Teresa Bierman v. Mark Dayton , 900 F.3d 570 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1244
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Teresa Bierman; Kathy Borgerding; Linda Brickley; Carmen Gretton; Beverly
Ofstie; Scott Price; Tammy Tankersley; Kim Woehl; Karen Yust,
lllllllllllllllllllllPlaintiffs - Appellants,
v.
Governor Mark Dayton, in His Official Capacity as Governor of the State of
Minnesota; Josh Tilsen, in His Official Capacity as Commissioner of the Bureau
of Mediation Services; Emily Johnson Piper, in Her Official Capacity as
Commissioner of the Minnesota Department of Human Services1; SEIU
Healthcare Minnesota,
lllllllllllllllllllllDefendants - Appellees.
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: February 14, 2018
Filed: August 14, 2018
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1
Appellee Piper is automatically substituted for her predecessor under Federal
Rule of Appellate Procedure 43(c)(2).
Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
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COLLOTON, Circuit Judge.
In 2013, Minnesota enacted a statute that extended the state’s Public
Employment Labor Relations Act (“PELRA”) to persons who provide in-home care
to disabled Medicaid recipients. See Individual Providers of Direct Support Services
Representation Act, ch. 128, art. 2, 2013 Minn. Laws 2173 (codified as amended at
Minn. Stat. §§ 179A.54, 256B.0711). PELRA authorizes covered employees to
organize and to designate by majority vote an exclusive representative to negotiate
employment terms with the state. Minn. Stat. § 179A.06, subdiv. 2.
A group of parents who provide homecare services to their disabled children
sued several state officials and a union, alleging that the 2013 Act violates the
homecare providers’ freedom of association under the First and Fourteenth
Amendments. They complain that the Act unconstitutionally compels them to
associate with the exclusive negotiating representative. The district court,2 relying
on Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984),
determined that the 2013 Act does not infringe on the providers’ First Amendment
rights. We agree with the application of Knight, and therefore affirm the judgment
for the defendants.
*
This opinion is filed by Chief Judge Smith and Judge Colloton under Eighth
Circuit Rule 47E.
2
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
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I.
PELRA allows public employees to organize by selecting an exclusive
representative to “meet and confer” and “meet and negotiate” with the State regarding
terms and conditions of employment. Minn. Stat. §§ 179A.06, 179A.07. If public
employees select a representative, then the state employer must confer and negotiate
exclusively with the representative union. Id. § 179A.07, subdivs. 2-3. Employees,
however, need not join the union, id. § 179A.06, subdiv. 2, and they remain free to
communicate with the State independent of the exclusive representative, so long as
their activity “is not designed to and does not interfere with the full faithful and
proper performance of the duties of employment or circumvent the rights of the
exclusive representative.” Id. § 179A.06, subdiv. 1.
In 2013, Minnesota extended PELRA to apply to those who provide in-home
care to Medicaid recipients. Ch. 128, art. 2, 2013 Minn. Laws at 2173-78. Under the
2013 Act, Minnesota considers homecare providers to be public employees solely for
purposes of PELRA. Minn. Stat. § 179A.54, subdiv. 2. The Act specifies, however,
that no agreement reached between the State and the exclusive representative may
interfere with certain rights of the Medicaid recipients—namely, “to select, hire,
direct, supervise, and terminate the employment of their individual providers; to
manage an individual service budget regarding the amounts and types of authorized
goods or services received; or to receive direct support services from individual
providers not referred to them through a state registry.” Id. § 179A.54, subdiv. 4.
In June 2014, SEIU Healthcare Minnesota presented the Minnesota Bureau of
Mediation Services with over 9,000 signed union authorization cards from Minnesota
homecare providers requesting that SEIU serve as their exclusive representative.
These homecare providers then collectively submitted an official election petition.
SEIU agreed that it would not seek mandatory fees from providers who did not join
the union.
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After receiving notice of the upcoming election, the plaintiff homecare
providers sued the Governor, the Commissioner of the Bureau of Mediation Services,
and the Commissioner of the Minnesota Department of Human Services, in their
official capacities, and SEIU. They sought to enjoin Minnesota from conducting the
election and certifying SEIU as their exclusive representative. The providers alleged
that if Minnesota conducted the election and recognized SEIU as the exclusive
representative, the State would violate their right not to associate under the First
Amendment. The district court refused to enjoin the election, and the vote selected
SEIU as the exclusive representative. The court then granted judgment on the
pleadings for the defendants on the providers’ First Amendment claim.
II.
The state defendants contend that there is no case or controversy before us,
because the providers lack standing to sue. They argue that the homecare providers
have not alleged a concrete injury in fact that satisfies the minimum requirements of
Article III. The district court thought the State’s argument impermissibly conflated
standing analysis with the merits of the claim and concluded that the providers had
standing. The court apparently reasoned that the fact that SEIU was certified as the
exclusive representative for the homecare providers was a sufficient injury in fact.
Article III standing requires the homecare providers to establish that they have
“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish injury in fact, the
homecare providers must show that they have suffered a concrete and particularized
injury to a cognizable interest. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 563
(1992).
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One injury that the providers have alleged is an impingement on the freedom
of the providers not to associate with the exclusive representative. The State argues
that there is no impingement, and thus no injury, so the providers lack standing. We
do not think, however, that the alleged restraint on associational freedom is the only
injury alleged. The complaint, fairly construed at the pleading stage, also asserts the
providers are harmed by the practical effect of the State’s decision to recognize an
exclusive representative. As the Court recognized in Knight, the “unique status” of
an exclusive representative “amplifies its voice” in the negotiating process. 465 U.S.
at 288. By definition, the voices of those who disagree with the exclusive
representative are correspondingly diminished. Whether or not this effect on the
voices of the homecare providers violates a constitutional right, we conclude that it
is sufficient to constitute an injury in fact for purposes of Article III.
On the merits, the homecare providers contend that PELRA creates a
“mandatory agency relationship” between them and the exclusive representative that
violates their right to free association under the First and Fourteenth Amendments.
This argument, however, is foreclosed by Knight. There, community college faculty
instructors objected to Minnesota’s recognition of an exclusive representative for
negotiations on subjects outside the scope of mandatory bargaining under a prior
version of the PELRA. Id. at 274, 278. The Court concluded that the State “in no
way restrained” the instructors’ “freedom to associate or not to associate with whom
they please, including the exclusive representative.” Id. at 288 (emphases added).
In concluding that the instructors’ associational freedom was not impaired, the Court
emphasized that they were “free to form whatever advocacy groups they like,” and
were “not required to become members of [the union].” Id. at 289.
There is no meaningful distinction between this case and Knight. The current
version of PELRA similarly allows the homecare providers to form their own
advocacy groups independent of the exclusive representative, see Minn. Stat.
§ 179A.06, subdiv. 1, and it does not require any provider to join the union. Id.
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§ 179A.06, subdiv. 2. According to Knight, therefore, the State has “in no way”
impinged on the providers’ right not to associate by recognizing an exclusive
negotiating representative. The homecare providers urge that Knight addressed only
whether it was constitutional for a public employer to exclude employees from union
meetings, but a fair reading of Knight is not so narrow. The Court summarily
affirmed the constitutionality of exclusive representation for subjects of mandatory
bargaining. 465 U.S. at 279. And the Court discussed more broadly the fact that the
State treated the position of the exclusive representative as the official position of the
faculty, even though not every instructor agreed, id. at 276, but nonetheless ruled that
the exclusive representation did not impinge on the right of association. Id. at 288-
90; see Hill v. Serv. Emps. Int’l Union, 850 F.3d 861, 864 (7th Cir. 2017); Jarvis v.
Cuomo, 660 F. App’x 72, 74 (2d Cir. 2016) (per curiam); D’Agostino v. Baker, 812
F.3d 240, 242-43 (1st Cir. 2016).
Recent holdings in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), and
Harris v. Quinn, 134 S. Ct. 2618 (2014), do not supersede Knight. Under those
decisions, a State cannot compel public employees and homecare providers,
respectively, to pay fees to a union of which they are not members, but the providers
here do not challenge a mandatory fee. Janus did characterize a State’s requirement
that a union serve as an exclusive bargaining agent for its employees as “a significant
impingement on associational freedoms that would not be tolerated in other contexts,”
138 S. Ct. at 2478, but the decision never mentioned Knight, and the constitutionality
of exclusive representation standing alone was not at issue. Of course, where a
precedent like Knight has direct application in a case, we should follow it, even if a
later decision arguably undermines some of its reasoning. Agostini v. Felton, 521
U.S. 203, 237 (1997).
* * *
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The judgment of the district court is affirmed.
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