Amicus Curiae Brief — Avraham Goldstein, et al., Petitioners v. Professional Staff Congress/CUNY, et al.

No. 24-71

IN THE

AVRAHAM GOLDSTEIN; MICHAEL GOLDSTEIN; FRIMETTE

KASS-SHRAIBMAN; MITCHELL LANGBERT; JEFFREY LAX;

MARIA PAGANO,

Petitioners,

V.

PROFESSIONAL STAFF CONGRESS/CUNY; CITY

UNIVERSITY OF NEW YORK; JOHN WIRENIUS, in his

official capacity as chairperson of the New York

Public Employee Relations Board; ROSEMARY A.

TOWNLEY, in her official capacity as member of the

New York Public Employee Relations Board;

ANTHONY ZUMBOLO, in his official capacity as

Member of the New York Public Employee Relations

Board; CITY OF NEW YORK; THOMAS P. DINAPOLI, in

his official capacity as New York State Comptroller,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF RICHARD J. PELTZ-STEELE AS

AMICUS CURIAE SUPPORTING

PETITIONERS

August 22, 2024

Jeffrey M. Schwab

Counsel of Record

Liberty Justice Center

7500 Rialto Blvd.

Suite 1-250

Austin, Texas 78735

512-481-4400

jschwab@ljc.org

Counsel for Amicus Curiae

i

Question Presented

The State of New York is prohibiting several

professors, all but one of whom are Jews, from

dissociating themselves from a union’s

representation to protest its anti-Semitic and antiIsrael conduct and other expressive activities. The

question presented is:

Whether it violates the First Amendment for a

state to prohibit individuals from dissociating from a

union’s representation to protest that union’s

expressive activities?

ii

Table of Contents

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

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

Interest of the Amici Curiae ........................................ 1

Summary of Argument ................................................. 2

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

I.

State exclusive representative laws

compel government employees to

associate with a union in violation of

their First Amendment rights to free

speech and freedom of association ................... 3

II.

No compelling interests justify the

infringement of First Amendment rights

created by laws providing for exclusive

representation of public sector unions ............. 8

A.

“Labor peace” is not a compelling state

interest justifying exclusive

representation. ............................................. 8

B.

The government employer’s convenience

is not a compelling interest justifying

exclusive representation. ........................... 12

III.

The lower courts have misapplied

Knight in upholding state-compelled

union exclusive representative

schemes as consistent with the First

Amendment. ............................................... 15

Conclusion ................................................................... 19

iii

Table of Authorities

Cases

14 Penn Plaza LLC v. Pyett, 556 U.S. 247

(2009)........................................................................... 5

Abood v. Detroit Bd. of Educ., 431 U.S. 209

(1977)........................................................ 4, 10, 13, 17

Adams v. Teamsters Local 429, No. 20-1824,

2022 U.S. App. LEXIS 1615 (3d Cir. Jan.

20, 2022).................................................................... 16

Akers v. Md. State Educ. Ass’n, 990 F.3d 375

(4th Cir. 2021)........................................................... 16

Akers v. Md. State Educ. Ass’n, 376 F. Supp.

3d 563 (D. Md. Apr. 18, 2019) ................................... 9

ALPA v. O’Neill, 499 U.S. 65 (1991) ........................... 4

Am. Commc’ns Ass’n v. Douds, 339 U.S. 382

(1950)........................................................................... 5

Bennett v. AFSCME Council 31, 991 F.3d 724

(7th Cir. 2021)........................................................... 16

Boy Scouts of Am. v. Dale, 530 U.S. 640

(2000)........................................................................... 7

Chicago Teachers Union v. Hudson, 475 U.S.

292 (1986) ................................................................. 17

Elrod v. Burns, 427 U.S. 347 (1976) ........................... 7

Ford Motor Co. v. Huffman, 345 U.S. 330

(1953)........................................................................... 4

Harris v. Quinn, 573 U.S. 616 (2014) ........... 2, 6, 8, 11

Hendrickson v. AFSCME Council 18, 992

F.3d 950 (10th Cir. 2021) ......................................... 16

iv

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp., 515 U.S. 557 (1995) .................................... 7, 19

Janus v. AFSCME, Council 31, 585 U.S. 878

(2018)............................ 2, 3, 6, 8, 9, 10–11, 12, 13, 14

Knight v. Minn. Cmty. Coll. Faculty Ass’n,

571 F. Supp. 1 (D. Minn. 1982) ............................... 17

Knox v. SEIU, Local 1000, 567 U.S. 298,

(2012).......................................................... 2, 4, 6, 7, 8

Mentele v. Inslee, 916 F.3d 783 (9th Cir. 2019)..... 9, 16

Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241 (1974) ......................................................... 19

Minnesota State Board for Community

Colleges v. Knight, 465 U.S. 271

(1984)........................................................ 2, 15, 16, 17

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

175 (1967) ............................................................... 4, 5

NLRB. v. Jones & Laughlin Steel Corp., 301

U.S. 1 (1937) ............................................................. 10

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

518 U.S. 712, 714–15 (1996) ..................................... 7

Pacific Gas & Elec. Co. v. Public Util.

Comm’n of Cal., 475 U.S. 1 (1986).......................... 19

Peltz-Steele v. UMass Fac. Fed’n, 60 F.4th 1

(1st Cir. 2023) ............................................................. 1

Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37 (1983) ..................................... 9–10

Plyler v. Doe, 457 U.S. 202 (1982) ............................. 14

Police Dep’t of Chicago v. Mosley, 408 U.S. 92

(1972)......................................................................... 13

v

Reisman v. Associated Foes. of Univ. of Me.,

939 F.3d 409 (1st Cir. 2019) .................................... 16

Reisman v. Associated Faculties of the Univ.

of Me., 356 F. Supp. 3d 173 (D. Me. 2018) ............... 9

Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781

(1988)......................................................................... 12

Roberts v. United States Jaycees, 468 U. S.

609 (1984) ............................................................... 2, 7

Romer v. Evans, 517 U.S. 620 (1996) .................. 13–14

Rumsfeld v. Forum for Academic and

Institutional Rights, Inc., 547 U.S. 47

(2006)......................................................................... 18

Stanley v. Illinois, 405 U.S. 645 (1972) .................... 13

Steele v. Louisville & Nashville Ry., 323 U.S.

192 (1944) ................................................................... 4

Sweeney v. Pence, 767 F.3d 654 (7th Cir.

2014) ............................................................................ 4

Tashjian v. Republican Party, 479 U.S. 208

(1986)......................................................................... 13

Teamsters Local 391 v. Terry, 494 U.S. 558

(1990)........................................................................... 4

Thompson v. Marietta Educ. Ass’n, 972 F.3d

809 (6th Cir. 2020) ................................................... 16

Thompson v. Marietta Educ. Ass’n, No. 2:18cv-628, 2019 U.S. Dist. LEXIS 206804 (S.D.

Ohio Nov. 26, 2019) .................................................... 9

Uradnik v. Inter Faculty Org., 2 F.4th 722,

725 (8th Cir. 2021) ................................................... 16

vi

Uradnik v. Inter Faculty Org., No. 18-1895,

2018 U.S. Dist. LEXIS 165951 (D. Minn.

Sep. 27, 2018) ............................................................. 9

Vaca v. Sipes, 386 U.S. 171 (1967) .............................. 5

Wallace Corp. v. NLRB, 323 U.S. 248 (1944) ............. 4

W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624,

633 (1943) ................................................................... 6

Statutes

N.Y. Civ. Serv. Law § 204 ............................................. 3

Other Authorities

Catherine Fisk & Xenia Tashlitsky, Imagine

a World Where Employers are Required to

Bargain with Minority Unions, 27 ABA

JOURNAL LAB. & EMP. LAW 1 (2011) ........................ 14

“Chicago Park District Has Reached Deal With

24 of 25 Unions; Remaining Union Has

Served Strike Notice,” CBS-2 (Oct. 2, 2019).......... 14

Mark Harcourt, et al., US Union Revival,

Minority Unionism and Inter-Union Conflict,

56 J. of Industrial Relations 653 (2014)................. 11

Transcript of Oral Argument at 17, Harris v.

Quinn, 573 U.S. 616 (2014) (No. 11-681) ............... 19

U.S. Dep’t of Labor, “Labor Union Mergers

and Affiliations,” (2019),

https://www.dol.gov/olms/regs/compliance/c

atips/CompTip_Mergers_Affiliations_2019.

pdf .............................................................................. 11

1

Interest of the Amicus Curiae1

Richard Peltz-Steele is Chancellor Professor at the

University of Massachusetts School of Law at

Dartmouth, where he teaches torts and media-related

topics. His research interests include civil and human

rights and freedom of expression, which have instilled

in him a strong sense of the importance of First

Amendment values.

Professor Peltz-Steele brought a lawsuit

challenging a Massachusetts law that required him,

as a condition of his employment at UMass Law

School, to accept UMass Faculty Federation, Local

1895, American Federation of Teachers, AFL-CIO as

his exclusive bargaining representative for all terms

and conditions of his employment, even though he is

not a union member. Peltz-Steele v. UMass Fac. Fed’n,

60 F.4th 1 (1st Cir. 2023), cert. denied, 143 S. Ct. 2614

(2023). In particular, Professor Peltz-Steele objected

to the way the union had negotiated a decrease in

compensation, rather than laying off employees,

during the COVID-19 pandemic, which resulted in a

cut of his compensation by about 12%.

Professor Peltz-Steele files this amicus brief

because he believes that he and other government

employees should not be compelled to associate with

unions of which they are not members.

1 Rule 37 statement: No counsel for any party authored any part

of this brief, and no person or entity other than Amici funded its

preparation or submission. Counsel for both Petitioners and

Respondents received notice more than 10 days before its filing

that Amicus intended to file this brief.

2

Summary of Argument

This Court has on at least three recent occasions

recognized that schemes compelling public-sector

employees to associate with labor unions impose a

“significant impingement” on those employees’ First

Amendment rights. Knox v. SEIU, Local 1000, 567

U.S. 298, 310–11 (2012); Harris v. Quinn, 573 U.S.

616, 647 (2014); Janus v. AFSCME, Council 31, 585

U.S. 878, 924 (2018). Most recently, in Janus, this

Court recognized that a state’s appointment of a labor

union to speak for its employees as their exclusive

representative constitutes “a significant impingement

on associational freedoms that would not be tolerated

in other contexts.” 585 U.S. at 893. These “exclusive

bargaining” schemes cannot be squared with the

Supreme Court’s First Amendment jurisprudence.

The First Amendment protects “[t]he right to eschew

association for expressive purposes,” id. at 892, and

“[f]reedom of association . . . plainly presupposes a

freedom not to associate.” Roberts v. United States

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

In upholding this arrangement, the courts below

believed themselves bound by this Court’s decision in

Minnesota State Board for Community Colleges v.

Knight, 465 U.S. 271 (1984), which they held stands

for the proposition that exclusive bargaining schemes

are constitutional. But Knight did not consider a

compelled-speech or compelled-association challenge

to exclusive-bargaining schemes, as this case does.

Rather, Knight addressed the issue of whether the

“restriction on participation in the nonmandatorysubject exchange process violates the constitutional

rights of professional employees.” Id. at 273.

3

And under this Court’s First Amendment

precedent, exclusive representation laws violate

nonunion employees’ rights to freedom of speech and

free association because the purported governmental

interests set forth by those defending the

constitutionality of such laws are insufficient to

overcome First Amendment scrutiny.

This Court should grant the petition to clarify that

Knight is not a license for unions to speak on behalf of

dissenting employees, that Knight does not exempt

state-mandated public sector union exclusive

bargaining scheme from First Amendment scrutiny,

and to hold that such exclusive representative

schemes violate public employees’ rights of speech and

association.

Argument

I.

State exclusive representative laws

compel government employees to

associate with a union in violation of

their First Amendment rights to free

speech and freedom of association.

Under New York law, when a union is certified by

New York’s Public Employment Relations Board

(“PERB”), “it shall be the exclusive representative . . .

of all the employees in the appropriate negotiating

unit” for purposes of negotiating collectively in

determining the “terms and conditions of

employment” and “determin[ing] and administ[ering]

grievances . . . .” N.Y. Civ. Serv. Law § 204. But those

purposes are precisely the sort of policy decisions that

this Court in Janus v. AFSCME, Council 31

4

recognized as matters of public concern. 585 U.S. 878,

910 (2018).

“By its selection as bargaining representative, [a

union] . . . become[s] the agent of all the employees,

charged with the responsibility of representing their

interests fairly and impartially.” Wallace Corp. v.

NLRB, 323 U.S. 248, 255 (1944). This mandatory

agency

relationship

is

akin

to

“the

relationship . . . between attorney and client,” and to

that between trustee and beneficiary. ALPA v.

O’Neill, 499 U.S. 65, 74–75 (1991).

Unlike other principals represented by agents,

however, “an individual employee lacks direct control

over a union’s actions.” Teamsters Local 391 v. Terry,

494 U.S. 558, 567 (1990). That is because exclusive

representation

“extinguishes

the

individual

employee’s power to order his own relations with his

employer and creates a power vested in the chosen

representative to act in the interests of all employees.”

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180

(1967). In this way, “[t]he powers of the bargaining

representative are ‘comparable to those possessed by

a legislative body both to create and restrict the rights

of those whom it represents.’” Sweeney v. Pence, 767

F.3d 654, 666 (7th Cir. 2014) (quoting Steele v.

Louisville & N.R. Co., 323 U.S. 192, 202 (1944)).

As a result, exclusive representatives can, and

often do, pursue agendas that do not benefit

individuals

subject

to

their

mandatory

representation. See Knox v. Service Employees, 567

U.S. 298, 310–11 (2012); Abood v. Detroit Board of

Education, 431 U.S. 209, 222 (1977). Exclusive

representatives also can enter into agreements that

bind everyone subject to their representation. See

5

Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).

Thus, for example, union representatives can waive

employees’ right to bring discrimination claims

against their employer in court by agreeing that

employees must submit such claims to arbitration.

See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).

A represented individual “may disagree with many of

the union decisions but is bound by them.” AllisChalmers, 388 U.S. at 180.

Unsurprisingly, given a union’s power to speak

and contract for individuals against their will, this

Court has long recognized that exclusive

representation impacts and restricts individual

liberties. See Pyett, 556 U.S. at 271 (holding “[i]t was

Congress’ verdict that the benefits of organized labor

outweigh the sacrifice of individual liberty that this

system necessarily demands”); Vaca v. Sipes, 386 U.S.

171, 182 (1967) (noting “[t]he collective bargaining

system . . . of necessity subordinates the interests of

an individual employee to the collective interests of all

employees in a bargaining unit”); Am. Commc’ns Ass’n

v. Douds, 339 U.S. 382, 401 (1950) (holding

“individual employees are required by law to sacrifice

rights which, in some cases, are valuable to them”

under exclusive representation, and that “[t]he loss of

individual rights for the greater benefit of the group

results in a tremendous increase in the power of the

representative of the group—the union”).

When a state certifies a union to represent a

bargaining unit, it forces all employees in that unit to

associate with the union. This coerced association

authorizes the union to speak on behalf of the

employees even if the employees are not members,

even if the employees do not contribute fees, and even

6

if the employees disagree with the union’s positions

and speech.

This arrangement has two constitutional

problems. First, it compels speech because the union

speaks on behalf of the employees, as though its

speech is the employees’ own speech. Second, it

compels association because the union represents

everyone in the bargaining unit without giving

dissenting employees the choice not to associate.

While it has not had occasion to directly address

this issue, this Court has held that “designating a

union as the exclusive representative of nonmembers

substantially restricts the nonmembers’ rights.”

Janus, 585 U.S. at 901; see also Harris v. Quinn, 573

U.S. 616, 649 (2014); Knox, 567 U.S. at 310–11 (2012).

Indeed, “[f]orcing free and independent individuals to

endorse ideas they find objectionable is always

demeaning. . . . [A] law commanding involuntary

affirmation of objected-to beliefs would require even

more immediate and urgent grounds than a law

demanding silence.” Janus, 585 U.S. at 893 (quoting

W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 633 (1943)

(internal quotation marks omitted)). Exclusive

representation forces employees “to voice ideas with

which they disagree, [which] undermines” First

Amendment values. Id. New York law commands

Petitioners’ involuntary affirmation of beliefs they

reject. In addition to the union’s political positions and

how it negotiates their employment terms and

conditions, Petitioners “detest [the union’s] positions

on Israel,” which they “believe vilifies Zionism,

disparages the national identity of Jews, and seeks to

destroy Israel as a sovereign state.” Pet. 5. The fact

that they retain the right to speak for themselves in

7

certain circumstances does not negate the fact that

the union speaks as their representative by taking

positions they find abhorrent and personally

offensive.

Exclusive representation is also forced association:

Petitioners are forced to associate with the union as

their exclusive representative simply by the fact of

their employment in this particular bargaining unit.

“Freedom of association . . . plainly presupposes a

freedom not to associate.” Roberts v. United States

Jaycees, 468 U.S. 609, 623 (1984). Yet Petitioners

have no such freedom, no choice about their

association with the union; it is imposed—indeed

coerced—by the State’s laws. This would be bad

enough if Petitioners simply disagreed with the

union’s political or negotiating positions. But here,

Petitioners believe their very identity is being

attacked by the union.

Mandatory associations are “exceedingly rare

because . . . [they] are permissible only when they

serve a ‘compelling state interes[t] . . . that cannot be

achieved through means significantly less restrictive

of associational freedoms.’” Knox, 567 U.S. at 309

(quoting Roberts, 468 U.S. at 623). This Court has

required the government to satisfy this level of

scrutiny to justify mandatory associations in a variety

of contexts. This includes where the government

required employees and contractors to affiliate with

political parties, see Elrod v. Burns, 427 U.S. 347,

362–63 (1976); O’Hare Truck Serv., Inc. v. City of

Northlake, 518 U.S. 712, 714–15 (1996); where it

required groups to associate with unwanted

individuals, see Roberts, 468 U.S. at 623; Hurley v.

Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557,

8

577–78 (1995); Boy Scouts of Am. v. Dale, 530 U.S.

640, 658–59 (2000); and where it required individuals

to financially support exclusive representatives. see

Janus, 585 U.S. at 924; Harris, 573 U.S. at 647; Knox,

567 U.S. at 309-10.

Exclusive representation is therefore subject to at

least exacting scrutiny, if not strict scrutiny. See

Knox, 567 U.S. at 310–11. It must “serve a compelling

state interest that cannot be achieved through means

significantly less restrictive of associational

freedoms.” Id. at 310. This the union cannot show.

II.

No compelling interests justify the

infringement of First Amendment rights

created by laws providing for exclusive

representation of public sector unions.

Unions and state governments have offered two

justifications as compelling state interests to support

exclusive representation: labor peace and the

convenience to the government employer. Neither

holds up under exacting, let alone strict, scrutiny.

A.

“Labor peace” is not a compelling

state interest justifying exclusive

representation.

One interest often proffered is “labor peace,”

meaning the “avoidance of the conflict and disruption

that it envisioned would occur if the employees in a

unit were represented by more than one union”

because “inter-union rivalries would foster dissension

within the work force, and the employer could face

9

‘conflicting demands from different unions.’” Janus,

585 U.S. at 933.

Some lower courts have said that exclusive

representation by itself—separate from any other

agency-fee or union-shop arrangement—promotes

“labor peace.” See, e.g., Mentele v. Inslee, 916 F.3d 783,

790 (9th Cir. 2019); Thompson v. Marietta Educ.

Ass’n, No. 2:18-cv-628, 2019 U.S. Dist. LEXIS 206804,

at *18 (S.D. Ohio Nov. 26, 2019); Uradnik v. Inter

Faculty Org., No. 18-1895, 2018 U.S. Dist. LEXIS

165951, at *9 (D. Minn. Sep. 27, 2018); Reisman v.

Associated Faculties of the Univ. of Me., 356 F. Supp.

3d 173, 178 n.1 (D. Me. 2018); Akers v. Md. State Educ.

Ass’n, 376 F. Supp. 3d 563, 570 (D. Md. Apr. 18, 2019).

In Janus this Court assumed, without deciding,

that labor peace might be a compelling state interest,

but rejected it as a justification for agency fees—that

is, for compelling employees to pay money to a union

as a condition of their employment. That interest

should likewise be rejected as a justification for

exclusive representation. This Court recognized that

“it is now clear” that the fear of “pandemonium” if the

union could not charge agency fees was “unfounded.”

Janus, 585 U.S. at 895. To the extent that individual

bargaining is claimed to raise the same concerns of

pandemonium, this too, remains insufficient. Janus

rejected the invocation of this rationale due to the

absence of evidence of actual harm. Id.

And the state must do more than make a bald

assertion of “labor peace” to win its case. Perry Educ.

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 71

(1983) (Brennan, J., dissenting) (“Although the State’s

interest in preserving labor peace in the schools in

order to prevent disruption is unquestionably

10

substantial, merely articulating the interest is not

enough to sustain the exclusive-access policy in this

case. There must be some showing that the asserted

interest is advanced by the policy”). The state must

make “some showing” that exclusive representation is

sufficiently necessary to labor peace to justify

burdening Petitioners’ First Amendment rights. This

it cannot do.

The “labor peace” concept was borrowed by Abood,

431 U.S. at 220–21, from the Court’s jurisprudence

concerning Congress’s Commerce Clause power to

regulate economic affairs. See, e.g., NLRB. v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 41–42 (1937). This

Court described the core concern that Abood

considered “compelling” to justify the state’s interest

in labor peace” (sometimes also called “labor

stability”): avoiding inter-union rivalry.

By “labor peace,” the Abood Court meant

avoidance of the conflict and disruption

that it envisioned would occur if the

employees in a unit were represented by

more than one union. In such a situation,

the

Court

predicted,

inter-union

rivalries would foster dissension within

the work force, and the employer could

face conflicting demands from different

unions. Confusion would ensue if the

employer entered into and attempted to

enforce two or more agreements

specifying different terms and conditions

of employment. And a settlement with

one union would be subject to attack

from a rival labor organization.

11

Janus, 585 U.S. at 895. (internal punctuation

omitted).

Abood’s

“unsupported

empirical

assumption” is “unwarranted” under scrutiny. See

Harris, 573 U.S. at 638.

First, research from a 2011 legislative change to

multi-unionism in New Zealand indicates that this

unsupported empirical assumption is inaccurate.

Mark Harcourt, et al., US Union Revival, Minority

Unionism and Inter-Union Conflict, 56 J. of Industrial

Relations 653, 665 (2014) (“More than 70% of the New

Zealand union leaders surveyed report not having had

even one conflict with another union over the previous

three years.”). The authors conclude:

[C]onflicts do happen in a multi-union

setting, most commonly over membership

and bargaining, but . . . both the level and

consequences of conflict are low. This

empirical evidence should help to dispel

the belief that minority unionism (and

multi-unionism) inevitably leads to more

conflict and labour fragmentation.

Id. at 668.

Second, unions already must compete for affiliates,

and this is a dynamic, ongoing competition based on

leaders’ personalities, political power, contract

successes, and perceived aggression. See U.S. Dep’t of

Labor, “Labor Union Mergers and Affiliations”

(“Labor unions exist in complex hierarchies that may

consist

of

local,

intermediate,

and

national/international unions. The relationships

among the unions often change; for instance, one or

more unions may merge or one union may affiliate

with another union.”). Exclusive representation does

12

not advance the cause of “labor peace” by preventing

union competition; union competition is a reality of

life for unions today because of the breakdown in

industry siloes and national association that

characterized unions in a bygone era.

Thus, the presumption that without exclusive

representation inter-union rivalries would occur

leading to conflict and disruption is not supported by

evidence. Not only does inter-union rivalry already

happen under the exclusive representation system

that does not result in the chaos predicted by the

Abood Court, but the evidence in systems without

exclusive representation shows that such inter-union

rivalries do not result in the kind of disruptive conflict

and disruption that the Abood Court was concerned

about. See Janus, 585 U.S. at 895 (“Abood cited no

evidence that the pandemonium it imagined would

result if agency fees were not allowed, and it is now

clear that Abood’s fears were unfounded”).

And this Court’s cases recognize that the First

Amendment does not permit government to

“substitute its judgment as to how best to speak for

that of speakers and listeners” or to “sacrifice speech

for efficiency.” Riley v. Nat’l Fed’n of the Blind, 487

U.S. 781, 791, 795 (1988). But that is in essence what

the labor peace rationale does. For these reasons,

labor peace cannot justify the infringement of First

Amendment rights imposed on dissenting employees

by exclusive representation.

B.

The

government

convenience is not a

interest

justifying

representation.

employer’s

compelling

exclusive

13

In addition to labor peace, the dissent in Janus

offers a

second

justification for exclusive

representation from the government’s perspective:

“streamlin[ing] the process of negotiating terms of

employment.” Janus, 585 U.S. at 935 (Kagan, J.,

dissenting). The Abood Court noted the government’s

convenience not in negotiating only one contract, but

also the convenience of administering only contract.

431 U.S. at 220 (“The designation of a single

representative avoids the confusion that would result

from attempting to enforce two or more agreements

specifying different terms and conditions of

employment.”)

But the state’s convenience cannot justify

infringing First Amendment rights. The rights to

speech and association cannot be limited by appeal to

administrative convenience. Police Dep’t of Chicago v.

Mosley, 408 U.S. 92, 102 n.9 (1972) (in free speech

cases, a “small administrative convenience” is not a

compelling interest); see also Tashjian v. Republican

Party, 479 U.S. 208, 218 (1986) (holding that a state

could “no more restrain the Republican Party’s

freedom of association for reasons of its own

administrative convenience than it could on the same

ground limit the ballot access of a new major party”).

While it may be quicker or more efficient for the

University to negotiate only with the Union, “the

Constitution recognizes higher values than speed and

efficiency.” Stanley v. Illinois, 405 U.S. 645, 656

(1972). Even if the state could claim that it saves

monetary resources by negotiating and administering

only one contract, the preservation of government

resources is not an interest that can justify First

Amendment violations. In other contexts, even where

14

the state’s burden was only rational-basis review, this

Court has rejected such justifications. See, e.g., Romer

v. Evans, 517 U.S. 620, 635 (1996) (rejecting the

“interest in conserving public resources” in a case

applying only heightened rational basis review); see

also Plyler v. Doe, 457 U.S. 202, 227 (1982) (“a concern

for the preservation of resources standing alone can

hardly justify the classification used in allocating

those resources”). Such claimed interests are not

enough to leave Petitioners “shanghaied for an

unwanted voyage.” Janus, 585 U.S. at 897.

Second, the inconvenience argument is an

“unwarranted empirical assumption” with no

particular showing to back it up. Virtually every

government employer already negotiates and

administers numerous different contracts with

different unions that cover different bargaining units.

Often unions find greater leverage in entering those

negotiations together as a coalition to reach a joint

contract covering multiple bargaining units. See, e.g.,

“Chicago Park District Has Reached Deal With 24 Of

25 Unions; Remaining Union Has Served Strike

Notice,” CBS-2 (Oct. 2, 2019)2 (reporting that

government agency negotiated a joint contract with a

coalition of 22 unions). Or the government may

negotiate with a union or unions on certain common

topics, such as the terms and conditions in an

employee handbook, but then vary the particulars of

individual unrepresented employees’ compensation

based on merit or individual concerns, as already

happens in the private sector. Catherine Fisk and

2 https://www.cbsnews.com/chicago/news/chicago-park-district-

has-reached-deal-with-24-of-25-unions-remaining-union-hasserved-strike-notice/

15

Xenia Tashlitsky, Imagine a World Where Employers

are Required to Bargain with Minority Unions, 27

ABA JOURNAL LAB. & EMP. LAW 1, 15 (2011). The

government employer may also decide to extend a flat

percentage cost-of-living increase or raise to all

employees even if it has the flexibility to vary

amounts. So in many instances, the government may

have less inconvenience than supposed.

In other situations, the government may find the

task of negotiating salaries with individual employees

not a burden but an opportunity. A government

employer may find that flexibility in setting salaries

allows it to recruit better candidates in a highly

competitive market for talent. For current employees,

variability in increases will give public managers a

new tool to align rewards with performance. In both

cases, the incremental additional burden of

negotiating salary on top of the potential or past

performance evaluation already undertaken may be

slight, and the payoff for talent management

significant. In all events, these are the sorts of tradeoffs that should be considered by public officials, not

predetermined by courts.

In sum, the state’s convenience is not a compelling

interest justifying infringements on First Amendment

rights. It is not an acceptable excuse in other First

Amendment contexts, and there is no strong empirical

proof that government employers would be paralyzed

by inconvenience without exclusive representation.

III.

The lower courts have misapplied Knight

in upholding state-compelled union

exclusive representative schemes as

consistent with the First Amendment.

16

The lower courts that have addressed this issue

believed themselves bound by this Court’s decision in

Minnesota State Board for Community Colleges v.

Knight, 465 U.S. 271 (1984), which they held stands

for the proposition that exclusive bargaining schemes

are constitutional. See e.g., Reisman v. Associated

Foes. of Univ. of Me., 939 F.3d 409, 414 (1st Cir.

2019), cert. denied, 141 S. Ct. 445 (2020); Adams v.

Teamsters Union Loc. 429, No. 20-1824, 2022 U.S.

App. LEXIS 1615, *4 (3d Cir. Jan. 20, 2022), cert

denied, 143 S. Ct. 88 (2022); Akers v. Md. State

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

Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 812

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

Bennett v. AFSCME Council 31, 991 F.3d 724, 727

(7th Cir. 2021), cert. denied, 142 S. Ct. 424 (2021);

Uradnik v. Inter Faculty Org., 2 F.4th 722, 725 (8th

Cir. 2021); Mentele, 916 F.3d at 790, cert. denied, 140

S. Ct. 114 (2019); Hendrickson v. AFSCME Council

18, 992 F.3d 950, 969 (10th Cir. 2021), cert. denied,

142 S. Ct. 423 (2021). But Knight did not consider a

compelled-speech or compelled-association challenge

to exclusive-bargaining schemes.

Knight holds that employees do not have a right,

as members of the public, to a formal audience with

the government to air their views. Knight did not

decide whether such employees can be forced to

associate with the union. As the Knight court framed

the issue, “The question presented . . . is whether this

restriction on participation in the nonmandatorysubject exchange process violates the constitutional

rights of professional employees.” 465 U.S. at 273.

The plaintiffs in Knight were community college

faculty who dissented from the certified union. Id. at

17

278. The Minnesota statute at issue required that

their employer “meet and confer” with the union alone

regarding “non-mandatory subjects” of bargaining.

The statute explicitly prohibited negotiating

separately with dissenting employees. Id. at 276. The

plaintiffs filed their suit claiming a constitutional

right to take part in these negotiations.

The Court explained the issue it was addressing:

“[A]ppellees’ principal claim is that they have a right

to force officers of the State acting in an official

policymaking capacity to listen to them in a particular

formal setting.” Id. at 282. Confronted with this claim,

this Court held that the employees had “no

constitutional right to force the government to listen

to their view, . . . as members of the public, as

government employees, or as instructors in an

institution of higher education.” Id. at 283.

Knight did not address whether exclusive

representation constitutes a mandatory expressive

association. That is because this Court had already

ruled on that issue years earlier in Abood, 431 U.S. at

220–21. Abood “reject[ing] the claim that it was

unconstitutional for a public employer to designate a

union as the exclusive collective-bargaining

representative of its employees.” Chicago Teachers

Union v. Hudson, 475 U.S. 292, 301 (1986); see Knight

v. Minn. Cmty. Coll. Faculty Ass’n, 571 F. Supp. 1, 15

(D. Minn. 1982) (recognizing that “Abood squarely

upheld

the

constitutionality

of

exclusive

representation bargaining in the public sector”).

Abood did so because it found “[t]he principle of

exclusive union representation” to be justified by the

labor peace interest. 431 U.S. at 220–21. Knight did

not revisit the compelled association issue already

18

decided in Abood. But Abood is no longer good law.

This Court squarely overturned it in Janus. Thus,

Abood cannot justify the exclusive bargaining

statutory system.

The central issue in Knight was whether the

plaintiffs could compel the government to negotiate

with them instead of, or in addition to, the union. That

question is fundamentally different from Petitioners’

claim that the government cannot compel them to

associate with the union by authorizing the union to

bargain on their behalf. The fact that the government

is entitled to listen only to the exclusive

representative does not mean the government is free

to dictate who speaks and contracts for individuals in

their relations with government. The latter infringes

on First Amendment rights, even if the former does

not.

Knight is, therefore, not responsive to the question

Petitioners now raise: whether someone else can

speak in their name, with their imprimatur granted

to it by the government. They do not contest the right

of the government to choose whom it meets with, to

“choose its advisors,” or to amplify the union’s voice.

They do not demand that the government schedule

meetings with them, engage in negotiation, or satisfy

any of the other demands made in Knight. They only

ask that the union not do so in their name.

This Court’s “compelled-speech cases are not

limited to the situation in which an individual must

personally speak the government’s message.”

Rumsfeld v. Forum for Academic and Institutional

Rights, Inc., 547 U.S. 47, 63 (2006). The state

exclusive representation requirement takes away

dissenting employees’ “choice . . . not to propound a

19

particular point of view,” a matter “presumed to lie

beyond the government’s power to control,” in the

same way that compelling a parade organizer to

accept a group carrying a banner with an unwanted

message would do so. Hurley, 515 U.S. at 575. The fact

that Petitioners must speak out to distance

themselves from the union’s speech—speech that

attacked their identity and that they believe is

antisemitic and anti-Israel, Pet. 5—escalates, not

diminishes, their constitutional injury. Pacific Gas &

Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1,

20–21 (1986) (plurality opinion); Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974).

The government is not free to compel citizens to

associate with advocacy groups so long as those

citizens are otherwise free to speak. As Justice Scalia

put it when addressing a similar contention in Harris,

“I suppose the fact that you’re entitled to speak

against abortion would not justify the government in

requiring you to give money to Planned Parenthood.”

Transcript of Oral Argument at 17, Harris v. Quinn,

573 U.S. 616 (2014) (No. 11-681)3.

Conclusion

Government-imposed mandatory associations

violate the First Amendment unless they serve a

compelling government interest that cannot be

achieved through means significantly less restrictive

of

associational

freedoms.

State

exclusive

representative laws violate employees’ First

Amendment rights to free speech and association. No

3 Available at:

https://www.supremecourt.gov/oral_arguments/argument_trans

cripts/2013/11-681_4f14.pdf.

20

compelling interest justifies this intrusion into

Petitioners’ rights. This Court should grant certiorari

to clarify that Knight does not stand for the

proposition that exclusive bargaining schemes are

constitutional. Rather, based on this Court’s First

Amendment precedent, state exclusive representation

laws violate the First Amendment rights to speech

and association.

August 22, 2024

Jeffrey M. Schwab

Counsel of Record

Liberty Justice Center

7500 Rialto Blvd.

Suite 1-250

Austin, Texas 78735

512-481-4400

jschwab@ljc.org

Counsel for Amicus Curiae