D'Agostino et al v. Patrick et al
Filing
33
District Judge Leo T. Sorokin: MEMORANDUM AND ORDER entered. Plaintiffs have raised a considered First Amendment challenge to a new state statute plowing relative new ground. The Court appreciates the parties thoughtful briefs and the fine oral argum ent presented by counsel. For the reasons stated above, the Defendants Motions to Dismiss, Doc. Nos. 21 and 23, are ALLOWED. The Clerk shall enter judgment dismissing this action in favor of Defendants and close this matter. re 21 Motion to Dismiss for Failure to State a Claim; 23 Motion to Dismiss for Failure to State a Claim (Simeone, Maria)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________________
KATHLEEN D’AGOSTINO;
DENISE BOIAN; JEAN M. DEMERS;
DENISE FARLEY;
STEPHANIE KOZLOWSKI- HECK;
LESLIE MARCYONIAK;
ELIZABETH MONGEON;
LAURIE SMITH; and KELLY WINSHIP,
Plaintiffs,
v.
Civil Action No. 1:14-cv-11866-LTS
GOVERNOR DEVAL PATRICK,
In His Official Capacity as Governor
of the Commonwealth of Massachusetts;
THOMAS L. WEBER,
in His Official Capacity as the Director
of the Department of Early Education and Care;
and SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 509,
Defendants.
_______________________________________
MEMORANDUM AND ORDER
March 13, 2015
SOROKIN, J.
I.
INTRODUCTION
Plaintiffs, individuals who operate child care businesses in their homes, seek to declare
unconstitutional, 2012 Mass. Act 189, “An Act Relative to Early Education and Care by Family
Child Care Providers” codified at Mass. Gen. Laws ch.15D §§ 2(u), 17(a)-(k); 150E, § 7(c); and
ch.180, §17G (the “Act”) which designates as public employees, for purposes of collective
1
bargaining, those family child care providers who accept government subsidies through
vouchers. Plaintiffs allege that they are being compelled to associate with the defendant,
Services Employees International Union, Local 509 (“SEIU” or “Union”) as their exclusive
representative in violation of their First Amendment rights. Defendants move to dismiss the
Amended Complaint on the grounds Plaintiffs have failed to state a claim upon which relief can
be granted. Fed. R. Civ. P. 12(b)(6). For the reasons set forth herein, Defendants’ Motion is
ALLOWED and Plaintiffs’ First Amended Complaint is hereby DISMISSED.
II.
Relevant Facts
The facts are undisputed. On August 1, 2012, then Governor Deval Patrick signed into
law, 2012 Mass. Acts ch.189 entitled “An Act Relative to Early Childhood Education and Care
by Family Child Care Providers.” The Act, codified at Mass. Gen. Laws. ch. 15D, § 17,
incorporates pre-existing Massachusetts labor statutes set forth in Mass. Gen. Laws ch. 150E et.
seq. A “family child care provider” (“Provider”) is a person “who provides family child care
services on behalf of low-income and other at risk children and receives payment from the
Commonwealth for such services pursuant to a rate structure for voucher and contracted
payments.” Mass. Gen. Laws ch. 15D, § 17(a). Providers are employees of the Commonwealth
for the limited purpose of collective bargaining. Mass. Gen. Laws ch. 15D, §§ 17(b)-(c).
Providers are not employees of the Commonwealth for any other purpose. Id. The Act allows
Providers to elect a union to be their “exclusive representative” for the purpose of collective
bargaining. Mass. Gen. Laws ch. 15D, § 17(b); ch. 150E, § 2.
The exclusive representative “shall have the right to act for and negotiate agreements
covering all employees in the unit and shall be responsible for representing the interests of all
such employees without discrimination and without regard to employee organization
2
membership.” Mass. Gen. Laws ch. 150E, § 5. Chapter 150E, § 6 obligates the Massachusetts
Department of Early Education and Care (“EEC”), on behalf of the Commonwealth, to negotiate
with the exclusive representative over traditional mandatory subjects of bargaining. These
include “wages, hours, standards or productivity and performance, and any other terms and
conditions of employment,” ch. 150E, § 6, as well as “developing and encouraging greater
education and training opportunities for family child care Providers, improvement of recruitment
and retention of qualified Providers and reimbursement and payment procedures.” Mass. Gen.
Laws ch. 15D, § 17(g). The Act also provides that the EEC must “bargain about the rate structure
for voucher and contracted payments.” Mass. Gen. Laws ch. 15D, § 17(h). In addition to
requiring bargaining over mandatory subjects, the Act allows for negotiation over permissive
subjects, stating that “[n]othing in this section shall inhibit the parties from discussing other
permissive subjects of bargaining, including, but not limited to, the rate structure for family child
care Providers.” Mass. Gen. Laws ch. 15D, § 17(h).
The selection of an exclusive representative under Chapter 150E does not require any
Providers to join the Union. Mass. Gen. Laws ch. 150, § 2. Massachusetts law protects the “right
to refrain” from joining a union, ch. 150E, § 2, and makes it a “prohibited practice” to restrain or
coerce any employee in the exercise of that right. Mass. Gen. Laws ch. 150E, § 10(a)(1), (b)(1).
Moreover, individual Providers retain the right to bypass the exclusive representative and present
grievances directly to EEC, with the caveat that the union has an opportunity to be present.
Mass. Gen. Laws ch. 150E, § 5. Any remedy EEC implements, “shall not be inconsistent with
the terms of an agreement then in effect between the employer and the exclusive representative.”
Mass. Gen. Laws ch. 150E, § 5.
3
EEC recognized SEIU as the exclusive representative for the Providers as certified In the
Matter of Dept. of Early Education and Care and Local 509, Service Employees International
Union, Case No. WMAS-12-2391 by the Commonwealth of Massachusetts, Department of Labor
Relations on November 7, 2012. Doc. No. 1-1 at 2. Plaintiffs have not challenged the election
process, nor have they alleged that the process established in the legislation, or implemented
thereafter by the Commonwealth, precluded--in a First Amendment sense--anyone other than
SEIU from competing for the position of exclusive representative.1
After certification, SEIU negotiated with EEC and the parties entered into a collective
bargaining agreement (“CBA”), which remains in effect through June 30, 2016. Doc. No. 15 ¶
23; Doc. No. 1-1. The CBA addresses such things as payment rates, training, and grievance
procedures, and paid holidays and professional days for family child care providers. Doc. No. 1-1.
The CBA also obligates EEC to review and assess other issues affecting family child care
providers (such as the need for non-standard child care hours, children with special needs, and
paid time-off), and to conduct face-to-face trainings and webinars. Id.
Plaintiffs contend they are being compelled to associate with SEIU “for expressive
purposes” because of SEIU’s exclusive representation. Doc. No. 15 ¶ ¶ 32, 33. Specifically, they
argue the Act thrusts them into a mandatory agency relationship with SEIU for petitioning and
contracting with the Commonwealth, and affiliates them with the SEIU’s petitioning, contracts,
and policy positions. Doc. No. 25 at 7-11. Thus, Plaintiffs argue such compulsion violates their
rights to freedom of association and expression under the First Amendment of the United States
1
The Act was passed after the Massachusetts voters rejected a ballot initiative that called for
unionizing of family care providers. Doc. No. 25 at 6. At the hearing Plaintiffs suggested that the
Commonwealth “picked” SEIU to serve as the exclusive representative based upon the timing of
the legislation and its election. The Plaintiffs, however, do not set forth any allegation that the
Commonwealth determined, in any meaningful sense, who the exclusive representative would
be.
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Constitution, as secured against state infringement by the Fourteenth Amendment and 42 U.S.C.
§ 1983. Doc. No. 15 ¶ ¶ 32, 33. They make no challenge, however, to the substantive provisions
of either the Act or the CBA; they confine their claim solely to the First Amendment.
III.
DISCUSSION
A. Standard of Review
“Where a party challenges the constitutionality of a statute on its face, and further factual
development is immaterial to dispositive legal issues, a complaint may be dismissed for failure to
state a claim under Rule 12(b)(6).” Brown v. Dep’t of Veterans Affairs, 451 F. Supp. 2d 273,
277 (D. Mass. 2006) (citing Cook v. Rumsfeld, 429 F. Supp. 2d 385, 387, 405 (D. Mass. 2006)
(dismissal under Rule 12(b)(6) appropriate “where there are dispositive issues of law that bar the
plaintiffs' claims even if they are able to prove the factual assertions made in the complaint”)).
B. Relevant Supreme Court Cases
There is no dispute the First Amendment protects every individual’s right to associate for
purposes of petitioning the government and influencing public policy. Citizens Against Rent
Control v. City of Berkeley, 454 U.S. 290, 294-95 (1981). This right necessarily includes the
right not to associate. Knox v. Serv. Employees Int'l Union, Local 1000, 132 S. Ct. 2277 (2012)
(citation omitted). As to these legal truisms the parties agree. The parties disagree, however,
with their respective reading and application of Supreme Court precedent and the meaning of
SEIU’s exclusive role.
1. Minnesota v. Knight
In Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), the
Supreme Court considered a constitutional challenge to the Minnesota Public Employment Labor
Relations Act (“PERLA”). PERLA enabled public employees to select an exclusive bargaining
5
representative to “meet and negotiate” and “meet and confer” with their government employer.
Id. at 274. The “meet and negotiate” provision related to traditional collective bargaining issues,
but the “meet and confer” provision related to policy issues which were outside the scope of
collective bargaining. Id. at 274-75. The Minnesota Community College Faculty Association
(MCCFA) was elected as the exclusive representative of the faculty for purposes of “meet and
negotiate” and they also organized “meet and confer” committees on individual campuses. Id. at
275. The committee members were all faculty members who belonged to MCCFA. Id. at 276.
During the district court proceedings, non-member MCCFA faculty challenged the
constitutionality of PERLA as it related to both “meet and negotiate” and “meet and confer”
provisions. Knight v. Minn. Cmty. Coll. Faculty Assoc., 571 F. Supp. 1, 4, 6 (D. Minn. 1982).
Plaintiffs argued the MCCFA was inherently political and therefore violated their First
Amendment associational rights by compelling association. Relying on Abood v. Detroit Board
of Education, 431 U.S. 209 (1977), which held that non-union public employees could be
compelled to pay a fee for those activities related to collective bargaining, the district court in
Knight held that the exclusive representation for purposes of “meet and negotiate” was
constitutional because it was related to collective bargaining. Knight, 571 F. Supp. at 6. The
issue for the district court turned on whether the MCCFA’s exclusive representation related to
collective bargaining activities. Id. Accordingly, with respect to the “meet and negotiate”
provision, the district court held MCCFA’s activities related to collective bargaining and
therefore the court upheld the constitutionality of that part of PERLA. Id. The Supreme Court
6
affirmed summarily this part of the district court’s decision. Knight v. Minn.Cmty. Coll. Faculty
Assoc., 460 U.S. 1048 (1983).2
However, with respect to the “meet and confer” provision of PERLA, the district court
held that by permitting the MCCFA to select only its own members, non-MCCFA faculty were
deprived of their constitutional rights. Knight, 571 F. Supp. at 9. Finding no compelling interest
for the state to exclude non-MCCFA from the selection of committee members for the “meet and
confer” meetings, the district court granted declaratory relief and enjoined MCCFA from
selecting “meet and confer” representatives without affording all faculty, including the nonMCCFA faculty, an opportunity to participate in a selection process. Id. at 11, 13.
On appeal to the Supreme Court of this part of the district court’s decision, Justice
O’Connor writing for the majority, stated the question was whether the “restriction on
participation in the nonmandatory-subject exchange process violate[d] the constitutional rights of
professional employees within the bargaining unit who are not members of the exclusive
representative and who may disagree with its views.” Minn. State Bd. for Cmty. Coll. v. Knight,
465 U.S. 271, 273 (1984). The Supreme Court reversed the district court, holding the “meet and
confer” provision of PERLA was constitutional. Id. at 290. In so holding, the Court reasoned, in
relevant part, that the non-MCCFA members were not compelled to associate, but were instead
free to express their views on the subject of educational policy and were free to associate with
whomever they chose because membership in MCCFA was not required by PERLA. Id. at 286.
Further, although the MCCFA’s views may be considered to be the faculty’s official collective
position, there remained a recognition that not every instructor agrees with the official faculty
view on every policy question. Id. at 276. Like the respondents in Knight, Plaintiffs here are not
A Supreme Court’s summary affirmance is binding. Auburn v. Police Union Carpenter, 8 F.3d
886, 894 (1st Cir. 1993).
2
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required to join SEIU. They are free to express their views and to associate with whomever they
chose. Moreover, there exists the inherent recognition that not all non-SEIU members will agree
with their views.
Nonetheless, Plaintiffs insist that Knight is not controlling because it is not a “compelled
association case” and “addressed only whether it is constitutional to exclude employees from
union bargaining sessions with public officials.” Doc. No. 25 at 13. Not so. The Supreme Court
did, indeed, consider the issue of compelled association holding specifically that the “State has in
no way restrained appellees’…freedom to associate or not to associate with whom they please,
including the exclusive representative.” Knight, 465 U.S. at 288 (emphasis added). And, the
Supreme Court reiterated:
Similarly, appellees’ associational freedom has not been impaired. Appellees are
free to form whatever advocacy groups they like. They are not required to become
members of MCCFA…Appellees may well feel some pressure to join the
exclusive representative in order to give them the opportunity to serve on the
“meet and confer” committees or to give them a voice in the representative's
adoption of positions on particular issues. That pressure, however, is no different
from the pressure they may feel to join MCCFA because of its unique status in the
“meet and negotiate” process, a status the Court has summarily approved.
Moreover, the pressure is no different from the pressure to join a majority party
that persons in the minority always feel. Such pressure is inherent in our system
of government; it does not create an unconstitutional inhibition on associational
freedom.
Id. at 289-90 (emphasis added).
Finally, Justice Brennan joining the dissent in Knight, was of the view that the case
involved two First Amendment issues—the free exchange of ideas and, the right to be free from
compelled association. Id. at 297. In his opinion the “meet and confer” provisions violated the
non-MCCFA members’ First Amendment rights because it forced them to make a Hobson’s
choice – the choice between their right to voice their views, and their right not to be compelled to
associate. Id. The majority, aware of the dissent, did not adopt its reasoning.
8
Thus, application of Knight would lead to DISMISSAL of Plaintiffs’ Amended
Complaint.
2. Harris v. Quinn
In the face of Knight, Plaintiffs argue the recent Supreme Court decision in Harris v.
Quinn, 134 S. Ct. 2618 (2014), makes clear that collectivizing child care businesses cannot
survive constitutional scrutiny. Doc. No. 25 at 4. This Court does not agree with Plaintiffs’
reading of Harris. In Harris, Illinois unionized, for purposes of petitioning the State over its
Medicaid rates and policies, “personal assistants,” who provide in-home care to certain disabled
Medicaid participants pursuant to the Home Services Program, known as the “Rehabilitation
Program,” as well as the Home-Based Support Services Program, the “Disabilities Program.”
Harris, 134 S. Ct. at 2624-26. SEIU was elected as the exclusive collective bargaining
representative for the personal assistants who provided services under the Rehabilitation
Program. Id. at 2626.3 The personal assistants, who are members of the union, were required to
pay union dues and membership fees, and non-members were required to pay their “fair-share.”
Id. Non-union members claimed that the “fair share fees” violated their freedom of speech and
freedom of association under the First and Fourteenth Amendments. Id. The petitioners, as noted
by the Supreme Court, did not “challenge the authority of the SEIU-HII to serve as the exclusive
representative of all the personal assistants in bargaining with the State. All they s[ought] is the
right not to be forced to contribute to the union, with which they broadly disagree.” Id. at 2640.4
3
The Court declined to address petitioners’ claim as it related to the Disability Program, see
Section D, infra.
4
After Harris, the Defendants agreed not to collect any compulsory service fees from Providers
and Defendants have stated their intention to enter into a Memorandum of Understanding that
rescinds the service fee requirements. Am. Compl. ¶ 30. No fee has been collected.
9
In answer to the question presented, the Supreme Court held that the personal assistants
could not be compelled to pay the fair share fees to the union. Id. at 2644. In so holding, the
Supreme Court criticized the decision in Abood, which held that public employees could be
compelled to pay an agency fee to the union if the fee was for collective bargaining purposes, id.
at 2632, and limited Abood’s reach to “full-fledged public employees.” Id. at 2638 (“[W]e
therefore confine Abood’s reach to full-fledged state employees”). Plaintiffs argue because
Harris held it unconstitutional to compel non full-fledged public employees to pay a fair share
fee, then, as non-full-fledged public employees, they likewise cannot be compelled to accept the
union as their exclusive representative. Doc. No. 25 at 3. One does not necessarily, however,
follow the other. There is no conflict in a determination that a non-full-fledged public employee
cannot be compelled to pay a fair share fee, but allowing the union to be the exclusive
representative, where the employee is not compelled to join the union. As the Harris court noted,
“[a] union’s status as exclusive bargaining agent and the right to collect an agency fee from nonmembers are not inextricably linked.” Harris, 134 S. Ct. 2640.5
C. Imposition of Fiduciary Duty or Speaking Role
Plaintiffs argue next that the Act creates a mandatory fiduciary agency relationship
between themselves and SEIU which is unconstitutional. Doc. No. 25 at 9. Specifically,
Plaintiffs point out that the relevant state statutes vest in SEIU, as the exclusive representative,
As further noted by the Supreme Court in Harris, “employees in some federal agencies may
choose a union to serve as the exclusive bargaining agent for the unit, but no employee is
required to join the union or to pay any union fee.” 132 S. Ct. at 2640. The Harris court did not
indicate any constitutional concerns about the exclusive bargaining agents in federal agencies
where, pursuant to 5 U.S.C. § 7102, employees are not required to join or pay any union fee. see
also, City of Madison, Joint Sch. Dist. No. 8 v. Wis. Emp’t Comm’n.,429 U.S. 167, 178 (1976)
(“Wisconsin has adopted, as unquestionably the State constitutionally may adopt, a statutory
policy that authorizes public bodies to accord exclusive recognition to representatives for
collective bargaining chosen by the majority of an appropriate unit of employees.”) (Brennan, J.
concurring).
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“the right to act for and negotiate agreements covering all employees in the unit.” Mass. Gen.
Laws. ch. 150E, § 5. From this provision, Plaintiffs reason that the Commonwealth has made
SEIU the speaker for Plaintiffs, as their agent, resulting in an unconstitutional association within
the meaning of the First Amendment. This same argument, however, was rejected in Bierman v.
Dayton, 2014 U.S. Dist. LEXIS 150504, at *19 (D. Minn. Oct. 21, 2014), an analogous case
wherein home health care workers objected to SEIU being their exclusive representative for
collective bargaining issues. There, the court determined:
Additionally, the fact that, because it has been certified, SEIU owes a fiduciarylike duty to Plaintiffs “fairly and equitably to represent all employees . . ., union
and non-union, within the relevant unit,” Abood, 431 U.S. at 221, in no way
infringes Plaintiffs' rights. Plaintiffs owe no corresponding duty to SEIU.
Plaintiffs cite no authority for the proposition that the imposition of a legal duty
on an entity impermissibly burdens the rights of the beneficiaries of that duty. In
any event, the duty of fair representation imposed on the union actually protects
bargaining unit members' rights not to associate with the union. It bars the union
from discriminating against them when bargaining and administering a collective
bargaining agreement. See, e.g., Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507,
556, 111 S. Ct. 1950, 114 L.Ed. 2d 572 (1991) (Scalia, J., concurring in part and
dissenting in part).
Id.
This Court agrees with the reasoning in Bierman. In addition, this Court considers the
language from 150E § 5, cited by the Plaintiffs, in light of the entire statutory scheme. Bennett v.
City of Holy, 362 F.3d 1, 10 (1st Cir. 2004) (“The task of statutory construction often is
informed by reading the whole of a statute.”). Despite the union’s “exclusive” status, an
“employee may present a grievance to his employer and have such grievance heard without
intervention by the exclusive representative of the employee organization….” Mass. Gen. Laws
ch. 150E, § 5 (“provided that the exclusive representative is afforded the opportunity to be
present at such conferences and that any adjustment made shall not be inconsistent with the
terms of an agreement then in effect between the employer and the exclusive representative”).
11
Moreover, Providers are free to communicate with EEC on their own, with any association they
choose, and, on any issue they choose. That is, non-union Providers can engage in their own
speech to oppose, or decline to speak at all, or agree and disagree with SEIU. Lehnert v. Ferris
Faculty Ass’n., 500 U.S. 507, 521 (1991). Plaintiffs’ “free speech rights are not
unconstitutionally burdened because” they may “oppose[] positions taken by [SEIU] in its
capacity as collective-bargaining representative.” Id. at 517. Read as a whole, therefore, the Act
does not compel Plaintiffs to do, or not do anything (distinguishing additionally, this case from
the compelled fair share fee issue in Harris).
The question then, is whether the statutory scheme challenged by Plaintiffs, associates
them with the exclusive representative’s speech within the meaning of the First Amendment.
Plaintiffs rely primarily on Mulhall v. UNITE HERE Local 355, 618 F. 3d 1279 (11th Cir.
2010). There the court stated “[i]f United is certified as the majority representative
of…employees, Mulhall will have been thrust unwillingly into an agency relationship” and
“regardless of whether Mulhall can avoid contributing financial support to or becoming a
member of the union…its status as his exclusive representative plainly affects his associational
rights.” Id. at 1287 (emphasis added). The language of Mulhall, however, must be read in
context. Mulhall decided the issue of standing in relation to an alleged § 302 violation of the
federal Labor-Management Relations Act. The court held only that plaintiff pled enough “to
allow him to get his ticket stamped for admission to the federal court…” id., but Mulhall did not
hold, and does not stand for the proposition that a union’s status as exclusive representative
violates or unduly burdens Plaintiffs’ associational rights. Notably too, the court in Mulhall
stated that “‘compulsory affiliation with . . . [a] union does not, without more, violate the First
Amendment rights’” of employees. Id. at 1288 (quoting Lehnert, 500 U.S. at 517) (emphasis
12
added). Here, SEIU’s role as exclusive representative, without more, does not violate Plaintiffs’
First Amendment rights.
Plaintiffs may contend that their status as small home businesses caring for children in
their homes, distinguishes, in a First Amendment sense, this case from the more traditional
employer-employee relationship. While there is a difference, the difference, rather than
associating SEIU’s speech with Plaintiffs, in reality further disassociates SEIU’s speech from
Plaintiffs. For example, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Bos.,
515 U.S. 557 (1995), the Supreme Court held the private organizer of the St. Patrick’s Day
parade in South Boston could not be forced to include, a group they preferred to exclude. In so
holding, the Supreme Court reasoned that the group’s “participation would likely be perceived as
having resulted from the [private organizer’s] customary determination about a unit admitted to
the parade, that its message was worthy of presentation and quite possibly of support as well.”
Id. at 575. The Supreme Court also noted that parades, in contrast to cable television providers
are “not understood to be neutrally presented or selectively viewed,” and thereby further
explaining why the parade organizer could exclude a group of marchers while a cable television
provider must serve as a conduit to certain speakers. Id. SEIU's expressive activity as exclusive
representative for the Providers would not “likely be perceived” as associating the Providers with
SEIU’s statements. SEIU derives its role from a majority vote election, not a mandatory
participation process requiring consensus to produce an exclusive representative. Thus, here, as
to those Providers who did not vote, or who are not members of SEIU, “no reasonable person
would believe the ‘[Providers] agreed[d] with any speech by [SEIU].” Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 457 (2008) (Roberts, C.J., concurring) (explain
parenthetically and quoting Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547
13
U.S. 47, 65 (2006)). The Supreme Court, speaking through Chief Justice Roberts, examined
whether listeners would make the objected to association:
I do think, however, that whether voters perceive the candidate and the party to be
associated is relevant to the constitutional inquiry. Our other forced-association
cases indicate as much. In BSA v. Dale, 530 U.S. 640, 653, 120 S. Ct. 2446, 147
L. Ed. 2d 554 (2000), we said that Dale’s presence in the Boy Scouts would
“force the organization to send a message . . . [to] the world” that the Scouts
approved of homosexuality. In other words, accepting Dale would lead outsiders
to believe the Scouts endorsed homosexual conduct. Largely for that reason, we
held that the First Amendment entitled the Scouts to exclude Dale. Id., at 659, 120
S. Ct. 2446, 147 L. Ed. 2d 554. Similarly, in Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 115 S. Ct. 2338, 132
L. Ed. 2d 487 (1995), we allowed the organizers of Boston's St. Patrick's Day
Parade to exclude a pro-gay rights float because the float’s presence in the parade
might create the impression that the organizers agreed with the float-sponsors’
message. See id., at 575-577, 115 S. Ct. 2338, 132 L. Ed. 2d 487.
Id. at 459 (emphasis added).
Here, this Court sees little chance if any, that any “outsider’ would be led to believe that
Plaintiffs have accepted any SEIU message and little chance, if any, that SEIU’s presence as
exclusive representative might create the impression that Plaintiffs agree with their positions.6
In sum, in light of the applicable Supreme Court precedent, and the Act’s provisions
which allow all Providers to petition the government, present separate grievances, as well as the
process established by the Commonwealth (which merely directs a particular state agency to
negotiate with one entity chosen by a majority vote), it cannot be said that Plaintiffs have been
compelled to associate with SEIU within the meaning of the First Amendment. 7
6
No party has suggested to the Court that consideration of the association issue requires further
factual development. That is, although Plaintiffs opposed the Motion to Dismiss, they did not
assert in their opposition that the question of association raised factual questions under the
Complaint that the Court could not resolve on the pleadings alone.
Finally, because this Court concludes that SEIU’s exclusive representation does not infringe on
Plaintiffs' First Amendment rights, the Defendants do not need to “demonstrate any special
7
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CONCLUSION
Plaintiffs have raised a considered First Amendment challenge to a new state statute
plowing relative new ground. The Court appreciates the parties’ thoughtful briefs and the fine
oral argument presented by counsel. For the reasons stated above, the Defendants’ Motions to
Dismiss, Doc. Nos. 21 and 23, are ALLOWED. The Clerk shall enter judgment dismissing this
action in favor of Defendants and close this matter.
SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge
justification to sustain the constitutionality” of the Act. Univ. of Pa. v. EEOC, 493 U.S. 182, 201
(1990).
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