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

Supreme Court briefDec 6, 2024

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No. 24-71

IN THE Supreme Court of the United States

___________________

AVRAHAM GOLDSTEIN, ET AL.,

Petitioners,

PROFESSIONAL STAFF CONGRESS/CUNY, ET AL.,

Respondents.

___________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

___________________

BRIEF IN OPPOSITION

OF RESPONDENT PROFESSIONAL STAFF

CONGRESS/CUNY

___________________

HANAN B. KOLKO

COHEN, WEISS & SIMON LLP

900 Third Avenue

Suite 2100

New York, NY 10022

SCOTT A. KRONLAND

Counsel of Record

MATTHEW J. MURRAY

ALTSHULER BERZON LLP

177 Post Street, #300

San Francisco, CA 94108

(415) 421-7151

skronland@altber.com

Counsel for Respondent

Professional Staff Congress/CUNY

Mosaic - (301) 927-3800 - Cheverly, MD

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6/11/08

12:44:0

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QUESTION PRESENTED

For nearly a century, American labor law, in both

the public and private sectors, has been built on the

principle of exclusive representation—the principle

that, if a majority of employees in a bargaining unit

democratically elects to be represented by a union,

that union bargains on behalf of the entire unit with

respect to terms and conditions of employment, and

any agreement the union negotiates with the employer runs to the benefit of all employees in the unit.

This Court held in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), that

exclusive representation in public employment does

not violate the First Amendment.

The question presented by the petition is whether,

despite Knight’s holding to the contrary, the First

Amendment prohibits the use of exclusive-representation collective bargaining to set employment terms for

public employees.

CORPORATE DISCLOSURE STATEMENT

Respondent Professional Staff Congress/CUNY

has no parent corporation, and no corporation or other

entity owns any stock in Respondent.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................i

CORPORATE DISCLOSURE STATEMENT ......... ii

TABLE OF CONTENTS ......................................... iii

TABLE OF AUTHORITIES .................................... iv

INTRODUCTION ..................................................... 1

STATEMENT OF THE CASE.................................. 3

A. Background.......................................................... 3

B. Proceedings Below ............................................... 7

REASONS FOR DENYING THE PETITION ......... 9

I. As the lower courts unanimously have

recognized, Knight forecloses petitioners’

challenge to exclusive-representation

bargaining. ......................................................... 10

II. Knight is consistent with this Court’s

broader First Amendment jurisprudence. ........ 15

III.Petitioners’ strongly held views do not

change the constitutional analysis. .................. 22

IV. This case is not a vehicle to consider

exclusive representation outside the

public employment context. .............................. 24

CONCLUSION........................................................ 26

TABLE OF AUTHORITIES

Page(s)

Cases

14 Penn Plaza v. Pyett,

556 U.S. 247 (2009) ........................................... 20

Adams v. Teamsters Union Loc. 429,

2022 WL 186045 (3d Cir.) (unpublished),

cert. denied, 143 S. Ct. 88 (2022) .................. 1, 12

Akers v. Maryland State Educ. Ass’n,

990 F.3d 375 (4th Cir. 2021) ............................... 2

Am. Commc’ns Ass’n v. Douds,

339 U.S. 382 (1950) ........................................... 20

Bd. of Educ. of Westside Cmty. Sch. v.

Mergens,

496 U.S. 226 (1990) ........................................... 17

Bennett v. AFSCME Council 31,

991 F.3d 724 (7th Cir.), cert. denied,

142 S. Ct. 423 (2021) ..................................... 1, 13

Bierman v. Dayton,

900 F.3d 570 (8th Cir. 2018), cert. denied

sub nom. Bierman v. Walz, 139 S. Ct.

2043 (2019) .................................................... 1, 13

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000) ........................................... 18

Branch v. Commonwealth Emp’t Relations

Bd.,

120 N.E.3d 1163 (Mass. 2019), cert.

denied sub nom. Branch v. Mass. Dep’t of

Labor Relations, 140 S. Ct. 858 (2020) ............... 1

City of Madison, Joint Sch. Dist. No. 8 v.

Wis. Employee Rels. Comm’n,

429 U.S. 167 (1976) ........................................... 15

Civ. Serv. Bar Ass’n, Loc. 237, Int’l Bhd. of

Teamsters v. City of New York,

64 N.Y.2d 188 (N.Y. Ct. App. 1984) .................. 23

D’Agostino v. Baker,

812 F.3d 240 (1st Cir.), cert. denied,

579 U.S. 909 (2016) ...................... 2, 16-17, 19, 21

Hendrickson v. AFSCME Council 18,

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

142 S. Ct. 423 (2021) ..................................... 1, 13

Hill v. SEIU,

850 F.3d 861 (7th Cir.), cert. denied,

583 U.S. 972 (2017) ....................................... 1, 21

Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Boston,

515 U.S. 557 (1995) ........................................... 18

Janus v. AFSCME Council 31,

585 U.S. 878 (2018) .........3, 5, 8, 13-14, 21-22, 25

Jarvis v. Cuomo,

660 F. App’x 72 (2d Cir. 2016), cert.

denied, 580 U.S. 1159 (2017) .............................. 1

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

460 U.S. 1048 (1983) ..................................... 8, 11

Lathrop v. Donohue,

367 U.S. 820 (1961) ........................................... 17

Lehnert v. Ferris Fac. Ass’n,

500 U.S. 507 (1991) ..................................... 14, 15

Mentele v. Inslee,

916 F.3d 783 (9th Cir.), cert. denied sub

nom. Miller v. Inslee, 140 S. Ct. 114

(2019) ................................................................... 1

Minn. State Bd. for Cmty. Colls. v. Knight,

465 U.S. 271 (1984) ........................ 2, 8-15, 17, 25

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024) ....................................... 18

Mulhall v. UNITE HERE Local 355,

618 F.3d 1279 (11th Cir. 2010) ................... 20, 21

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) .......................................... 19

NLRB v. Allis-Chalmers Mfg. Co.,

388 U.S. 175 (1967) ........................................... 20

Ocol v. Chicago Tchrs. Union,

982 F.3d 529 (7th Cir. 2020), cert.

denied, 142 S. Ct. 423 (2021) .............................. 1

Oliver v. SEIU Local 668,

830 F. App’x 76 (3d. Cir. 2020)............................ 2

vii

Peltz-Steele v. UMass Fac. Fed’n,

60 F.4th 1 (1st Cir.), cert. denied,

143 S. Ct. 2614 (2023) ............................. 1, 17, 22

Pickering v. Bd. of Educ.,

391 U.S. 563 (1968) .......................................... 22

Reisman v. Associated Faculties of Univ. of

Maine,

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

141 S. Ct. 445 (2020) ................................1, 16-17

Riley v. Nat’l Fed’n of the Blind,

487 U.S. 781 (1988) ........................................... 18

Roberts v. United States Jaycees,

468 U.S. 609 (1984) ........................................... 18

Rumsfeld v. Forum for Academic &

Institutional Rights, Inc.,

547 U.S. 47 (2006) ..................................16, 23-24

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990) ............................................. 19

Smith v. Ark. State Hwy. Emps., Loc. 1315,

441 U.S. 463 (1979) ........................................... 20

State Comm’n for Hum. Rts. v. Farrell,

24 A.D.2d 128 (N.Y. App. Div. 1965) ................ 22

Steele v. Louisville & N.R. Co.,

323 U.S. 192 (1944) ........................................... 20

Thompson v. Marietta Educ. Ass’n,

972 F.3d 809 (6th Cir. 2020), cert.

denied, 141 S. Ct. 2721 (2021) ...................... 1, 12

viii

Uradnik v. Inter Fac. Org.,

2 F.4th 722 (8th Cir. 2021) .................................. 2

Uradnik v. Inter Fac. Org.,

2018 WL 4654751 (D. Minn. Sept. 27,

2018), aff’d, 2018 WL 11301550 (8th Cir.

Dec. 3, 2018), cert. denied, 139 S. Ct.

1618 (2019) .......................................................... 1

Vaca v. Sipes,

386 U.S. 171 (1967) .......................................... 23

Wash. State Grange v. Wash. State

Republican Party,

552 U.S. 442 (2008) ........................................... 16

Constitutions, Statutes, and Regulations

U.S. Const., 1st Amend...... 1-2, 7, 9-10, 12-16, 18-24

29 U.S.C.

§ 158(d)................................................................. 5

§ 159 ..................................................................... 5

42 U.S.C.

§ 1983 ................................................................... 7

§ 2000e-2(c) ........................................................ 22

45 U.S.C. § 152 Fourth ............................................. 5

N.Y. Civ. Serv. Law

§§ 200–215 ........................................................... 3

§ 200 ..................................................................... 4

§ 202 ............................................................... 5, 19

§ 204 ........................................................... 4, 5, 17

§ 209-a ............................................................ 5, 19

§§ 210–211 ........................................................... 4

N.Y.C. Admin. Code § 8-101 et. seq. ...................... 22

N.Y. Exec. Law § 290 et seq ................................... 22

Other Authorities

Br. for New York et al. as Amici Curiae

Supporting Respondents, Harris v.

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

2013 WL 6907713 (filed Dec. 30, 2013) .............. 6

Catherine L. Fisk & Martin H. Malin,

After Janus, 107 Cal. L. Rev. 1821 (2019) ........ 14

“Debating the Delegate Assembly Resolution,” Clarion (August 2021), available at

https://psc-cuny.org/clarion/2021/august/responses-israel-and-palestine/ (last

visited November 16, 2024) ............................... 24

Governor’s Committee on Public Employee

Relations, Final Report (Mar. 31, 1966)

(“Taylor Committee Report”), available

https://perb.ny.gov/system/files/documen

ts/2024/05/1966-taylor-committeereport.pdf (last visited November 16,

2024)..................................................................... 4

Martin H. Malin, The Motive Power in

Public Sector Collective Bargaining,

36 Hofstra Lab. & Emp. L.J. 123 (2018)............. 4

News Release, Bureau of Labor Statistics,

U.S. Dep’t of Labor, Union Members—

2023 (Jan. 23, 2024), Table 3 (union affiliation 2023), available at

https://www.bls.gov/news.release/union2.htm (last visited November 16,

2024)..................................................................... 6

Pet. for Writ of Certiorari, Peltz-Steele v.

UMass Fac. Fed’n,

No. 22-1123 (May 15, 2023), cert. denied,

143 S. Ct. 2614 (2023) ....................................... 10

S. Rep. No. 74-573, reprinted in 2 Leg. Hist.

of the NLRA 2313 (1935) ..................................... 6

INTRODUCTION

The petition asks the Court to consider holding unconstitutional what has been, for the past century, the

fundamental principle of American labor relations in

both the public and private sectors: the representation

of a bargaining unit, for purposes of negotiating terms

and conditions of employment and enforcing the

agreed-upon terms, by a labor organization democratically selected by the majority of employees in that

unit. Since 2016, this Court has denied certiorari in

more than a dozen cases in which the lower courts

have rejected First Amendment challenges to exclusive representation, and it should do so here as well.1

1 See Peltz-Steele v. UMass Fac. Fed’n, 60 F.4th 1, 4–8 (1st

Cir.), cert. denied, 143 S. Ct. 2614 (2023); Adams v. Teamsters

Union Loc. 429, 2022 WL 186045, at *2–3 (3d Cir.) (unpublished),

cert. denied, 143 S. Ct. 88 (2022); Hendrickson v. AFSCME Council 18, 992 F.3d 950, 968–70 (10th Cir.), cert. denied, 142 S. Ct.

423 (2021); Bennett v. AFSCME Council 31, 991 F.3d 724, 732–

35 (7th Cir.), cert. denied, 142 S. Ct. 423 (2021); Ocol v. Chicago

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

142 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); Reisman v. Associated Faculties of Univ. of Maine, 939

F.3d 409 (1st Cir. 2019), cert. denied, 141 S. Ct. 445 (2020);

Branch v. Commonwealth Emp’t Relations Bd., 120 N.E.3d 1163

(Mass. 2019), cert. denied sub nom. Branch v. Mass. Dep’t of Labor Relations, 140 S. Ct. 858 (2020); Mentele v. Inslee, 916 F.3d

783 (9th Cir.), cert. denied sub nom. Miller v. Inslee, 140 S. Ct.

114 (2019); Bierman v. Dayton, 900 F.3d 570 (8th Cir. 2018), cert.

denied sub nom. Bierman v. Walz, 139 S. Ct. 2043 (2019);

Uradnik v. Inter Fac. Org., 2018 WL 4654751 (D. Minn. Sept. 27,

2018) (preliminary-injunction denial), aff’d, 2018 WL 11301550

(8th Cir. Dec. 3, 2018), cert. denied, 139 S. Ct. 1618 (2019); Hill

v. SEIU, 850 F.3d 861 (7th Cir.), cert. denied, 583 U.S. 972 (2017);

Jarvis v. Cuomo, 660 F. App’x 72 (2d Cir. 2016), cert. denied, 580

This Court recognized forty years ago, in Minnesota State Board for Community Colleges v. Knight,

465 U.S. 271 (1984), that exclusive representation for

public employees does not compel speech or association in violation of the First Amendment. Id. at 288

(recognition of a union representative for a unit of

public employees “in no way restrain[s] [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”).

Petitioners do not ask this Court to consider overruling Knight. They instead ask this Court to grant

certiorari and upend the unbroken line of lower-court

decisions holding that Knight forecloses First Amendment challenges to exclusive representation. But

petitioners, like the plaintiff university professors in

Knight, are not required to join or financially support

the union chosen to represent their unit or, indeed, to

personally do or say anything to associate themselves

with the union. This Court held in Knight that such

facts do not state a First Amendment violation. That

holding controls here.

University officials and reasonable outsiders understand that college faculty members do not

necessarily agree with each other or with the positions

of the majority-chosen union—as in every other democratic system of representation—so the union’s

U.S. 1159 (2017); D’Agostino v. Baker, 812 F.3d 240 (1st Cir.),

cert. denied, 579 U.S. 909 (2016); see also Uradnik v. Inter Fac.

Org., 2 F.4th 722, 725–27 (8th Cir. 2021); Akers v. Maryland

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

SEIU Local 668, 830 F. App’x 76, 80–81 (3d. Cir. 2020).

speech is not attributed personally to individual faculty members. Petitioners are also free to express

their own views, whether individually or though

groups of their choosing, and they are free to disassociate themselves from the union and their colleagues

by resigning their union membership and speaking

out against the union’s positions—as they have done.

Contrary to petitioners’ contention, Janus v. AFSCME Council 31, 585 U.S. 878 (2018), did not

question the constitutionality of exclusive-representation bargaining. Janus held only that public

employees cannot be forced to provide financial support (known as agency fees) for the union that

represents their bargaining unit. This Court emphasized that, aside from ending compelled agency fees,

States could “keep their labor-relations systems exactly as they are” and that the Court was “not in any

way questioning the foundations of modern labor law.”

Id. at 904 n.7, 928 n.27. No principle is more central

to the foundations of modern labor law than exclusive

representation.

The petition should be denied.

STATEMENT OF THE CASE

A. Background

1. In 1967, in response to years of disruptive labor

strikes, New York State adopted its Public Employees’

Fair Employment Act, N.Y. Civil Service Law §§ 200–

215, commonly known as the Taylor Law, to “promote

harmonious … relationships between government and

its employees and to protect the public by assuring …

the orderly and uninterrupted operations and

functions of government.” N.Y. Civ. Serv. Law § 200;

see generally Governor’s Committee on Public Employee Relations, Final Report (Mar. 31, 1966)

(“Taylor Committee Report”).2 The Taylor Law grants

public employees the right to unionize and negotiate

collectively with their public employers. N.Y. Civ.

Serv. Law §§ 200–204, 210–211.

Before the Taylor Law, New York’s 1947 ConlinWaldon Act imposed draconian penalties for public

employee strikes without creating a collective bargaining system. See Martin H. Malin, The Motive

Power in Public Sector Collective Bargaining, 36 Hofstra Lab. & Emp. L.J. 123, 124–25 (2018). The ConlinWaldon Act was a complete failure. See id. After major, disruptive, illegal strikes in 1965 and 1966,

Governor Rockefeller appointed the Taylor Committee

“to make legislative proposals for protecting the public

against the disruption of vital public services by illegal strikes.” Id. at 123 n.5; Taylor Committee Report

at 9. The Committee concluded that a collective bargaining system was necessary to promote labor peace,

and the New York State Legislature responded by

adopting the Taylor Law. See N.Y. Civ. Serv. Law

§ 200.

Under the Taylor Law, the majority of employees

in an appropriate bargaining unit may democratically

vote to be represented by an employee organization for

purposes of collective bargaining. N.Y. Civ. Serv. Law

§ 204. If employees choose union representation, the

union becomes “the exclusive representative, for the

Available

https://perb.ny.gov/system/files/documents/2024/05/1966-taylor-committee-report.pdf (last visited

November 16, 2024).

purposes of [the Taylor Law], of all the employees in

the appropriate negotiating unit,” and the public employer is “required to negotiate collectively with such

employee organization” about unit-wide employment

terms. Id. § 204(2).

The Taylor Law guarantees public employees the

right to choose whether to become members of a union

that represents their bargaining unit. N.Y. Civ. Serv.

Law § 202. The exclusive representative has a duty to

fairly represent all bargaining unit employees, regardless of membership status, in negotiating and

enforcing the collective bargaining agreement, but

need not represent nonmembers in grievances about

evaluations or discipline “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). After Janus, public employees

who choose not to be members of the union that represents their bargaining unit are not required to

provide any financial support to the union.

2. The Taylor Law’s democratic system of exclusive-representative bargaining follows the model that

Congress adopted nearly a century ago for private-sector labor relations. See 29 U.S.C. §§ 158(d), 159

(exclusive representation provisions of National Labor

Relations Act); 45 U.S.C. § 152 Fourth (exclusive representation provisions of Railway Labor Act).

Congress adopted exclusive representation as the best

mechanism for stable labor relations, concluding that,

because it is “practically impossible to apply two or

more sets of agreements to one unit of workers at the

same time, or to apply the terms of one agreement to

only a portion of the workers in a single unit, the making of agreements is impracticable in the absence of

majority rule.” S. Rep. No. 74-573, reprinted in 2 Leg.

Hist. of the NLRA 2313 (1935).

The same exclusive-representation model is also

used by the federal government, and in about 40 other

states, the District of Columbia, and Puerto Rico for

at least some public employees. See Br. for New York

et al. as Amici Curiae Supporting Respondents, Harris v. Quinn, 573 U.S. 616 (2014) (No. 11-681), 2013

WL 6907713, at *8 n.3 & Appendix (filed Dec. 30,

2013) (collecting statutory authorizations of exclusive

representation). Collective bargaining agreements

with exclusive representatives presently cover about

7.8 million federal, state, and local public employees.3

3. Respondent Professional Staff Congress/CUNY

(“PSC” or the “Union”) is the collective bargaining representative for a bargaining unit of about 30,000 City

University of New York (“CUNY”) instructional staff.

App. 67a. Petitioners are six bargaining unit employees. App. 65a–67a.

Petitioners are not members of the Union, and they

are not required to provide any financial support to

the Union. App. 17a, 44a–45a. Petitioners allege that

they oppose representation by PSC because petitioners—five of whom are Jewish—believe that PSC

“advocate[s] positions and take[s] actions that Plaintiffs believe to be anti-Semitic.” App. 63a. In support

of this allegation, petitioners point to the adoption of

3 News Release, Bureau of Labor Statistics, U.S. Dep’t of La-

bor, Union Members—2023 (Jan. 23, 2024), Table 3 (union

affiliation 2023), available at https://www.bls.gov/news.release/union2.htm (last visited November 16, 2024).

a June 2021 “Resolution in Support of the Palestinian

People.” App. 63a, 74a, 93a–95a (copy of resolution).

Petitioners also “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.” App. 76a.

B. Proceedings Below

Petitioners filed this action on January 12, 2022,

alleging claims under 42 U.S.C. § 1983 against PSC,

CUNY, three New York Public Employee Relations

Board members, the City of New York, and the New

York State Comptroller. App. 62a–63a. Count One of

their complaint alleges that PSC’s status as exclusive

collective bargaining representative violates petitioners’ First Amendment rights by compelling them to

associate with PSC and its speech. App. 82a–85a.

Count Two alleges that petitioners’ inclusion in the instructional staff bargaining unit violates their First

Amendment rights by compelling them to associate

with other employees in the bargaining unit. App.

85a–87a.4

In what the Second Circuit recognized as “a thorough and well-reasoned decision,” App. 5a, the district

court granted the defendants’ motions to dismiss

Counts One and Two. App. 12a–46a. The district court

concluded that petitioners’ First Amendment challenge to exclusive representation—whether “viewed

4 In Count Three, petitioners alleged that three petitioners

erroneously had union dues deducted after their resignations

from membership. App. 87a–89a. The parties settled that claim.

App. 5a n.2.

as challenging their compelled association with the

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

members (Count Two)”—is foreclosed by this Court’s

summary affirmance and plenary decision in the

Knight litigation because “[t]he facts here are on all

fours with those in Knight—indeed, strikingly so.”

App. 19a–28a, 32a (citing Knight v. Minn. Cmty. Coll.

Fac. Ass’n, 460 U.S. 1048 (1983) (summary disposition) and Minn. State Bd. for Cmty. Colls. v. Knight,

465 U.S. 271 (1984) (“Knight”)). The district court rejected petitioners’ argument that this Court’s “2018

decision in Janus repudiates, at least implicitly, the

holding in Knight.” App. 28a–32a.

The Second Circuit affirmed. App. 1a–11a. The

Second Circuit concluded that petitioners’ claims “are

directly foreclosed by Knight,” agreeing with “each of

our sister circuits to have addressed this issue since

… Janus.” App. 6a & n.3, 10a. The Second Circuit explained that “[d]esignating PSC as [petitioners’]

exclusive bargaining representative does not impermissibly burden [their] ability to speak with, associate

with, or not associate with whom they please, including CUNY and PSC. [Petitioners] are free to resign

their membership from the union or to engage in public dissent against PSC’s views.” App. 8a.5

5 The Second Circuit also affirmed the district court’s rejection of petitioners’ challenge to a 2019 amendment to the Taylor

Law. App. 10a–11a, 40a–44a. Petitioners do not pursue that

challenge in their petition.

REASONS FOR DENYING THE PETITION

The petition is not worthy of this Court’s review.

Petitioners concede that the Second Circuit’s decision

is consistent with the decisions of every other court to

consider the same issue, which unanimously hold that

exclusive-representative bargaining systems for public employees do not, by themselves, compel speech or

association in violation of the First Amendment. This

Court has declined to review the question presented

by this petition more than a dozen times since 2016.

There is no reason for a different outcome in this case.

Petitioners do not ask this Court to consider overruling Knight, which rejected a First Amendment

challenge to a collective bargaining system that is indistinguishable from the system here. Regardless,

there is no good reason to do so. Knight undergirds the

labor relations systems for millions of public employees throughout the country, including federal, state,

and local employees. No subsequent decisions have

undermined Knight’s precedential force. Nor do petitioners’ assertions that they strongly disagree with

the Union’s alleged positions change the constitutional analysis. Petitioners also urge the Court to

grant review to hold that the principle of exclusive

representation cannot be extended outside the public

employment context, Pet. 18–20, but this case does not

present a vehicle for addressing that issue.

As the lower courts unanimously have

recognized, Knight forecloses

petitioners’ challenge to exclusiverepresentation bargaining.

The question presented in this petition is not new.

This Court concluded forty years ago in Knight that

an exclusive-representation system does not violate

the First Amendment rights of public employees.

Every lower court to consider this issue has recognized

that Knight forecloses First Amendment challenges to

exclusive-representative bargaining for public employees. See supra n.1; App. 6a n.3 (collecting cases).

Petitioners contend that review is warranted because, in petitioners’ view, the lower courts are

misinterpreting Knight. Pet. 10. This is a reprise of

arguments made in numerous recent petitions for certiorari, all of which this Court has denied. See supra

n.1.6 Regardless, Knight forecloses petitioners’ claims.

In Knight, this Court addressed a First Amendment challenge by college instructors (like petitioners

here) to a Minnesota statute that (like the New York

statute here) “establishe[d] a procedure, based on majority support within a unit, for the designation of an

exclusive bargaining agent for that unit.” 465 U.S. at

274. The Minnesota statute required public employers

(1) to negotiate with such an exclusive representative

over terms and conditions of employment (known as a

6 See, e.g., Pet. for Writ of Certiorari, Peltz-Steele v. UMass

Fac. Fed’n, No. 22-1123, at 17 (May 15, 2023) (arguing that

“Knight did not address whether exclusive representation constitutes a mandatory expressive association”), cert. denied, 143

S. Ct. 2614 (2023).

“meet and negotiate” requirement), and also (2) to confer with the exclusive representative about subjects

outside the scope of mandatory negotiations (known

as a “meet and confer” requirement). Id. Under the

statute, “the employer [could] neither ‘meet and negotiate’ nor ‘meet and confer’ with any members of that

bargaining unit except through their exclusive representative.” Id. at 275.

The statute did not prevent members of the bargaining unit from submitting advice to their employer

or from speaking publicly on matters related to their

employment. Id. Although the state university board

“consider[ed] the [union’s] views ... to be the faculty’s

official collective position,” the board also recognized

“that not every instructor agrees with the official faculty view on every policy question.” Id. at 276.

This Court summarily affirmed the district court’s

dismissal of the instructors’ constitutional challenge

to the “meet and negotiate” requirement. See Knight,

465 U.S. at 279 (citing Knight v. Minn. Cmty. Coll.

Fac. Ass’n, 460 U.S. 1048 (1983)). The Court then gave

plenary consideration to the instructors’ challenge to

the “meet and confer” requirement, concluding that

exclusive representation was constitutional in that

context as well. Id. at 288.

In Part II.A of its opinion, the Knight Court first

considered and rejected the instructors’ claim that

their right to free speech was impaired because, unlike the exclusive representative, they had no

“government audience for their views.” Id. at 280–88.

Contrary to petitioners’ contention, Pet. 10–12, the

Knight Court did not stop there. Rather, the Court

then turned, in Part II.B of the opinion, to the broader

issues of speech and association, concluding that

“[t]he State ha[d] in no way restrained [the instructors’] 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.” Knight, 465 U.S. at 288 (emphasis added); see id.

at 290 n.12 (finding that nonmembers’ “speech and associational freedom have been wholly unimpaired”)

(emphasis added); id. at 291 (stating that instructors

were “[u]nable to demonstrate an infringement of any

First Amendment right”) (emphasis added).

The Court pointed out that the instructors were

“not required to become members” of the union and

were “free to form whatever advocacy groups they

like.” Id. at 289. The Court reasoned that instructors’

“associational freedom ha[d] not been impaired” because “the pressure [they may have felt to join the

exclusive representative was] no different from the

pressure to join a majority party that persons in the

minority always feel.” Id. at 289–90.

Like every other court to consider the issue, the

Second

Circuit

recognized

that

petitioners’

“reading of Knight is far too narrow” and that the decision holds that the States may use exclusiverepresentation systems for public employee labor relations. App. 8a; see also Adams v. Teamsters Union

Loc. 429, 2022 WL 186045, at *2 (3d Cir.), cert. denied,

143 S. Ct. 88 (2022) (rejecting narrow “reading of

Knight” as “simply at odds with what it says. … [T]he

Court also considered whether the law violated the

teachers’ First Amendment freedoms of speech or association. It held that it did not.”); Thompson, 972

F.3d at 814 (rejecting argument that Knight “did not

involve a compelled-representation challenge,” because “in Knight, the Court framed the question

presented in broad terms,” and plaintiff’s proposed

“cramped reading of Knight would functionally overrule the decision”); Bierman, 900 F.3d at 574

(rejecting argument that Knight considered only public employees’ right to be heard because “a fair reading

of Knight is not so narrow”); Bennett, 991 F.3d at 734

(rejecting argument that Knight “addressed only

whether the plaintiffs could force the government to

listen to their views”); Hendrickson, 992 F.3d at 969

(recognizing that Knight “found exclusive representation constitutionally permissible” and forecloses the

“claim that exclusive representation imposes compulsion in violation of the First Amendment”).

In the absence of any conflict regarding the proper

interpretation of Knight, this Court should deny certiorari. Petitioners do not ask the Court to overrule

Knight, much less demonstrate any “special justification” for abandoning stare decisis. Cf. Janus, 585 U.S.

at 929.

It also bears emphasis that petitioners do not offer

a realistic alternative to the American system of collective bargaining this Court upheld in Knight, which

serves as the basis for contracts covering millions of

federal, state and local employees. Petitioners proclaim that a decision in their favor “would not upend

systems of collective bargaining” because “public employers could continue to meet and bargain with only

one union if they so choose” and “PSC could continue

to … bargain for the roughly 30,000 individuals in the

bargaining unit, minus only the six Professors and

others who oppose associating with PSC.” Pet. 17–18.

But experiments with members-only bargaining in

the United States have failed. Catherine L. Fisk &

Martin H. Malin, After Janus, 107 Cal. L. Rev. 1821,

1835 (2019).

Equally to the point, if a union could “negotiate

particularly high wage increases for its members,”

Lehnert v. Ferris Fac. Ass’n, 500 U.S. 507, 556 (1991)

(Scalia, J., concurring in part and dissenting in part),

then non-members would claim that they are pressured to join the union in violation of their First

Amendment rights. See Janus, 585 U.S. at 899 (“[I]t

is questionable whether the Constitution would permit a public-sector employer to adopt a collectivebargaining agreement that discriminates against nonmembers.”). That is why this Court has recognized

that the imposition of a duty of fair representation on

the union when acting as the collective bargaining

representative is a “necessary concomitant” of an exclusive-representative system and avoids “serious

constitutional questions” that otherwise would arise.

Id. at 901.

In Janus, this Court reasoned that a ban on compelled agency fees would not destroy state collective

bargaining systems because “the Federal Government

and 28 other States” already operated collective bargaining systems without agency fees. 585 U.S. at 895–

96, 928 n.27. By contrast, there are no examples of

successful collective bargaining systems in the United

States that depart from the principle of exclusive representation upheld in Knight.

The Court has denied numerous previous petitions

that asked the Court to revisit Knight. Nothing justifies a different outcome here.

II.

Knight is consistent with this Court’s

broader First Amendment jurisprudence.

The lower courts’ unanimity on the question presented is sufficient reason to deny the petition. But

Knight is also entirely consistent with this Court’s

subsequent First Amendment decisions.

1. The premise of the Petition is that petitioners

are “prohibit[ed] … from disassociating” from the Union. Pet. i (question presented). But petitioners have

done so by resigning their union memberships. New

York does not require petitioners to financially support PSC, or express or disseminate any unwanted

message, or do anything else to align themselves with

PSC or its positions. Petitioners also retain their full

First Amendment rights to speak and petition about

all issues, whether individually or through groups.7

PSC’s collective bargaining agreement expressly

states that the recognition of PSC for purposes of the

Taylor Law does not prevent CUNY officials “from

meeting with any individual or organization to hear

views on any matters.” Dist. Ct. Dkt. 1-1 at 10 (Compl.

Ex. A ¶1.2).

7 See Lehnert, 500 U.S. at 521 (“Individual employees are free

to petition their neighbors and government in opposition to the

union which represents them in the workplace.”); City of Madison, Joint Sch. Dist. No. 8 v. Wis. Employee Rels. Comm’n, 429

U.S. 167, 176 n.10 (1976) (“[N]o one would question the absolute

right of the nonunion teachers to … communicate [their] views

to the public …. [or] directly to the very decisionmaking body

charged by law with making the choices raised by the contract

renewal demands.”).

Neither CUNY officials nor reasonable outsiders

would assume that all CUNY faculty and staff members agree with PSC’s positions—or with each other—

about anything. This Court has never upheld a claim

of compelled speech or expressive association where,

as here, the complaining party is not personally required to do anything and there is no public perception

of imputed speech or expressive association. See

D’Agostino, 812 F.3d at 244–45 (reviewing cases);

App. 37a–38a n.10 (same).

Petitioners ignore the role that public perception

plays in delimiting claims of compelled speech and

compelled expressive association. In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547

U.S. 47 (2006), for example, there was no impingement on the law schools’ First Amendment rights

because the presence of military recruiters on campus

would not lead reasonable people to believe that the

“law schools agree[d] with any speech by recruiters.”

Id. at 65, 69. Likewise, in Washington State Grange v.

Washington State Republican Party, 552 U.S. 442

(2008), Chief Justice Roberts explained that “forced

association” would exist only if reasonable outsiders

believe that the plaintiffs “endorse[]” or “agree[] with”

another party’s message. Id. at 459–60 (Roberts, C.J.,

concurring) (“Voter perceptions matter, and if voters

do not actually believe the parties and the candidates

are tied together, it is hard to see how the parties’ associational rights are adversely implicated.”).

Reasonable outsiders understand that an “exclusive representative” in a public employee collective

bargaining system does not act as any individual employee’s “personal representative.” Reisman, 939 F.3d

at 411–13 (emphasis added). Rather, “a union, once it

becomes the exclusive bargaining agent for a bargaining unit, must represent the unit as an entity.” Id.

(emphasis in original); see also Peltz-Steele, 60 F.4th

at 5 (same reasoning); N.Y. Civ. Serv. Law § 204(2)

(exclusive representative serves as the representative

“of all the employees in the appropriate negotiating

unit”).

While petitioners cite cases analogizing the relationship of the exclusive representative to bargaining

unit workers to an agency, fiduciary, or trustee relationship (Pet. 9), “[n]o matter what adjective is used

to characterize it, the relationship is one that is clearly

imposed by law, not by any choice on a dissenter’s

part, and when an exclusive bargaining agent is selected by majority choice, it is readily understood that

employees in the minority, union or not, will probably

disagree with some positions taken by the agent answerable to the majority.” D’Agostino, 812 F.3d at 244;

see also Knight, 465 U.S. at 276 (“The State Board considers the views expressed … to be the faculty’s official

collective position. It recognizes, however, that not

every instructor agrees with the official faculty view

….”).8

8 Different viewpoints exist within every democratic system,

and reasonable people similarly understand that not every parent, constituent, or attorney shares the views of a parent-teacher

association, elected representative, or bar association. See, e.g.,

Lathrop v. Donohue, 367 U.S. 820, 859 (1961) (Harlan, J., concurring) (“[E]veryone understands or should understand that the

views expressed are those of the State Bar as an entity separate

and distinct from each individual.”) (quotation omitted); cf. Bd.

of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250

(1990) (even high school students understand that school does

not endorse speech of school-recognized student groups).

Reasonable outsiders also would not perceive other

bargaining unit members to be speaking for petitioners simply because they are in the same bargaining

unit. In petitioners’ words, the instructional staff bargaining unit is made of up “tens of thousands of other

CUNY employees, regardless of … whether they have

shared … political … interests.” App. 86a (Compl.

¶100). A reasonable person would not perceive that

30,000 frequently opinionated and vocal college faculty members and instructional staff agree with each

other about anything—and particularly not about controversial political issues. When reasonable outsiders

would not perceive a group’s speech as reflecting the

views or endorsement of another person, then that

person has not been forced into an association with the

group in a manner that implicates the First Amendment.

2. None of the compelled speech cases petitioners

cite offer any support for their theory here. In those

cases, the plaintiff was required personally to communicate an unwanted message or prevented from

communicating a desired message. See Moody v.

NetChoice, LLC, 144 S. Ct. 2383, 2394 (2024) (prohibiting social-media platforms from “engag[ing] in

content moderation—to filter, prioritize, and label ...

messages” posted on their platforms); Boy Scouts of

Am. v. Dale, 530 U.S. 640, 653–56 (2000) (forcing organization to accept a “gay rights activist” as a

scoutmaster would “significantly affect [organization’s] expression”); Hurley v. Irish-Am. Gay, Lesbian

& Bisexual Grp. of Boston, 515 U.S. 557, 581 (1995)

(parade organizers were required “to alter the[ir] message”); Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781,

795 (1988) (fundraisers were required to make specific

disclosures to potential donors); cf. Roberts v. United

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

interest in eradicating gender discrimination justified

law forcing organization to accept women as members).9

By contrast, petitioners “are not compelled to act

as public bearers of an ideological message they disagree with,” nor “are they under any compulsion … to

modify the expressive message of any public conduct

they may choose to engage in.” D’Agostino, 812 F.3d at

244.

Petitioners urge that they “want to express their

displeasure with PSC by disaffiliating themselves.”

Pet. 9. They claim a First Amendment right to “boycott entities to express a message.” Pet. 8 (citing

NAACP v. Claiborne Hardware Co., 458 U.S. 886

(1982)). But petitioners have already done so by resigning their memberships and denouncing PSC.

3. Petitioners point out that PSC can “enter into

binding contracts for th[e] employees” in the bargaining unit. Pet. 3, 9. But that is not a First Amendment

issue. Petitioners concede that public employees have

no First Amendment right to force the government to

9 In Rutan v. Republican Party of Ill., 497 U.S. 62, 66, 73

(1990), the Court held that public employees cannot be punished

for refusing to support a political party or its candidates. Petitioners here do not allege that they face any employment

consequences for resigning from PSC membership. The Taylor

Law protects employees’ “right to … refrain from forming, joining, or participating in, any employee organization” and makes

it illegal for a public employer or employee organization “to interfere with, restrain or coerce public employees in the[ir]

exercise of their rights.” N.Y. Civ. Serv. Law §§ 202, 209-a(1)(a)

& (2)(a).

negotiate contract terms with them individually or

through their preferred representative. Pet. 11, 18; see

also Smith v. Ark. State Hwy. Emps., Loc. 1315, 441

U.S. 463, 464–65 (1979) (public employer has no First

Amendment obligation to deal with a union, rather

than with individual employees). In the absence of a

collective bargaining system, the government can—

and generally does—set unit-wide contract terms for

public employees and offer those terms on a take-it-orleave-it basis. That the contract terms instead are set

through negotiations with the bargaining unit’s democratically chosen representative would not lead

reasonable outsiders to believe that every bargaining

unit worker supported every one of those contract

terms.

The labor law cases petitioners cite about the impact of an exclusive representation system on

“individual liberties” (Pet. 13) address economic liberties (like freedom of contract), not First Amendment

speech and association. See Pet. 12–13 (citing Steele v.

Louisville & N.R. Co., 323 U.S. 192, 202–23 (1944);

Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 401

(1950); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.

175, 180 (1967); and 14 Penn Plaza v. Pyett, 556 U.S.

247, 271 (2009)). Those cases do not support petitioners’ arguments here.10

10 Petitioners’ arguments also find no support in Mulhall v.

UNITE HERE Local 355, 618 F.3d 1279 (11th Cir. 2010) (Pet.

15), which did not involve a First Amendment claim. Mulhall

held only that a private-sector employee who objected to union

representation had an “associational interest” sufficient to support standing to allege the violation of a federal statute, not that

exclusive-representative bargaining infringes First Amendment

4. Janus did not modify these First Amendment

principles. Janus held only that public employees who

are not union members cannot be required to pay fees

to an exclusive representative for collective bargaining representation, because “compelled subsidization

of private speech seriously impinges on First Amendment rights.” 585 U.S. at 894. The Court emphasized

that it was “not disputed that the State may require

that a union serve as exclusive bargaining agent for

its employees.” Id. at 895–96, 916.

The Janus Court expressly stated that it was “not

in any way questioning the foundations of modern labor law,” but was instead “simply draw[ing] the line

at allowing the government to … require all employees to support the union irrespective of whether they

share its views.” 585 U.S. at 904 n.7, 916. The Court

explained that its decision would not require an “extensive legislative response,” and that the States

could “keep their labor-relations systems exactly as

they are—only they cannot force nonmembers to subsidize public-sector unions.” Id. at 928 n.27; see also

id. at 896, 928 n.27 (States may “follow the model of

the federal government,” in which “a union chosen by

majority vote is designated as the exclusive representative of all the employees” but there are no agency

fees).

Petitioners point to a passage in Janus describing

exclusive-representative bargaining as “a significant

impingement on associational freedoms that would

not be tolerated in other contexts.” 585 U.S. at 916

(emphasis added); Pet. 14. That passage from Janus,

rights. Id. at 1286–88; see Hill, 850 F.3d at 865 n.3 (distinguishing Mulhall); D’Agostino, 812 F.3d at 244–45 (same).

however, is taken from a paragraph in which the

Court reasoned that exclusive representation in public employment (unlike compulsory financial support)

is constitutional under the line of cases pertaining to

the government’s greater authority under the First

Amendment when it acts as employer. See 585 U.S. at

916 (citing Pickering v. Bd. of Educ., 391 U.S. 563,

564–68 (1968)). The reference to “other contexts”

serves only to make clear that exclusive representation is permitted in the context of public employee

collective bargaining. Thus, “every Court of Appeals to

have addressed the issue post-Janus” has concluded

that exclusive-representative bargaining is consistent

with the First Amendment. Peltz-Steele, 60 F.4th at

7–8.

In sum, none of the cases that petitioners rely upon

cast any doubt on the constitutionality of exclusiverepresentative bargaining for public employees.

III.

Petitioners’ strongly held views do not

change the constitutional analysis.

Petitioners’ accusation that PSC is “anti-Semitic”

(Pet. 1)—which PSC vehemently denies—does not

provide a reason for granting review.

As an initial matter, federal, state, and local law

make it illegal for labor organizations to discriminate

on the basis of religion or creed, and any such discrimination would be actionable under those laws. See,

e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(c); New York State Human Rights Law,

N.Y. Exec. Law § 290 et seq.; New York City Human

Rights Law, 8 N.Y.C. Admin. Code § 8-101 et. seq.;

State Comm’n for Hum. Rts. v. Farrell, 24 A.D.2d 128,

132 (N.Y. App. Div. 1965) (“A party has the right not

to be excluded from the union because of race, creed,

color, or religious persuasion.”). PSC also has a legal

duty of fair representation when it acts as exclusive

representative, and that duty precludes discrimination. See Civ. Serv. Bar Ass’n, Loc. 237, Int’l Bhd. of

Teamsters v. City of New York, 64 N.Y.2d 188, 196

(N.Y. Ct. App. 1984) (quoting Vaca v. Sipes, 386 U.S.

171, 190 (1967)) (duty of fair representation prohibits

“conduct toward a member of the collective bargaining

unit [that] is ... discriminatory”).

Petitioners complain that PSC (meaning PSC’s

Delegate Assembly) approved a resolution calling for

“discussions at the chapter level” to “consider” support

for the Boycott-Divest-Sanction movement. App. 94a.

Although the resolution “condemns racism in all

forms, including anti-Semitism,” App. 93a, petitioners

“believe that this Resolution is openly anti-Semitic.”

App. 74a. Petitioners are entitled to their beliefs, but

those beliefs do not create a First Amendment violation that does not otherwise exist.

In Rumsfeld, for example, law schools argued that

they were forced to associate with a military recruitment policy that they believed to be homophobic, in

contravention of their deeply held beliefs, but the

Court recognized that there was no compelled expressive association—“regardless of how repugnant the

law school considers the recruiter’s message”—because the presence of recruiters on campus would not

lead reasonable people to believe that the law schools

agreed with the recruiters’ message. 547 U.S. at 70.

The same is true here. PSC never represented that

the Delegate Assembly resolution expressed the views

of all faculty. Indeed, the four principal PSC officers

voted against the resolution, and the Union published

letters from faculty members who criticized the resolution.11 Petitioners are free to express their own

messages about PSC, about Israel, and about all other

issues—and they have. See, e.g., App. 37a–38a n.10

(citing Wall Street Journal article by one of the petitioners entitled “I’m Stuck with an Anti-Semitic Labor

Union.”). Neither CUNY officials nor reasonable outsiders would assume that all CUNY instructional staff

agree with a resolution passed by the PSC’s Delegate

Assembly about a controversial issue.

Moreover, the people who petitioners allege hold

odious views about Israel are petitioners’ own coworkers. Yet petitioners have no First Amendment

right to require CUNY to establish separate campuses

or academic departments so petitioners will never interact with colleagues who have different views. Like

the plaintiffs in Rumsfeld, petitioners “attempt[] to

stretch … First Amendment doctrines well beyond the

sort of activities these doctrines protect.” 547 U.S. at

70.

IV.

This case is not a vehicle to consider

exclusive representation outside the

public employment context.

Finally, petitioners urge the Court to grant review

to hold that the principle of exclusive representation

should not be extended outside the public employment

11 See “Debating the Delegate Assembly Resolution,” Clarion

(August 2021), available at https://psc-cuny.org/clarion/2021/august/responses-israel-and-palestine/ (last visited November 16,

2024).

context. Pet. 18–20. This case would not be a vehicle

for considering that issue, because this case concerns

exclusive representation within the public employment context, as in Knight and Janus.

The Court stated in Janus that, while exclusiverepresentative systems might “not be tolerated in

other contexts,” the government’s authority as employer permits exclusive-representative bargaining in

the context of public employment. 585 U.S. at 916 (emphasis added); cf. id. at 895 (“We assume that ‘labor

peace,’” meaning “avoidance of conflict and disruption

that … would occur if the employees in a unit were

represented by more than one union,” “is a compelling

state interest.”). This case does not present the hypotheticals outside the public employment context that

petitioners raise.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

HANAN B. KOLKO

COHEN, WEISS & SIMON

LLP

900 Third Avenue

Suite 2100

New York, NY 10022

SCOTT A. KRONLAND

Counsel of Record

MATTHEW J. MURRAY

ALTSHULER BERZON LLP

177 Post Street, #300

San Francisco, CA 94108

(415) 421-7151

skronland@altber.com

Counsel for Respondent

Professional Staff Congress/CUNY

December 6, 2024

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.