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Reisman v. Associated Faculties of University of Maine

United States District Court, D. Maine

December 3, 2018

JONATHAN REISMAN Plaintiff,
v.
ASSOCIATED FACULTIES OF THE UNIVERSITY OF MAINE, UNIVERSITY OF MAINE AT MACHIAS, and the BOARD OF TRUSTEES OF THE UNIVERSITY OF MAINE SYSTEM Defendants, and STATE OF MAINE Intervenor.

          ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

          JON D. LEVY U.S. DISTRICT JUDGE.

         Jonathan Reisman, a professor at the University of Maine at Machias, challenges a state law which authorizes a faculty union elected by a majority of employees, to bargain collectively and exclusively on behalf of all employees as a violation of his First Amendment rights of speech and association. Reisman has moved for a preliminary injunction that would enjoin the Associated Faculties of the University of Maine, the union that represents Maine's public university faculty, from holding itself out as his representative, and that would enjoin the board of the University of Maine System from regarding the union as his representative and agent. The Defendants have moved to dismiss Reisman's complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted.

         I. BACKGROUND

         The University of Maine System Labor Relations Act (the “Act”), 26 M.R.S.A. § 1021, et seq. (West 2018), establishes the collective bargaining rights of the employees of Maine's public institutions of higher education. Plaintiff Jonathan Reisman is one such employee, serving as a professor of economics at the University of Maine at Machias (the “University”). He contends that the Act violates his First Amendment rights of free speech and association by enabling the Defendant Associated Faculties of the University of Maine (the “Union”), having been elected by a majority of employees as the bargaining agent, to bargain collectively and exclusively on behalf of all employees who comprise the bargaining unit. Reisman is not, however, a member of the Union and he disagrees with its positions on various issues of public import.

         The Act provides that a majority of employees in a bargaining unit may choose to be represented by a union for purposes of collective bargaining with the University regarding “wages, hours, working conditions and contract grievance arbitration.” 26 M.R.S.A. §§ 1025, 1026(1)(C). Employees are not required to be union members. Id. at §§ 1023(2), 1027(1)(G). A union that receives the majority of the votes is certified and “recognized by the [U]niversity . . . as the sole and exclusive bargaining agent for all of the employees in the bargaining unit.” Id. at § 1025(2)(B). Such a union “is required to represent all the [U]niversity . . . employees within the unit without regard to membership in the organization certified as bargaining agent.” Id. at § 1025(2)(E).

         Reisman seeks a preliminary injunction under Fed.R.Civ.P. 65(a) that would enjoin the Union from holding itself out as his representative, and also enjoin the Defendant Board of Trustees of the University of Maine System (the “Board”) from treating the Union as his representative and agent. In response, the Union, the Board and the University, along with the intervenor Attorney General of the State of Maine (“Maine”), move to dismiss Reisman's complaint under Fed.R.Civ.P. 12(b)(6) for failing to state a claim. Because I conclude that Reisman's complaint fails to state a claim, I deny his motion for a preliminary injunction, grant the Union's, the University and the Board's, and the State's motions to dismiss, and order the dismissal of this case.

         II. ANALYSIS

         To survive a motion to dismiss, the complaint “must contain sufficient factual matter to state a claim to relief that is plausible on its face.” Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013). In evaluating a motion to dismiss, the Court will accept all well-pleaded facts as true and draw all reasonable inferences in the plaintiff's favor. Id. at 52-53. Determining the plausibility of a claim is a context-specific task that requires the court “to draw on its judicial experience and common sense.” Id. at 53 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

         Reisman argues that the Act imposes on him “a government-appointed lobbyist who attempts to influence government on his behalf and in his name, as his agent and representative, even though he disagrees with the positions it attributes to him.” ECF No. 5 at 7. This, he contends, gives rise to two First Amendment violations: First, Reisman contends that the Act violates his right to free speech because it effectively compels him to speak on matters from which he chooses to refrain from speaking. See Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“[Freedom of speech] includes both the right to speak freely and the right to refrain from speaking at all.”). In his declaration filed in support of his motion, Reisman expresses his opposition to numerous positions the Union has taken on his behalf relating to, among other things, wages, hours, and conditions of employment, as well as various other positions and actions by the Union: for example, its decision to expend funds opposing the election of Maine governor Paul LePage in 2010 and 2014, and its support for presidential candidate Hilary Clinton in 2016. Second, Reisman argues that the Act violates his right of free association because it compels him to associate with the Union, an organization whose speech he chooses not to be associated with. See Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council 31, 138 S.Ct. 2448, 2463 (2018) (“The right to eschew association for expressive purposes is likewise protected.”). Although Reisman does not claim that he or any particular organization he is associated with has a right to participate in bargaining sessions, he does contend that he cannot be compelled to associate with the Union “through its advocacy as his representative or agent.” ECF No. 5 at 15.

         Stated succinctly, Reisman's constitutional challenge to the Act is that by establishing the Union as the exclusive bargaining agent of the University's professors, the Act violates his First Amendment right of free speech and association by depriving him of the right to “decide what not to say” and by placing him in an agency relationship with the Union, thereby forcing him into an unwanted expressive association. ECF No. 38 at 5.

         The Union, the University and the Board, and the State all contend that Reisman's constitutional arguments are contrary to established precedent of the Supreme Court and the First Circuit Court of Appeals: Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271 (1984), which rejected a challenge to a Minnesota collective bargaining statute similar to the Act on grounds similar to those Reisman asserts, and D'Agostino v. Baker, 812 F.3d 240 (1st Cir. 2016), cert. denied, 136 S.Ct. 2473 (2016), which similarly rejected a challenge to the exclusive representation provisions of a Massachusetts collective bargaining statute. Reisman points, however, to a more recent Supreme Court decision-Janus-as having shifted the constitutional framework by requiring that a more exacting degree of judicial scrutiny be applied to statutes that are alleged to infringe on speech and associational rights. In his view, Janus undermines the vitality of the Knight and D'Agostino decisions.

         Knight involved a challenge by college instructors to a Minnesota law mandating that a union representative selected as their exclusive bargaining agent concerning “the terms and conditions of employment” also be their exclusive agent in “meet and confer” sessions with school officials covering other matters outside the scope of mandatory union negotiations. 465 U.S. at 274-75. The Court upheld the statute, finding that the professors' “speech and associational rights . . . have not been infringed by [the] restriction of participation in ‘meet and confer' sessions to the faculty's exclusive representative.” Id. at 288.

         Reisman attempts to distinguish Knight, arguing that Knight only addresses associational exclusion because the Minnesota statute denied professors the opportunity to speak at “meet and confer” sessions, while his challenge to the Act is broader because the Act compels him to associate and speak against his beliefs. ECF No. 38 at 14. The Knight decision, however, is not so narrow. The Court explained that “[t]he state has in no way restrained appellees' 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). In reaching this conclusion, the Court expressly noted that, like here, the state considered the exclusive union representative's views to be the official collective position of all faculty and recognized “that not every instructor agrees with the official faculty view on every policy question.” Id. at 276. Knight is therefore not distinguishable from the present case, and it forecloses Reisman's First Amendment claims.

         In D'Agostino, the First Circuit, relying in part on Knight, affirmed the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) which challenged a statutory scheme which-like the one at issue here-authorized exclusive representation in collective bargaining for public employees. 812 F.3d at 242. The First Circuit squarely rejected the plaintiffs' alleged First Amendment violation, reasoning that “exclusive bargaining representation by a democratically selected union does not, without more, violate the right of free association on the part of dissenting non-union members ...


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