Daily Labor Report®

Union Representation Doesn’t Shield Nonmembers: 2nd Cir. (1)

Nov. 18, 2019, 5:47 PMUpdated: Nov. 18, 2019, 10:29 PM

Public sector workers who are represented by a union but aren’t full members don’t get First Amendment protections from adverse employment decisions based on their association with a union, the Second Circuit said Nov. 18.

That means a trial court will review the New York State Thruway Authority’s decision to lay off nonmember workers under a less exacting standard than it will the terminations of union members, the appeals court said.

The Thruway Authority eliminated 231 full-time positions when talks broke down at a time of budgetary pressure, as the authority sought to replace the Tappan Zee Bridge, according to the ruling. All the terminated employees were in the four bargaining units represented by three unions. Only 13 of those workers were represented by the union but weren’t dues-paying members.

Unions sued on behalf of both groups of workers. The trial court denied the Thruway Authority’s request for summary judgment and said heightened scrutiny would apply to the termination decisions of both worker groups at trial.

After the authority asked for reconsideration, the district court asked the U.S. Court of Appeals for the Second Circuit to decide what scrutiny level should apply. Union activity is protected by the First Amendment and “heightened scrutiny” applies to employment decisions targeting workers based on their union membership, the Second Circuit said in its 2013 ruling in State Emps. Bargaining Agent Coal. v. Rowland.

That highest level of judicial scrutiny requires the government to show that its action was narrowly tailored and the least restrictive means to achieve a compelling interest.

In its Nov. 18 decision, a three-judge Second Circuit panel said the First Amendment protection recognized in Rowland shouldn’t be extended to nonmembers merely because they’re represented by a union.

Nonmembers are associated with the union not based on their own choice, but as a function of New York public labor law and the collective bargaining agreements that cover the workers, Judge Raymond J. Lohier wrote for the panel.

The Civil Service Employees Association, which represents some of the terminated workers, is pleased with the ruling, said Aaron Kaplan, an attorney with the union. The Second Circuit rejected Thruway Authority’s argument that none of the workers should get the benefit of heightened scrutiny because the nonmembers were part of the plaintiff group, Kaplan said.

The Thruway Authority declined to comment on the case Nov. 18.

The case will return to the district court to consider whether the nonmember terminations were justified under a less stringent standard known as “rational basis” review, which requires the government to show that its action was rationally related to some legitimate interest. In addition, the district court will also weigh certifying a class of just union members.

The case is Donohue v. Milan, 2d Cir., No. 17-2832, 11/18/19.

(Updated with additional case details, comments.)

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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