First Circuit Rejects Professor’s First Amendment Challenge to Maine Law Governing University Collective Bargaining

by John M. Simpson.

On October 4, 2019 the U.S. Court of Appeals for the First Circuit affirmed the judgment of a district court dismissing an action brought by an economics professor at the University of Maine at Machias seeking to invalidate, on First Amendment grounds, a Maine statute that governs the collective bargaining process between the University of Maine system and its faculty.  Reisman v. Associated Faculties of the Univ. of Maine, No. 18-2201 (1st Cir. Oct. 4, 2019).    Under the Maine statute, which parallels the federal National Labor Relations Act, a union that is selected in an election as the agent for the members of a collective bargaining unit becomes the exclusive bargaining representative with respect to wages, hours , working conditions and grievances.  While no member of the unit is  obligated to join the union, the union is required to represent all members of the unit without regard to membership.  Plaintiff, who had resigned his membership in the union due to disagreement with some of its positions, argued that the statute was unconstitutional because it allegedly compels him to associate with the union, compels him to speak and to petition the government and attributes the union’s speech to him.  The plaintiff’s argument relied heavily upon the U.S. Supreme Court’s recent decision in Janus v. American Fed’n of State Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448 (2018), which held that a federal statute requiring a public employee to pay an agency fee to a union serving as the exclusive bargaining agent for a public-sector unit was invalid on First Amendment grounds.

The First Circuit rejected the plaintiff’s argument that the Maine statute converted the union into plaintiff’s personal representative and therefore required him to associate with the union whether or not he agreed with its positions:

Considered in context, then, § 1025(2)(E) is not properly read to designate AFUM as Reisman’s personal representative, as he contends.  Rather, that provision merely makes clear that a union, once it becomes the exclusive bargaining agent for a bargaining unit, must represent the unit as an entity, and not only certain of the employees within it, and then solely for the purposes of collective bargaining.

Slip op. at 9-10.

The court also did not agree with plaintiff’s further argument that, even if the union was simply the representative of the unit, as opposed to members individually, it still infringed upon his rights of association.  This was contrary to prior Supreme Court and First Circuit decisions that had found no violation of associational rights when an exclusive bargaining unit speaks for the entire bargaining unit.  See  Minnesota St. Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984); D’Agostino v. Baker, 812 F.3d 240 (1st Cir. 2016).

As to the Janus decision itself, the court seemed to agree with the defendants’ position that Janus was distinguishable because it involved the mandatory payment of fees (union check-off’s), but, in any event, the point was waived for lack of development.