Mentele v. Inslee

• Decision Date: 26 February 2019
• Docket Number: No. 16-35939,16-35939
• Citation: 916 F.3d 783
• Parties: Cynthia MENTELE, Plaintiff, and Katherine Miller, Plaintiff-Appellant, v. Jay INSLEE, in His Official Capacity as Governor of the State of Washington; Kevin W. Quigley, in His Official Capacity as Director of the Washington State Office of Financial Management; David Schumacher, in His Official Capacity as Director of the Washington State Office of Financial Management; Service Employees International Union, Local 925, a Labor Organization, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

916 F.3d 783

Cynthia MENTELE, Plaintiff,

and

Katherine Miller, Plaintiff-Appellant,

v.Jay INSLEE, in His Official Capacity as Governor of the State of Washington; Kevin W. Quigley, in His Official Capacity as Director of the Washington State Office of Financial Management; David Schumacher, in His Official Capacity as Director of the Washington State Office of Financial Management; Service Employees International Union, Local 925, a Labor Organization, Defendants-Appellees.

No. 16-35939

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 3, 2018 Seattle, Washington

Filed February 26, 2019

CHRISTEN, Circuit Judge:

The State of Washington authorized the Service Employees International Union Local 925 (SEIU) to act as the exclusive collective bargaining representative for Washington’s publicly subsidized childcare providers. Katherine Miller, a Washington childcare provider, challenges that arrangement as an infringement of her First Amendment rights of free speech and association. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court’s order granting summary judgment to SEIU and Washington State.

I.

Washington provides financial assistance to qualifying families for childcare costs.

Under the terms of this program, families choose independent childcare providers and pay them on a scale commensurate with the families' income levels. The State covers the remaining cost.

Before 2006, Washington unilaterally determined subsidy levels and other policies governing its childcare assistance programs, through legislation and regulations. But in 2006, Washington re-categorized the providers as "public employees" for purposes of the State’s collective bargaining legislation and authorized the providers to elect an exclusive collective bargaining representative to negotiate with the State on their behalf. Wash. Rev. Code § 41.56.028. Because the childcare providers are state employees only for purposes of collective bargaining, they are considered "partial" state employees, rather than full-fledged state employees, and Washington law limits the scope of their collective bargaining agent’s representation. For example, families continue to be the providers' primary employers, id . § 41.56.028(4)(a) ; the providers are not allowed to strike, id . § 41.56.028(2)(e) ; and the bargaining agent cannot negotiate about certain issues, id . § 41.56.028(2)(c) ("[r]etirement benefits shall not be subject to collective bargaining").

The childcare providers elected SEIU as their exclusive bargaining representative, and SEIU negotiated a number of terms and conditions for them as part of a state-wide collective bargaining agreement. Childcare providers are not required to join SEIU, but SEIU is nonetheless "required to represent[ ] all the public employees within the unit without regard to membership." Id . § 41.56.080. SEIU members pay union dues to support SEIU. Non-union members previously paid "agency fees" to support SEIU’s collective bargaining efforts, but SEIU and the State eliminated the agency fees provision from their collective bargaining agreement after the Supreme Court’s decision in Harris v. Quinn , 573 U.S. 616, 134 S.Ct. 2618, 189 L.Ed.2d 620 (2014) (holding that states may not compel partial state employees to pay agency fees for union representation).¹

Katherine Miller and Cynthia Mentele, two Washington state childcare providers, filed suit in March of 2015 against State officials and SEIU. Miller is a former SEIU member; the record is unclear about whether Mentele was a member. Both plaintiffs alleged that their First Amendment right to expressive association was violated when Washington recognized SEIU as the exclusive bargaining representative for all childcare providers because SEIU necessarily spoke and negotiated on their behalf. Miller and Mentele sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. The complaint did not clearly define the nature of the relief Miller and Mentele sought, but the briefing filed with our court clarified that they sought neither the opportunity to negotiate with the union themselves nor the complete elimination of a collective bargaining representative.

The parties filed cross-motions for summary judgment. The district court granted the motion filed by the State and SEIU, while denying the motion filed by Miller and Mentele. The parties stipulated to the dismissal of Mentele’s additional claim that sought reimbursement of past union dues.

Miller alone appeals the district court’s judgment. We review de novo the district court’s order granting summary judgment.

Stanford Univ. Hosp. v. Fed. Ins. Co. , 174 F.3d 1077, 1082 (9th Cir. 1999).

II.

A.

Our analysis relies largely on two Supreme Court cases that discuss the propriety of exclusive bargaining representation for public employees: the Supreme Court’s decision in Minnesota State Board for Community Colleges v. Knight , 465 U.S. 271, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984) ; and its recent decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31 , ––– U.S. ––––, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018). Two other cases provide important context for our decision: Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), and Harris , 573 U.S. 616, 134 S.Ct. 2618. SEIU and the State argue that Knight controls the outcome of this appeal; Miller argues that we are bound by Janus .

Knight involved a challenge by community college professors to two statutory provisions under Minnesota law: (1) a "meet and negotiate" provision, which required the State to meet and negotiate with the faculty’s exclusive bargaining representative (e.g., the faculty’s union) concerning the terms and conditions of employment; and (2) a "meet and confer" provision, which required the State to meet and confer with the exclusive representative regarding "policy questions relating to employment but outside the scope of mandatory bargaining." Knight , 465 U.S. at 273–75, 279, 104 S.Ct. 1058. The Court summarily affirmed the "meet and negotiate" requirement, id . at 279, 104 S.Ct. 1058, and separately concluded that the exclusion of non-union members from the State’s "meet and confer" provision did not infringe the non-union members' First Amendment rights:

Appellees' speech and associational rights, however, have not been infringed by Minnesota’s restriction of participation in "meet and confer" sessions to the faculty’s exclusive representative. The state has in no way restrained appellees' freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative.

Id . at 288, 104 S.Ct. 1058. The Court explained that the non-union members had not been denied access to a public forum, id. at 280–83, 104 S.Ct. 1058, that state employees had no right to be heard by, or negotiate individually with, a public body, id . at 283–85, 104 S.Ct. 1058, and that the non-union members were free to form advocacy groups or otherwise make their views known to the State and associate with whomever they wished to associate, id. at 288–90, 104 S.Ct. 1058. The Court concluded that the non-union members' rights to free speech and association were not abridged by the meet and confer provision.

Significant for the present appeal, Knight was decided a few years after the Court’s decision in Abood v. Detroit Board of Education . In Abood , the Court concluded that, although compulsory agency fees impinge employees' First Amendment rights to some extent, the mandatory fees were nevertheless justified by the State’s compelling interest in "labor peace"; i.e., the logistical and managerial benefits that accrue when an employer negotiates only with one exclusive representative. 431 U.S. at 232–37, 97 S.Ct. 1782. Though it followed Abood by a few years, Knight never mentioned labor peace and instead upheld Minnesota’s meet and confer provision by concluding that it did not infringe the non-union members' First Amendment associational rights at all. In this way, Knight expressly cabined Abood , explaining that the First Amendment infringement in Abood was the result of the "compulsory collection of dues " from non-union members, and observing that Abood did not address whether exclusive representation infringed the non-union members' associational rights. See Knight , 465 U.S. at 291 n.13, 104 S.Ct. 1058 (emphasis added).

Following Knight , every circuit court to address the constitutionality of exclusive bargaining arrangements (as distinct from the constitutionality of compelling financial support for such bargaining arrangements) has concluded that these provisions do not violate the First Amendment. D'Agostino v. Baker , 812 F.3d 240, 242–44 (1st Cir. 2016) (Souter, J., by designation); Hill v. Serv. Emps. Int'l Union , 850 F.3d 861, 864–65 (7th Cir.), cert. denied , ––– U.S. ––––, 138 S.Ct. 446, 199 L.Ed.2d 329 (2017) ; Bierman v. Dayton , 900 F.3d 570, 574 (8th Cir. 2018), petition for cert. filed , ––– U.S.L.W. –––– (U.S. Dec. 13, 2018) (No. 18-766) ; Jarvis v. Cuomo , 660 F. App'x 72, 74–75 (2d Cir. 2016) (order) (unpublished).

In 2014, thirty years after it decided Knight , the Court addressed the constitutionality of compelling agency fees from non-union members who are partial state employees like the childcare providers here. Harris , 573 U.S. 616, 134 S.Ct. 2618. Harris acknowledged Abood ’s"labor peace" justification for compelling agency fees to support exclusive bargaining representation, but it did not extend Abood ’s rationale to union representation of partial state employees. Id . at 2640. In fact, contrary to Abood ’s rationale, in Harris the Court decided that compelled fees are not necessary to ensure labor peace because public sector unions can effectively operate with the support of the dues paid by union members alone. Id . at 2640–41. In any event, Harris...