Law Professor’s Anti-Union Suit Sees Long Odds in First Circuit

The First Circuit signaled it’s unlikely to rule that labor unions violate free speech by forcing representation on all employees in a case that seeks to undo appeals court precedent and crack the foundations of labor law.

“We have a Law of the Circuit Doctrine,” Chief Judge David Barron said during oral argument Thursday. “We don’t likely overrule as a panel, or treat as overruled, or undermine a prior panel decision. That’s just the law,” Barron said.

A University of Massachusetts law professor is up against decades of case law in the Supreme Court, First Circuit, and other courts that established that exclusive union representation isn’t a First Amendment violation.

The lawsuit opposes the principle that if most workers vote for a union, the union becomes the sole representative for all workers on issues related to wage and other conditions of employment under the National Labor Relations Act.

Richard Peltz-Steele asked the US Court of Appeals for the First Circuit to reconsider the lower court’s ruling that dismissed his claims. The professor initially sued the UMass Faculty Federation, the attorney general of Massachusetts, and others, after union negotiations with his university during the Covid-19 pandemic left him with a 12% pay cut.

The professor claims that Massachusetts state law violates his constitutional rights because it forces him to be represented by a union that he isn’t a member of and would rather not associate himself with.

The court let Peltz-Steele’s lawyer argue for almost twice as long as he was allotted to prove that this question cannot be settled by past case law.

But the judges struggled to see the connection between exclusive union representation and “a First Amendment problem,” as Barron put it.

Labor Law ‘Pillar’

Peltz-Steele was required to accept UMass Faculty Federation as his exclusive bargaining representative as a condition of his position at the law school.

Due to Covid-related financial hardships, the university proposed laying off more than 80 employees, prompting the union to negotiate with the university. The union and UMass instead agreed to widespread pay cuts that would be larger for employees with bigger salaries.

Even though UMass has since paid employees back for the cuts, “this in no way changes Professor Peltz-Steele’s desire to not associate with and be represented by the Union,” according to his brief.

The exclusive bargaining arrangement “is both compelled speech—the Union speaks on behalf of the employees, as though its speech is the employees’ own speech—and compelled association—the Union represents everyone in the bargaining unit without any choice or alternative for dissenting employees not to associate,” the professor’s brief said.

“This case is one of more than 20 cases filed across the country in the last decade that takes aim at a fundamental pillar—indeed the fundamental pillar—of the American system of labor relations in the public and private sectors,” UMass Faculty Federation said in a brief.

“The union is correct in characterizing your argument as an attack on the exclusive representation of a bargaining unit?” asked Judge Sandra Lynch.

“I have to agree, your honor,” said Reilly Stephens, an attorney for the Liberty Justice Center representing the professor.

Both case law and common sense make clear that it’s wrong to believe that “all members of the bargaining unit agree” with the positions taken by the union “just because a union represents a bargaining unit in negotiating the terms and conditions of employment,” said Assistant Attorney General Timothy Casey, representing the attorney general and others.

One of Many Challenges

Peltz-Steele said the Supreme Court hasn’t directly addressed this issue. But the UMass Faculty Federation and Massachusetts attorney general said there’s plenty of precedent that puts this case to rest.

The US Supreme Court decided in Minnesota State Board for Community Colleges v. Knight that exclusive representation is not a First Amendment violation.

“Every court to consider a First Amendment challenge to exclusive representation has held that Knight controls,” the union’s brief said.

“There’s certainly no prospect that a circuit split will emerge on this point in the near term,” said Jacob Karabell, the member of Bredhoff & Kaiser representing the union.

The First Circuit has upheld the constitutionality of exclusive representation in D’Agostino v. Baker and Reisman v. Associated Faculties of the University of Maine.

Although the Supreme Court more recently ruled in Janus v. American Federation of State, County, and Municipal Employees that requiring non-union public employees to pay union fees violates the First Amendment, the First Circuit found that the 2018 ruling is distinct from other cases around exclusive representation.

“Straightforward application of D’Agostino and Raisman as law of the circuit, therefore, compels rejection of Peltz-Steele’s claim,” the attorney general said in a brief.

The justices grilled the professor’s lawyer on what makes this case different enough that it warrants revisiting the issue and applying Janus.

“In Janus, because there was a payment required, the individual employee in their individual capacity was forced to associate with the speech of the union in the bargaining process,” Barron said.

The Janus opinion “talks quite a bit about exclusive representation and it says it’s a significant impingement upon associational freedoms that would not be tolerated in other contexts,” Stephens said.

“That is a different situation. It’s hard to read that passage as supporting your position,” Barron replied.

The case is Peltz-Steele v. UMass Faculty Fed’n, 1st Cir., No. 22-1466, Oral argument 1/12/23.