plaintiffs’

colleagues, as well as PSC officials. By ensuring that

the Resolution and the BDS movement’s goals would

be discussed over and over again at chapter meetings

across the CUNY campuses, PSC ensured that the

isolation, marginalization, harassment, and ridicule

experienced by the pro-Israel Zionist faculty would

continue throughout the academic year.

42. Plaintiffs strongly oppose the political positions

and speech of PSC, including the positions espoused in

the Resolution, and do not want to be associated with,

represented by, or linked to PSC in any way.

43. The Jewish Plaintiffs believe the Resolution,

and related conduct by PSC, sets them and their coreligionists apart and singles them out for disparate

treatment, opprobrium, and hostility, based solely

upon their religious, ethnic, and moral beliefs and

identity, including their support for Israel, the nationstate of the Jewish people. Due to PSC’s expressed

anti-Semitism and anti-Zionism, none of the Plaintiffs

believe PSC can serve as a fiduciary to represent them

fairly in negotiating their terms and conditions of

employment, or in any interactions with their Employer.

44. All Plaintiffs believe, based on past experiences

they have had with PSC’s poor representation of them

or refusal to represent them, along with their

opposition to PSC’s positions and speech, that PSC

could not and would not fairly represent them in

grievances, disciplinary matters, or other interactions

with their Employer.

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45. Plaintiffs oppose the ways in which PSC spends

members’ dues money, including, among other things,

its support for a political party known as the Working

Families Party.

46. Plaintiffs also oppose the ways in which PSC

represents them in the negotiation of their terms and

conditions of employment. Among other things, Plaintiffs

believe that PSC prioritizes the economic and employment interests of part-time adjunct professors and

other groups in the bargaining unit over their

interests as full-time faculty and/or staff of CUNY.

For example, PSC has prioritized securing health

insurance for part-time adjuncts over higher raises for

full-time faculty. Plaintiffs believe that PSC cannot

and does not fairly represent the wide variety of

positions and large numbers of employees who are

forced to associate within their bargaining unit. In

fact, PSC’s representation policies and practices are

performed to the detriment of Plaintiffs.

Plaintiffs Cannot End Association with PSC or the

Bargaining Unit

47. Although Plaintiffs have resigned from PSC and

want to have no connection with it, they are forced by

the Taylor Law, CBA, and MOA to accept and associate

with PSC as their exclusive representative with CUNY.

48. Although Plaintiffs’ interests in the terms and

conditions of their employment diverge from the

interests of others in their bargaining unit, they are

still forced to be in the bargaining unit and to associate

with PSC and tens of thousands of other instructional

staff of CUNY in the unit who do not share their same

economic interests, and who also do not share their

beliefs or are overtly hostile to them.

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49. Under New York law, a union may become public

employees’ exclusive representative for collective

bargaining purposes by recognition or certification.

A union so designated has exclusive legal authority

to speak for all employees in the bargaining unit,

irrespective of whether each individual employee

agrees to or desires such exclusive representation. N.Y.

Civ. Serv. Law § 204.

50. When a union has been certified or recognized

as the exclusive representative, the public employer is

required by law to negotiate only with that union

regarding the terms and conditions of employment for

the public employees the union exclusively represents.

N.Y. Civ. Serv. Law § 204.2. This requirement on the

public employer includes a “mutual obligation” to meet

at reasonable times and confer in good faith. N.Y. Civ.

Serv. Law § 204.3.

51. The Taylor Law requires that “[a] public employer

shall extend to an employee organization certified

or recognized pursuant to this article the following

rights: . . . (b) to membership dues deduction, upon

presentation of dues deduction authorization cards

signed by individual employees. . . .” N.Y. Civ. Serv. Law

§ 208.1.

52. The Taylor Law also provides that “[t]he right to

such membership dues deduction shall remain in full

force and effect until: (i) an individual employee

revokes membership in the employee organization in

writing in accordance with the terms of the signed

authorization.” N.Y. Civ. Serv. Law § 208.1.

53. The Taylor Law also limits the duties an

exclusive representative owes to any employees in its

bargaining unit who choose not to be union members.

The Taylor Law authorizes PSC, Plaintiffs’ exclusive

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representative, to treat Plaintiffs less favorably than

PSC members, solely because they have exercised

their constitutional rights to become or remain

nonmembers.

54. Specifically, the Taylor Law provides that

“[n]otwithstanding any law, rule or regulation to the

contrary, an employee organization’s duty of fair

representation to a public employee it represents but

who is not a member of the employee organization

shall be limited to the negotiation or enforcement of

the terms of an agreement with the public employer.”

N.Y. Civ. Serv. Law § 209-a(2).

55. In addition, the Taylor Law specifically provides,

No provision of this article shall be construed

to require an employee organization to provide representation to a non-member:

(i) during questioning by the employer,

(ii) in statutory or administrative proceedings or to enforce statutory or regulatory

rights, or

(iii) in any stage of a grievance, arbitration

or other contractual process concerning the

evaluation or discipline of a public employee

where the non-member is permitted to

proceed without the employee organization

and be represented by his or her own

advocate.

N.Y. Civ. Serv. Law § 209-a(2).

56. Finally, the Taylor Law also provides: “Nor shall

any provision of this article prohibit an employee

organization from providing legal, economic or jobrelated services or benefits beyond those provided in

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the agreement with a public employer only to its

members.” N.Y. Civ. Serv. Law § 209-a(2).

57. PSC was certified by the New York State Public

Employment Relations Board on June 16, 1972, to

represent the “instructional staff” of CUNY.

58. Pursuant to state law, the certification order, the

CBA, and the MOA, the CUNY instructional staff,

including Plaintiffs, are forced to be included in the

instructional staff bargaining unit and be exclusively

represented by PSC.

59. Article 4 of the CBA grants certain rights to

PSC, including “exclusive check-off of annual PSC

dues.” Ex. A, art. 4.1.

60. Due to its status as exclusive representative for

the instructional staff bargaining unit, PSC represents

30,000 CUNY employees, which it touts on its website.

PSC represents these employees regardless of whether

the employees are union members and regardless of

whether these employees agree with PSC’s speech and

its positions.

61. No Plaintiff has ever participated in a vote

to certify or recognize PSC as his or her exclusive

representative.

62. Pursuant to state law, the duty of fair representation that PSC owes to Plaintiffs and other

nonmembers is limited to “the negotiation or enforcement of the terms of an agreement with the public

employer,” and PSC has no duty to represent Plaintiffs

in any of the situations designated in Section 209-a of

the Taylor Law. See also paragraphs 53–56.

63. Plaintiffs believe that PSC does not and cannot

represent their interests, beliefs, or needs related to

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the terms and conditions of their employment or in

interactions with their Employer.

64. Plaintiffs’ forced inclusion in their bargaining

unit does a disservice to them and causes them to

be disadvantaged in their terms and conditions of

employment and in their relations with their fellow

employees and the general public.

65. Plaintiffs object to being forced into a bargaining unit with other CUNY employees whose interests

in terms and conditions of employment differ from

their own.

66. Plaintiffs strongly disagree with PSC on many

issues, including those related to the terms and conditions of employment and to PSC’s political positions,

advocacy, and public speech.

67. Plaintiffs believe that PSC’s actions, including

the Resolution, subject the Jewish Plaintiffs to hostility in

the workplace and in the general public, and single

them out for opprobrium, discrimination, and hatred

based upon their religious, ethnic, and/or moral beliefs

and identity.

68. Due to PSC’s status as Plaintiffs’ exclusive

representative, Plaintiffs have no ability to represent

themselves in connection with their terms and conditions

of employment with their Employer or to associate

with a different collective bargaining representative of

their choosing. Under New York law, Plaintiffs are

forced to accept PSC’s representation even though

they vehemently disagree with its speech, actions, and

positions in negotiations and elsewhere.

69. PSC’s statutory entitlement to speak and bargain

exclusively with CUNY as Plaintiffs’ sole and mandatory

representative deprives Plaintiffs of their ability to

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speak and bargain with CUNY regarding their terms

and conditions of employment, both individually and

through other associations they might choose.

70. Plaintiffs do not want to be associated with PSC

in any way, including having PSC as their exclusive

representative or through forced financial support of

PSC or its affiliates.

71. Plaintiffs do not want to be associated with all

members of their bargaining unit.

Certain Plaintiffs Cannot End Financial Support of

PSC

72. Pursuant to the CBA, the MOA, state law, and/or

other agreements between Defendants, the City of

New York, through its Office of Payroll Administration

(“OPA”), oversees or oversaw the deduction of union

dues and/or fees from Plaintiff A. Goldstein for PSC,

and transmits or transmitted them to PSC.

73. Pursuant to the CBA, the MOA, state law, and/or

other agreements between Defendants, Defendant

DiNapoli oversees or oversaw the deduction of union

dues and/or fees from Plaintiffs Kass-Shraibman and

Langbert for PSC and transmits or transmitted them

to PSC.

74. The City of New York and Defendant DiNapoli

have denied requests of Plaintiffs and other CUNY

employees to end union dues deductions from their

wages unless authorized by PSC.

75. After Plaintiff A. Goldstein resigned his union

membership, the City continued to deduct union dues

from his wages.

76. After Plaintiffs Kass-Shraibman and Langbert

resigned their union memberships, Defendant DiNapoli

continued to deduct union dues from their wages.

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77. Since the resignations of Plaintiffs A. Goldstein,

Kass-Shraibman, and Langbert, the City and Defendant

DiNapoli transmitted and/or continues to transmit

union dues deducted from their wages to PSC.

78. Since the resignations of Plaintiffs A. Goldstein,

Kass-Shraibman, and Langbert, PSC has continued to

accept union dues deducted from their wages.

79. Acting in concert under color of state law,

Defendants PSC and the City or DiNapoli have taken

and continue to take and/or have accepted and

continue to accept union dues from certain Plaintiffs’

wages as a condition of employment pursuant to state

law, the CBA, the MOA, and other agreements

between them, and/or their joint policies and practices.

80. Defendants PSC and the City or DiNapoli have

taken and continue to take and have accepted and

continue to accept union dues from Plaintiffs’ wages

even though the seizure of union dues from their

wages was and is against Plaintiffs’ wills and without

their consent.

81. Plaintiffs object to being forced to fund PSC,

including any of its speech and activities, for any

purpose.

CLAIMS FOR RELIEF

COUNT ONE

Compelled Association with Exclusive Representative

(Violation of 42 U.S.C. § 1983 and the First and

Fourteenth Amendments to the

United States Constitution)

82. Plaintiffs re-allege and incorporate by reference

all allegations contained in the foregoing paragraphs

of this Complaint as if fully set forth herein.

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83. The First Amendment protects “[t]he right to

eschew association for expressive purposes,” Janus v.

AFSCME, Council 31, 138 S. Ct. 2448, 2463 (2018),

because the “[f]reedom of association . . . plainly

presupposes a freedom not to associate.” Roberts v.

United States Jaycees, 468 U.S. 609, 623 (1984).

84. “[M]andatory associations are permissible only

when they serve a ‘compelling state interes[t] . . . that

cannot be achieved through means significantly less

restrictive of associational freedoms.’” Knox v. SEIU,

Loc. 1000, 567 U.S. 298, 310 (2012) (alterations in

original) (quoting Roberts, 468 U.S. at 623).

85. In the context of public-sector unions, the Supreme

Court has recognized that “[d]esignating a union as

the employees’ exclusive representative substantially

restricts the rights of individual employees. Among

other things, this designation means that individual

employees may not be represented by any agent other

than the designated union; nor may individual

employees negotiate directly with their employer.”

Janus, 138 S. Ct. at 2460. Indeed, such compelled

union representation “extinguishes the individual

employee’s power to order his own relations with his

employer.” NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.

175, 180 (1967).

86. The duty of fair representation “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, 138 S. Ct. at 2469.

87. PSC’s status as exclusive representative compels

Plaintiffs to associate with PSC, and to therefore be

associated with PSC’s speech and PSC positions with

which Plaintiffs vehemently disagree and that they

believe to be anti-Semitic and anti-Israel.

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88. PSC’s status as exclusive representative compels

Plaintiffs to speak and to petition the government

because it authorizes PSC to speak for Plaintiffs and

to petition the government for Plaintiffs.

89. PSC’s status as exclusive representative attributes

PSC’s speech and petitioning to Plaintiffs.

90. PSC’s status as exclusive representative diminishes

Plaintiffs’ own speech and petitioning.

91. PSC’s status as exclusive representative restricts

Plaintiffs’ ability to associate, or not to associate, with

a labor organization and with other members of the

bargaining unit.

92. PSC’s status as exclusive representative carries

with it only a limited duty to fairly represent Plaintiffs

and other nonmembers under the Taylor Law, which

exacerbates the associational and other harms Plaintiffs

suffer as a result of being compelled to accept PSC as

their exclusive representative.

93. Defendants PSC, CUNY, Wirenius, Townley, and

Zumbolo, by compelling Plaintiffs to accept PSC as

their exclusive representative, have deprived and are

depriving Plaintiffs of their First Amendment rights to

free speech and association, as secured against state

infringement by the Fourteenth Amendment to the

United States Constitution and 42 U.S.C. § 1983.

94. Section 204 of the Taylor Law and the CBA are

unconstitutional under the First and Fourteenth

Amendments to the Constitution of the United States

to the extent they authorize and empower PSC to act

as Plaintiffs’ exclusive representative.

95. Section 204 of the Taylor Law’s provision of

exclusive representation is unconstitutional under the

First and Fourteenth Amendments to the Constitution

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of the United States because Section 209-a of the

Taylor Law limits the duty of fair representation that

PSC owes to Plaintiffs.

96. As a direct result of the concerted actions of

Defendants PSC, CUNY, Wirenius, Townley, and

Zumbolo, taken pursuant to state law, the certification

order, CBA, MOA, and/or other agreements between

Defendants, and their joint policies and practices,

Plaintiffs are suffering irreparable harm, damage, and

injury inherent in the violation of First and Fourteenth

Amendment rights, for which there is no adequate

remedy at law.

97. If not enjoined by this Court, Defendants PSC,

CUNY, Wirenius, Townley, and Zumbolo and/or their

agents will continue to effect the aforementioned deprivations and abridgments of Plaintiffs’ constitutional

rights, thereby causing them to suffer irreparable

harm for which there is no adequate remedy at law.

COUNT TWO

Compelled Association with Bargaining Unit

(Violation of 42 U.S.C. § 1983 and the First and

Fourteenth Amendments to the

United States Constitution)

98. Plaintiffs re-allege and incorporate by reference

all allegations contained in the foregoing paragraphs

of this Complaint as if fully set forth herein.

99. Under New York law, and specifically Section

204 of the Taylor Law, PERB, through Defendants

Wirenius, Townley, and Zumbolo, and/or their predecessors, issued the certification order that defined the

“instructional staff” bargaining unit at CUNY and

designated PSC as the exclusive representative for

that unit.

86a

100. Because Plaintiffs’ positions are defined as

“instructional staff” under the certification order and

the CBA and/or MOA, it is a term and condition of

employment for Plaintiffs that they must be in the

bargaining unit with tens of thousands of other CUNY

employees, regardless of whether they desire to be

included or whether they have shared economic, political,

or employment interests with other employees in the

unit.

101. Because Plaintiffs’ positions are defined as

“instructional staff” under the certification order and

the CBA and/or MOA, as required by the Taylor Law,

only PSC may negotiate with CUNY regarding the

terms and conditions of Plaintiffs’ employment.

102. PSC’s status as exclusive representative of

Plaintiffs’ bargaining unit compels Plaintiffs to associate

with other employees within the bargaining unit and

restricts their ability not to associate with other

employees in the bargaining unit.

103. Plaintiffs oppose being forced to associate with

other employees within the bargaining unit who do not

share their political views and who espouse views

Plaintiffs believe to be anti-Semitic or anti-Israel.

104. Plaintiffs also oppose being forced into the

same bargaining unit with CUNY instructional staff,

such as part-time adjuncts, whose employment interests

diverge from their own.

105. Defendants PSC, CUNY, Wirenius, Townley,

and Zumbolo, by compelling Plaintiffs to associate

with employees in the bargaining unit whose views

they oppose and whose interests are not aligned with

Plaintiffs, have deprived and are depriving Plaintiffs

of their First Amendment rights to free speech and

association, as secured against state infringement by

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the Fourteenth Amendment to the United States

Constitution and 42 U.S.C. § 1983.

106. As a direct result of the concerted actions of

Defendants PSC, CUNY, Wirenius, Townley, and

Zumbolo, taken pursuant to state law, the CBA, MOA,

the certification order, and/or other agreements between

Defendants, and their joint policies and practices,

Plaintiffs are suffering irreparable harm, damage, and

injury inherent in the violation of First and Fourteenth

Amendment rights, for which there is no adequate

remedy at law.

107. If not enjoined by this Court, Defendants PSC,

CUNY, Wirenius, Townley, and Zumbolo and/or their

agents will continue to effect the aforementioned

deprivations and abridgments of Plaintiffs’ constitutional rights, thereby causing them to suffer irreparable

harm for which there is no adequate remedy at law.

COUNT THREE

Compelled Financial Support of Union Speech by

Plaintiffs A. Goldstein, Kass-Shraibman, and

Langbert (Violation of 42 U.S.C. § 1983 and the

First and Fourteenth Amendments to the

United States Constitution)

108. Plaintiffs A. Goldstein, Kass-Shraibman, and

Langbert re-allege and incorporate by reference all

allegations contained in the foregoing paragraphs of

this Complaint as if fully set forth herein.

109. The United States Supreme Court held that

the First Amendment to the Constitution of the United

States prohibits the government and unions from

compelling public employees to pay dues or fees to a

union as a condition of employment. See Janus, 138

S. Ct. at 2486.

88a

110. The First Amendment requires that “[n]either

an agency fee nor any other payment to the union may

be deducted from a nonmember’s wages, nor may any

other attempt be made to collect such a payment,

unless the employee affirmatively consents to pay.”

Janus, 138 S. Ct. at 2486.

111. There is no state interest, compelling or otherwise, justifying the state’s requirement that individuals remain members of or provide financial support to

a private organization, including a labor organization,

for any length of time.

112. Sections 201 and 208 of the Taylor Law

authorize Defendants to compel employees to continue

to financially support a union even after they provide

notice that they resigned their union membership and

want to end financial support of the union.

113. Defendants PSC and the City or DiNapoli

compelled these Plaintiffs to financially support PSC

and its speech, as nonmembers and over their objections, by seizing payments for PSC from these

Plaintiffs’ wages after they provided notice that they

resigned their membership in PSC and did not consent

to union dues deductions.

114. Defendants PSC and the City or DiNapoli, by

compelling these Plaintiffs to financially support PSC

and its speech as nonmembers and over their

objections, deprived these Plaintiffs of their First

Amendment rights to free speech and association, as

secured against state infringement by the Fourteenth

Amendment to the United States Constitution and 42

U.S.C. § 1983.

115. At no time did Plaintiffs A. Goldstein, KassShraibman, and Langbert waive their First Amendment

right to refrain from financially supporting PSC and

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its speech. A valid waiver of constitutional rights

requires clear and compelling evidence that a putative

waiver was voluntary, knowing, and intelligent and

that enforcement of the waiver is not against public

policy. Defendants cannot prove, by clear and compelling evidence, that these Plaintiffs voluntarily, knowingly,

and intelligently waived their First Amendment right

or that enforcement of any such waiver is consistent

with public policy.

116. Sections 201 and 208 of the Taylor Law are

unconstitutional under the First and Fourteenth

Amendments to the Constitution of the United States

to the extent they authorize Defendants PSC and the

City or DiNapoli to compel public employees to

continue to financially support PSC and its speech

over their objections and after they resigned their

union membership.

117. As a direct result of the concerted actions of

Defendants PSC, the City, and/or DiNapoli, taken

pursuant to state law, the CBA, MOA, and/or other

agreements between Defendants, and their joint

policies and practices, these Plaintiffs are in imminent

danger of suffering irreparable harm, damage, and

injury inherent in the violation of First and Fourteenth Amendment rights, for which there is no

adequate remedy at law.

118. If not enjoined by this Court, Defendants

and/or their agents and officials will continue to effect

the deprivations and abridgments of these Plaintiffs’

constitutional rights, thereby causing irreparable

harm, damage, and injury for which there is no

adequate remedy at law.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that this Court order

the following relief:

A. Declaratory: A judgment based upon the actual,

current, and bona fide controversy between the parties

as to the legal relations among them, pursuant to 28

U.S.C. § 2201 and Federal Rule of Civil Procedure 57,

declaring that:

i. the certification and recognition of PSC as

Plaintiffs’ exclusive representative by Defendants

PSC, CUNY, Wirenius, Townley, and Zumbolo,

pursuant to the Taylor Law, CBA, and MOA violate

Plaintiffs’ First Amendment rights of free speech

and free association and are unconstitutional;

ii. Defendants PSC, CUNY, Wirenius, Townley,

and Zumbolo violate Plaintiffs’ First Amendment

rights of free speech and free association by compelling them to associate with other employees in the

bargaining unit for purposes of speech and expressive activities;

iii. Section 204 of the Taylor Law is unconstitutional under the First Amendment to the United

States Constitution to the extent that it requires or

authorizes PSC to be Plaintiffs’ exclusive representative and compels Plaintiffs to associate with

other employees in the bargaining unit for purposes

of speech and expressive activities; and

iv. any taking of union dues from any Plaintiffs

after their resignation of membership in PSC violates

those Plaintiffs’ rights under the First and Fourteenth

Amendments of the United States Constitution, and

that any provisions of the Taylor Law, the CBA

and/or MOA, other agreements between Defendants,

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and/or any other purported authorizations that

allow or require such deductions of union dues from

Plaintiffs’ wages are unconstitutional.

B. Injunctive: A permanent injunction enjoining

Defendants, their officers, employees, agents, attorneys,

and all others acting in concert with them, from:

i. engaging in any of the activities listed in Part A

above that the Court declares illegal;

ii. certifying or recognizing PSC, or any other

union, as Plaintiffs’ exclusive representative without

their consent; and

iii. enforcing any provisions in the Taylor Law, the

CBA or MOA, other agreements between Defendants,

and/or Defendants’ policies and practices that require

Plaintiffs to provide financial support to PSC.

C. Monetary: A judgment against Defendants PSC,

CUNY, and the City, awarding Plaintiffs nominal

and compensatory damages, including but not limited

to the dues seized from the wages of Plaintiffs A.

Goldstein, Kass-Shraibman, and Langbert after they

resigned their membership in PSC and revoked their

dues deduction authorizations, for the injuries sustained

as a result of Defendants’ unlawful interference with

and deprivation of their constitutional and civil rights,

plus interest thereon, and such amounts as principles

of justice and compensation warrant.

D. Attorneys’ Fees and Costs: A judgment awarding

Plaintiffs their costs and reasonable attorneys’ fees

under 42 U.S.C. § 1988.

E. Other: Such other and further relief as the Court

may deem just and proper.

Dated: January 12, 2022

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Respectfully submitted,

s/ Nathan J. McGrath

Nathan J. McGrath*

Email: njmcgrath@fairnesscenter.org

Danielle R. Acker Susanj*

Email: drasusanj@fairnesscenter.org

THE FAIRNESS CENTER

500 North Third Street, Suite 600B

Harrisburg, Pennsylvania 17101

Telephone: 844.293.1001

Facsimile: 717.307.3424

Milton L. Chappell*

Email: mlc@nrtw.org

William L. Messenger*

Email: wlm@nrtw.org

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

Telephone: 703.321.8510

Facsimile: 703.321.9319

Attorneys for Plaintiffs

*motions for admission pro hac vice

to be filed

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Exhibit C

PSC’s Resolution in Support of the Palestinian People

Resolution in Support of the Palestinian People

June 10, 2021

Whereas, as an academic labor union committed

to anti-racism, academic freedom, and international

solidarity among workers, the PSC-CUNY cannot be

silent about the continued subjection of Palestinians

to the state-supported displacement, occupation, and

use of lethal force by Israel; and

Whereas, beginning on May 15, 2021, the escalating

violence against Palestinians in East Jerusalem and

Gaza killed hundreds of Palestinians, injured thousands

more, and destroyed entire neighborhoods, including

hospitals, schools, and residences; and

Whereas, on May 18, 2021, Palestinian workers

across the region staged a general “strike for dignity”

as a demonstration of unity and support for the

residents of targeted communities; and

Whereas, Israel’s pattern and practice of dispossession and expansion of settlements, dating back to its

establishment as a settler colonial state in 1948, has

been found to be illegal under international law,

international human rights organizations such as

Human Rights Watch and B’Tselem have designated

these practices of Israel as “apartheid” and a regime of

legalized racial discrimination perpetrated against the

Palestinian people; and the International Criminal

Court has opened an investigation into these practices;

and

Whereas, the PSC-CUNY condemns racism in all

forms, including anti-Semitism, and recognizes that

94a

criticisms of Israel, a diverse nation-state, are not

inherently anti-Semitic; and

Whereas, state-sponsored policies of settler colonialism

link the Palestinian struggle for self-determination to

the struggles of Indigenous people and people of color

in the United States; and

Whereas, since World War II, Israel has been the

largest overall recipient of U.S. foreign aid, including

$3.8 billion in 2020, the vast majority of which was

military assistance; and

Whereas, by failing to challenge the U.S. government’s support for Israeli expansionism and violent

incursions in the occupied territories, U.S. labor

organizations have largely given approval to these

policies; and

Whereas, in 2016, the PSC-CUNY “Resolution on

the Freedom of Speech and Assembly for All Faculty,

Staff and Students at the City University of New York”

affirmed the right of faculty, staff, and students to

advocate for campaigns of boycott, divestment, and

sanctions without penalty, as protected freedom of

speech; therefore be it

RESOLVED, that the PSC-CUNY condemns the

massacre of Palestinians by the Israeli state; and be it

further

RESOLVED, that in fall 2021, the PSC-CUNY

facilitate discussions at the chapter level of the

content of this resolution and consider PSC support of

the 2005 call for Boycott, Divestment, and Sanctions

(BDS)—a movement launched by 170 Palestinian

unions, refugee networks, women’s organizations,

professional associations and other Palestinian civil

society organizations, which calls on “people of

95a

conscience in the international community” to act as

they did against apartheid South Africa “in the spirit

of international solidarity, moral consistency and

resistance to injustice and oppression”—and report

back on these conversations to the Delegate Assembly

by the end of 2021; and be it further

RESOLVED, that the PSC-CUNY calls on the

administration of U.S. President Joe Biden to stop all

aid funding human rights violations and an occupation

that is illegal under international law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.