23-384
Goldstein v. Professional Staff Congress/CUNY
United States Court of Appeals
For the Second Circuit
August Term 2023
Argued: November 20, 2023
Decided: March 18, 2024
No. 23-384
AVRAHAM GOLDSTEIN, MICHAEL GOLDSTEIN, FRIMETTE KASS-SHRAIBMAN,
MITCHELL LANGBERT, JEFFREY LAX, MARIA PAGANO,
Plaintiffs-Appellants,
v.
PROFESSIONAL STAFF CONGRESS/CUNY, CITY UNIVERSITY OF NEW YORK, JOHN
WIRENIUS, IN HIS OFFICIAL CAPACITY AS CHAIRPERSON OF THE NEW YORK PUBLIC
EMPLOYEE RELATIONS BOARD, ROSEMARY A. TOWNLEY, IN HER OFFICIAL CAPACITY
AS MEMBER OF THE NEW YORK PUBLIC EMPLOYEE RELATIONS BOARD, ANTHONY
ZUMBOLO, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE NEW YORK PUBLIC
EMPLOYEE RELATIONS BOARD, CITY OF NEW YORK, THOMAS P. DINAPOLI, IN HIS
OFFICIAL CAPACITY AS NEW YORK STATE COMPTROLLER,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of New York
No. 22-cv-321, Paul A. Engelmayer, Judge.
Before: KEARSE, CALABRESI, and NATHAN, Circuit Judges.
Plaintiffs are six full-time professors employed by Defendant the City
University of New York and exclusively represented by Defendant Professional
Staff Congress/CUNY (PSC) for collective bargaining purposes. Their complaint
alleges that New York’s Public Employees’ Fair Employment Act (the Taylor Law)
violates Plaintiffs’ First Amendment rights to free speech and association because
it requires them to belong to a bargaining unit exclusively represented by PSC.
They also challenge Section 209-a.2(c) of the Taylor Law, which allows PSC to
decline to represent non-union employees in certain proceedings. Defendants
filed motions to dismiss these claims, which the United States District Court for
the Southern District of New York (Engelmayer, J.) granted.
Plaintiffs appeal the district court’s dismissal of their First Amendment
claims. We agree with the district court that Plaintiffs’ claims are foreclosed by the
Supreme Court’s decision in Minnesota State Board for Community Colleges v. Knight,
465 U.S. 271 (1984). We also agree with the district court that Plaintiffs have failed
to allege that Section 209-a.2(c) of the Taylor Law violates the First Amendment.
Accordingly, we AFFIRM the judgment of the district court.
________
NATHAN J. MCGRATH, Danielle Susanj, The
Fairness Center, Harrisburg, PA (Milton L.
Chappell, William L. Messenger, Glenn M.
Taubman, National Right to Work Legal
Defense Foundation, Inc., Springfield, VA,
on the brief) for Plaintiffs-Appellants.
CLELAND B. WELTON, II (Barbara D.
Underwood, Ester Murdukhayeva, on the
brief) for Letitia James, Attorney General,
State of New York, New York, NY, for
Defendants-Appellees City University of New
York, John Wirenius, Rosemary A. Townley,
Anthony Zumbolo, and Thomas P. DiNapoli.
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SCOTT A. KRONLAND, Matthew J. Murray,
Altschuler Berzon LLP, San Francisco, CA
(Hanan B. Kolko, Cohen Weiss and Simon
LLP, New York, NY, on the brief) for
Defendant-Appellee Professional Staff
Congress/CUNY.
________
PER CURIAM:
BACKGROUND
New York’s Public Employees’ Fair Employment Act, N.Y. Civ. Serv. Law
§§ 200, et seq., commonly referred to as the Taylor Law, authorizes public
employees to bargain collectively with their employer. Under the Taylor Law,
public employees are separated into distinct bargaining units composed of
employees who share “a community of interest.” Id. § 207. A union may then be
certified as the exclusive representative for a bargaining unit. Id. § 204. Once
designated as the exclusive representative, the union is given broad authority to
act on behalf of the bargaining unit. Only the exclusive representative may
negotiate with the employer over “the terms and conditions of employment” of all
employees in the bargaining unit. Id. § 204.2. Indeed, the employer is “required
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to negotiate collectively” with the exclusive representative and is prohibited from
bargaining with anyone else. See id.
Plaintiffs-Appellants Avraham Goldstein, Michael Goldstein, Frimette
Kass-Shraibman, Mitchell Langbert, Jeffrey Lax, and Maria Pagano are six full-
time professors employed by Defendant-Appellee the City University of New
York (CUNY). Each belongs to the same bargaining unit composed of over 30,000
full-time and part-time faculty and staff of CUNY and the CUNY Research
Foundation. Since 1972, this bargaining unit has been exclusively represented by
Defendant-Appellee Professional Staff Congress/CUNY (PSC) for collective
bargaining purposes.
PSC engages in political advocacy on issues related to Israel and Palestine
with which Plaintiffs “vehemently disagree.” App’x 37. Five of the six Plaintiffs,
who identify as Jewish and Zionists, resigned their membership from PSC in 2021
in response to what they describe as PSC’s “anti-Semitic and anti-Israel statements,
actions, and positions.” App’x 29. The sixth Plaintiff, Pagano, resigned around
2010 after PSC allegedly interfered with and refused to represent her in a grievance
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proceeding with CUNY. While all Plaintiffs have resigned from union
membership in PSC, each remains part of the bargaining unit represented by PSC.
PSC and CUNY have entered into various agreements that control the terms and
conditions of Plaintiffs’ employment.
Plaintiffs not only oppose PSC’s political positions but also disagree with
how PSC negotiates their employment terms and conditions. As full-time faculty,
Plaintiffs allege that PSC prioritizes the economic and employment interests of
part-time adjunct professors and other groups over their own.
Plaintiffs also take issue with Section 209-a.2(c) of the Taylor Law, which
limits PSC’s duty of fair representation “to the negotiation or enforcement of the
terms of an agreement with [their] public employer” and excludes any obligation
to represent non-union members in grievance proceedings, disciplinary matters,
or other interactions with CUNY. N.Y. Civ. Serv. Law § 209-a.2(c). As non-union
members who have expressed vocal opposition to PSC’s political views, Plaintiffs
believe that PSC will not fairly represent them in these proceedings.
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In 2022, Plaintiffs filed suit against PSC, CUNY, the City of New York, and
affiliated individuals 1 in their official capacities (collectively, Defendants).
Plaintiffs allege that their First Amendment rights to freedom of association are
violated by the Taylor Law in two respects. First, it unconstitutionally compels
them to associate with PSC and second, it unconstitutionally compels them to
associate with the other CUNY instructional staff in their bargaining unit.
Plaintiffs also assert that their free speech rights are violated because the Taylor
Law authorizes PSC to speak and contract for them. 2
Defendants filed motions to dismiss. In a thorough and well-reasoned
decision, the district court granted the motions to dismiss, concluding that these
claims were “necessarily foreclosed” by the Supreme Court’s decision in Minnesota
State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), which remains
binding law after Janus v. AFSCME, 585 U.S. 878 (2018). Goldstein v. Pro. Staff
1The individual Defendants sued in their official capacities are Chairperson of the New York
Public Employee Relations Board (PERB) John Wirenius, PERB members Rosemary A. Townley
and Anthony Zumbolo, and New York State Comptroller Thomas P. DiNapoli.
2Three of the Plaintiffs also alleged an additional claim that PSC violated their First Amendment
rights by continuing to deduct union dues from their wages after they resigned. The parties
settled this claim, so it is not before us on appeal.
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Cong./CUNY, 643 F. Supp. 3d 431, 443 (S.D.N.Y. 2022). The district court also
explained that even if Knight did not foreclose these claims, the complaint
nonetheless failed to state a claim that Plaintiffs’ First Amendment free speech or
associational rights were violated. The district court also rejected Plaintiffs’
challenge to Section 209-a.2(c) of the Taylor Law, which limits the duty of fair
representation owed by an exclusive representative to its non-union members.
DISCUSSION
“We review a district court’s grant of a motion to dismiss de novo, accepting
as true all factual claims in the complaint and drawing all reasonable inferences in
the plaintiff’s favor.” Henry v. Cnty. of Nassau, 6 F.4th 324, 328 (2d Cir. 2021)
(quotation marks omitted).
We conclude that PSC’s exclusive representation of Plaintiffs in collective
bargaining with CUNY does not violate the First Amendment. In reaching our
conclusion, we join each of our sister circuits to have addressed this issue since the
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Supreme Court’s decision in Janus. 3 We also reject Plaintiffs’ challenge against
Section 209-a.2(c) of the Taylor Law, which limits the duty of an exclusive
representative to represent non-union employees in certain proceedings.
I. PSC as the Exclusive Representative
The Supreme Court’s decision in Knight forecloses Plaintiffs’ claims
challenging PSC as their exclusive representative. In Knight, community college
professors challenged two provisions of a Minnesota law requiring the state to (1)
“meet and negotiate” with the plaintiffs’ exclusive representative over
employment terms and conditions, and (2) “meet and confer” with the exclusive
representative on policy questions outside the scope of mandatory bargaining. 465
U.S. at 274–75. Under the law, “the employer may neither ‘meet and negotiate’
3See e.g., Peltz-Steele v. UMass Faculty Fed’n, 60 F.4th 1, 4–8 (1st Cir. 2023); Adams v. Teamsters Union
Loc. 429, No. 20-1824, 2022 WL 186045, at *2–3 (3d Cir. Jan. 20, 2022) (unpublished); Uradnik v.
Inter Fac. Org., 2 F.4th 722, 725–27 (8th Cir. 2021); Hendrickson v. AFSCME Council 18, 992 F.3d 950,
968–70 (10th Cir. 2021), cert. denied, 142 S. Ct. 423 (2021); Bennett v. Council 31 of the AFSCME, 991
F.3d 724, 727, 733–35 (7th Cir. 2021), cert. denied, 142 S. Ct. 423 (2021); Akers v. Maryland State Educ.
Ass’n, 990 F.3d 375, 382–83 n.3 (4th Cir. 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); Mentele v. Inslee, 916 F.3d 783, 786–91 (9th
Cir. 2019), cert. denied, 140 S. Ct. 114 (2019).
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nor ‘meet and confer’ with any members of that bargaining unit except through
their exclusive representative.” Id. at 275.
The Supreme Court summarily upheld the validity of the “meet and
negotiate” provision, Knight v. Minnesota Cmty. Coll. Fac. Ass'n, 460 U.S. 1048
(1983), and issued a separate opinion concluding that the “meet and confer”
provision was also constitutional, Knight, 465 U.S. at 273. The Court held that
excluding non-union members from “meet and confer” sessions did not violate
their First Amendment rights because public employees do not have a
“constitutional right to force the government to listen to their views.” Id. at 283.
Plaintiffs argue that Knight does not foreclose their claims because their
complaint seeks only to prevent PSC from speaking on their behalf; it does not
seek any right to attend meetings between PSC and CUNY. That reading of Knight
is far too narrow. In Knight, the Court explained that excluding non-union
members from “meet and confer” sessions to discuss policy questions separate
from collective bargaining “in no way restrained [the employees’] freedom to
speak on any education-related issue or their freedom to associate or not to
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associate with whom they please, including the exclusive representative.” Id. at
288. The employees’ “associational freedom ha[d] not been impaired” because
they remained “free to form whatever advocacy groups they like[d]” and were
“not required to become members” of the union. Id. at 289. Moreover, while the
union’s “unique status” as the exclusive representative “amplifie[d] its voice in the
policymaking process,” the Court explained that “[a] person’s right to speak is not
infringed when government simply ignores that person while listening to others.”
Id. at 288. Therefore, restricting attendance at these meetings to the exclusive
representative violated neither the plaintiffs’ free speech nor associational rights.
Id. at 288–90.
For the same reasons, the exclusive collective bargaining regime that
Plaintiffs are subject to under the Taylor Law poses no First Amendment problem.
Designating PSC as Plaintiffs’ exclusive bargaining representative does not
impermissibly burden Plaintiffs’ ability to speak with, associate with, or not
associate with whom they please, including CUNY and PSC. Plaintiffs are free to
resign their membership from the union or to engage in public dissent against
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PSC’s views. The prudential pressure that Plaintiffs may reasonably feel to join
the union—despite their deep objections to its political positions—“is no different
from the pressure to join a majority party that persons in the minority always feel”
and thus “does not create an unconstitutional inhibition on associational
freedom.” See id. at 290.
Any legal authority that PSC has to negotiate on behalf of Plaintiffs is
restricted to the narrow scope of collective bargaining with CUNY. This means
only that Plaintiffs may not themselves directly bargain with or select their own
representative to bargain with CUNY over their employment terms. However, the
First Amendment does not guarantee public employees the right to engage in
collective bargaining with their employer. See id. at 283 (“[Public employees] have
no constitutional right to force the government to listen to their views.”).
Despite Plaintiffs’ contentions, reading Knight to foreclose Plaintiffs’ claims
does not contravene the Supreme Court’s more recent decision in Janus, which
held that the First Amendment prohibits a public-sector union from assessing
mandatory “agency fees” against non-union members of the collective bargaining
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unit. 585 U.S. at 929–30. Janus invalidated these mandatory agency fees because
the First Amendment prohibits “[c]ompelling a person to subsidize the speech of
other private speakers.” Id. at 893. But that holding does not undermine the
constitutionality of exclusive representation by public-sector unions that do not
assess mandatory agency fees. To the contrary, as we recognized in a recent
opinion, “Janus invalidated the collection of agency fees from non-union members
but left intact labor-relations systems exactly as they are.” Wheatley v. New York
State United Tchrs., 80 F.4th 386, 388 (2d Cir. 2023) (quotation marks omitted); see
also Janus, 585 U.S. at 904–05 n.7 (“[W]e are not in any way questioning the
foundations of modern labor law.”).
Accordingly, we conclude that Plaintiffs’ First Amendment challenges
against the designation of PSC as their exclusive bargaining representative are
directly foreclosed by Knight.
II. Section 209-a.2(c) of the Taylor Law
We also reject Plaintiffs’ contention that Section 209-a.2(c) of the Taylor Law,
which limits the fiduciary duty that an exclusive representative owes to non-union
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members in its bargaining unit, “exacerbate[s]" and “compound[s]” their First
Amendment injuries. Appellant’s Br. at 22–24.
Section 209-a.2(c) of the Taylor Law relieves an exclusive representative of
any obligation to represent its non-union employees in any “grievance, arbitration
or other contractual process concerning the evaluation or discipline of a public
employee” where the employee may select their own representative. N.Y. Civ.
Serv. Law § 209-a.2(c). Under the duty of fair representation, an exclusive
representative must fairly represent all employees, including those who are not
union members, when bargaining on their behalf. See Steele v. Louisville & N.R. Co.,
323 U.S. 192, 201 (1944). This “duty is a necessary concomitant of the authority
that a union seeks when it chooses to serve as the exclusive representative of all
the employees in a unit,” Janus, 585 U.S. at 901, because employees in the unit have
no choice but to be represented by the exclusive representative in negotiating their
employment terms. Courts have not, however, suggested that the duty of fair
representation extends beyond collective bargaining—to proceedings where
employees are free to select their own representatives.
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To the contrary, the Supreme Court has invited the precise approach to
exclusive representation adopted by New York’s Taylor Law. In invalidating
mandatory agency fees, Janus rejected an argument that employees who have
resigned from union membership should still be required to pay agency fees
because the union still represents them in disciplinary proceedings. See id. at 900–
01. The Court reasoned that unions can “eliminate[]” this “unwanted burden” by
simply denying non-union members representation in these proceedings
altogether. See id.
We therefore disagree with Plaintiffs that the limited fiduciary duty
imposed by Section 209-a.2(c) of the Taylor Law burdens their First Amendment
rights.
CONCLUSION
For the reasons stated above, the judgment of the United States District
Court for the Southern District of New York is AFFIRMED.
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