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Agency fee payors didn’t choose union; mere representation during collective bargaining not protected association

By Ronald Miller, J.D.

Being represented by a labor union during collective bargaining by itself does not confer First Amendment protection and the heightened scrutiny that comes with it.

The First Amendment right to association for agency fee payors (AFPs) was not protected solely because they were represented by a union during collective bargaining, ruled the Second Circuit,  vacating and remanding in part a district court’s decision. Rather, the appeals court observed, the AFPs were represented by the union not because of their choice to engage with the union but by operation of New York law and the terms of the CBAs. Thus, the matter was remanded to determine whether the layoff of 13 AFPs was justified under rational basis review. However, the appeals court reaffirmed its decision under Rowland that strict scrutiny applied to employment decisions based on an employee’s status as a union member (Donahue v. Milan, November 18, 2019, Lohier, R., Jr.).

Union concessions sought. In response to significant financial pressures, including mounting debt for infrastructure repair and rising health insurance costs for employees, the New York Thruway Authority implemented cost-saving measures, including a wage freeze for nonunion employees. In 2012, the Authority’s credit rating fell as it prepared to replace a bridge. The Authority sought concessions from its unions during negotiations over new collective bargaining agreements.

Reduction in force. Union-represented employees were divided into two groups: union members and nonmembers who were nonetheless represented by unions in collective bargaining. The nonmembers were obligated to pay agency fees under Abood v. Detroit Bd. of Educ., the then-governing law. Beginning in 2012, the Authority warned both the union and union-represented employees that layoffs might result from the unions’ refusal to make certain concessions. After talks broke down, the Authority implemented reductions in force. The RIF eliminated 231 full-time positions, including 218 union members and 13 agency fee payors.

Following the RIF, two unions sued the Authority and a number of state officials under 42 U.S.C. § 1983 and New York law, alleging that the terminations of union-represented employees violated the employees’ First Amendment right of association. Relying on State Employees Bargaining Agent Coalition v Rowland, the parties filed cross-motions for summary judgment.

District court. Describing Rowland as “fundamentally concerned with the use of targeted layoffs to penalize and pressure the bargaining coalition to accept the defendants’ concessions to sign a new CBA,” the district court concluded that heightened scrutiny applied to employment decisions based on union representation—without regard to whether the affected employees were union members. Accordingly, the district court denied summary judgment because material factual disputes remained with respect to whether the RIF was narrowly tailored to serve a vital state interest.

After the district court denied the Authority’s motion for reconsideration, it certified an interlocutory appeal to the Second Circuit on the question: Under Rowland, are union-represented individuals during the bargaining process a protected class, such that employment decisions based on employees’ union representation during collective bargaining are subject to strict scrutiny?

Question on appeal. The district court had applied heightened scrutiny to the Authority’s termination of AFPs based on their union representation. On appeal, the Second Circuit considered a slightly modified question: “Under Rowland, do employees enjoy First Amendment protections merely because they are represented by a union during collective bargaining such that an employment decision based on that representation is subject to strict scrutiny?”

Representation vs. membership. The appeals court ruled that under Rowland, employees do not enjoy First Amendment protections merely because they are represented by a union during collective bargaining to require that an employment decision based on that representation be subject to strict scrutiny. However, the appeals court reaffirmed its decision under Rowland that strict scrutiny applied to employment decisions based on an employee’s status as a union member.

Heightened scrutiny. As explained in Rowland, conditioning public employment on union membership inhibited an employee’s fundamental right to associate with a union and therefore triggered heightened scrutiny. But Rowland did not say that being represented by a labor union during collective bargaining by itself conferred First Amendment protection and the heightened scrutiny that comes with it.

No interference with associational rights. As a consequence, the appeals court disagreed with the unions’ argument that the AFPs were protected by the First Amendment solely because a union represented them during collective bargaining. All AFPs are represented by the union not because of their choice to engage with the union, but by operation of New York law and the terms of the CBAs. Consequently, AFPs who affirmatively disassociated with a union by objecting to paying for a union’s political and ideological projects, but who continued to be represented by the union during collective bargaining, could not claim that an adverse employment action interfered with their right to associate with the union.

Rational basis review. In extending Rowland to all AFPs purely because they were presented by a union in collective bargaining, the district court went too far. Accordingly, the Second Circuit concluded that AFPs do not have a First Amendment right to freedom of association merely because they are represented by a union during collective bargaining. The case was remanded to the district court to determine whether the layoffs of the 13 AFPs were justified under rational basis review.

Union members. However, the termination of the union members was another matter. Under Rowland, union members clearly enjoy a First Amendment right to associate in labor unions. If the Authority terminated the union members because of their union membership—a factual question the district court decided to let a jury decide—then strict scrutiny applies to its employment decision. Accordingly, the appeals court affirmed the decision of the district court as it applied to those employees who are union members.