          United States Court of Appeals
                        For the First Circuit


No. 15-1433

KATHLEEN D'AGOSTINO; DENISE BOIAN; JEAN M. DEMERS; LAURIE SMITH;
 KELLY WINSHIP; DENISE FARLEY; STEPHANIE KOZLOWSKI-HECK; LESLIE
                 MARCYONIAK; ELIZABETH MONGEON,

                       Plaintiffs, Appellants,

                                  v.

    CHARLIE BAKER, in his official capacity as Governor of the
 Commonwealth of Massachusetts; THOMAS L. WEBER, in his official
  capacity as Director of the Department of Early Education and
      Care; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Leo T. Sorokin, U.S. District Judge]


                                Before

                        Lynch, Circuit Judge,
                     Souter, Associate Justice,*
                      and Selya, Circuit Judge.


     William L. Messenger, with whom the National Right to Work
Legal Defense Foundation, Geoffrey R. Bok, and Stoneman, Chandler
& Miller were on brief, for appellants.
     Timothy J. Casey, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief, for
appellees Charlie Baker and Thomas L. Weber.

     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     Scott A. Kronland, with whom Peder J.V. Thoreen, Altshuler
Berzon LLP, Katherine D. Shea, and Pyle Rome Ehrenberg PC were on
brief, for appellee Service Employees International Union, Local
509.
     Sarah A. Smegal, with whom Hackett Feinberg P.C. was on brief,
for the National Federation of Independent Business Small Business
Legal Center, amicus curiae in support of plaintiffs-appellants.


                         February 5, 2016
           SOUTER, Associate Justice.     As relevant here, Mass. Gen.

Laws ch. 15D, § 17(b) provides that family child care providers

"shall be considered public employees . . . solely for the purposes

of . . . chapter 150E," the statute authorizing employees in public

service to organize for collective bargaining.      The appellants are

such providers (and one assistant to a provider), operating on a

daily basis in their own houses and serving "low-income and other

at-risk children," id. § 17(a), with custodial care and educational

help. They are hired by those legally responsible for the children

at rates set by the Commonwealth, which underwrites the resulting

charges.

           A majority of the class of providers in question chose

the appellee Service Employees International Union, Local 509, as

their   exclusive   agent   for   bargaining   collectively   with   the

responsible state agency, the Department of Early Education and

Care.   The subjects of their attention are customary in collective

bargaining, and include recruitment and training of providers.

Id. § 17(g).    The state Legislature nonetheless retains ultimate

discretion over appropriations necessary to fund the government's

subvention.    Id. ch. 150E, § 7(b).

           No provider is required by statute or by the current

agreement between the Department and the Union to become a union

member or to contribute any money to the Union for any purpose.

While a provider may not bargain separately or furnish services


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under terms different from those set by the collective bargaining

agreement, a provider is free to address the Department, the

Legislature and the public with any expression of disagreement

with a union position, or on the broader policy or philosophy

governing family child care services, or on any other subject.

And a provider may raise a grievance directly with the Department,

although the Union has a right to be represented at any ensuing

meeting, and the Department may take no responsive action at odds

with an existing agreement.

             The appellants declined to join the Union and brought

this   action   in    the    district     court   under    42   U.S.C.   §    1983

challenging the statutory scheme that authorizes the selection of

an exclusive bargaining agent to agree on terms that affect their

relationships with their clients and the government.              Their facial

challenge to the statutory regime claims violation of their rights

of freedom of association and other expressive rights guaranteed

by the First Amendment.            The district court dismissed their

complaint under Federal Rule of Civil Procedure 12(b)(6), and we

affirm.

             Our disposition of the constitutional claims turns on

precedent,    and    the    appellants'    principal      arguments   probe   the

vitality of that precedent in light of recent developments.                   The

convenient starting point for purposes of this case is Abood v.

Detroit Board of Education, 431 U.S. 209 (1977), dealing with the


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rights of teachers employed in public education to be free from

enforced   association     with     a    union.         The   Court    affirmed        the

centrality    of   exclusive     and    fair     representation        to     effective

collective bargaining, id. at 220-21, and followed law previously

applied in private sector litigation: it permitted an agency shop

agreement requiring non-union members of a bargaining unit to

contribute a fee in lieu of dues to support the bargaining activity

of an exclusive union-bargaining representative selected by a

majority   of    bargaining      unit    employees,       id.    at   225-26.          The

permissible      contribution     was     held     to    be     justified       by     the

overarching object of promoting labor peace, and by the equity of

preventing      free   riders,    an    analysis    taken       to    suffice     as    to

dissenting      public   employees       as     well     as     to    their     private

counterparts.      Id. at 224.     Specifically, the Court held that the

inherently    political    character       of    labor    agreements        and      their

implementation in governmental employment was of no constitutional

consequence that could distinguish the claims of public and private

employees.       Id. at 232.       For that matter, the public-private

distinction was likewise irrelevant under the general rule holding

it unconstitutional to charge non-union employees a fee to support

an exclusive bargaining representative's political activity in the

conventional sense.       See id. at 235-37.

             Abood's understanding that non-union public employees

have no cognizable associational rights objection to a union


                                        - 5 -
exclusive      bargaining        agent's    agency     shop      agreement       points

emphatically to the same result here, where no financial support

for any purpose is required from non-union employees.                        And that

result is all the clearer under Minnesota State Board for Community

Colleges v. Knight, 465 U.S. 271 (1984), which ruled against First

Amendment      claims    brought    by     public    college     faculty     members,

professional employees of a state education system, who challenged

a legislative mandate that a union selected as their exclusive

bargaining agent be also the exclusive agent to meet with officials

on    educational       policy    beyond    the     scope   of    mandatory      labor

bargaining.      The Court held that neither a right to speak nor a

right to associate was infringed, id. at 289; like the appellants

here, the academic employees in Knight could speak out publicly on

any subject and were free to associate themselves together outside

the union however they might desire.              Their academic role was held

to give them no variance from the general rules that there is no

right to compel state officials to listen to them, id. at 286, and

no right to eliminate the amplification that an exclusive agent

necessarily enjoys in speaking for the unionized majority, id. at

288.   Since non-union professionals, college teachers, could claim

no violation of associational rights by an exclusive bargaining

agent speaking for their entire bargaining unit when dealing with

the    state     even     outside     collective       bargaining,         the    same

understanding of the First Amendment should govern the position


                                         - 6 -
taken by the family care providers here, whose objection goes only

to bargaining representation.

               The appellants, however, cite Harris v. Quinn, 134 S.

Ct.     2618    (2014),      to   argue    that     Knight       has   been    rendered

inapplicable to them owing to the fact that they are not state

employees       as     customarily        understood,        even      though       their

remuneration comes from the Commonwealth.                       We do not, however,

read Harris as limiting Knight in a way that affects this case.

               The First Amendment claimants in Harris were home care

personal assistants hired by individuals but paid by the state,

who objected to a compulsory agency fee requirement.                          The Court

accepted the distinction they raised, between the conventional

public     employees        considered     in     Abood    and     "partial"     public

employees who looked to the state to pay their charges for directly

serving private individuals.              Id. at 2368.          Given the "partial"

employees' comparatively attenuated relationships both to the

state    and    to    one   another,      the   Court     held    that    imposing    an

obligation to pay agency fees was insufficiently supported by the

justifications of labor peace and no free riders that had been

held to warrant mandatory fees in Abood.                  Id.

               But the Harris distinction does not decide this case.

While     we    can    agree      with    the     appellants      in     assuming    the

comparability of Harris's personal assistants and the child care

providers here, the issues at stake in the two cases are different.


                                          - 7 -
Unlike the Harris litigants, the appellants are not challenging a

mandatory fee; indeed, an agency fee previously enforced against

the providers here was eliminated after Harris came down.          What

Harris did not speak to, however, was the premise assumed and

extended in Knight: that exclusive bargaining representation by a

democratically selected union does not, without more, violate the

right of free association on the part of dissenting non-union

members of the bargaining unit.      Harris did not hold or say that

this rule was inapplicable to "partial" employees covered by a

collective bargaining agreement.     Harris, in fact, did not so much

as mention Knight, and precedent supports applying its rule here.

          The subsidiary arguments for reversal do no better.       The

appellants, for example, invoke the statutory bar to a union's

discrimination against non-joiners when bargaining to reach a

collective agreement.    See Mass. Gen. Laws ch. 150E, § 5.        This

limitation, they say, creates a fiduciary obligation implying a

closer and constitutionally more significant association than that

resulting solely from a union's being an exclusive agent.      But the

state   statute   does   no   more   than   require   the   same   fair

representation that governs union bargaining under the National

Labor Relations Act, see Abood, 431 U.S. at 221 & n.15, and the

argument thus runs counter to settled federal law devoid of any

hint that a duty of fairness results in impermissibly compelled

association when a union is an exclusive bargaining agent for non-


                                - 8 -
union employees.      In fact, it is not the presence but the absence

of a prohibition on discrimination that could well ground a

constitutional objection.         See Steele v. Louisville & N.R. Co.,

323 U.S. 192 (1944).

              Nor does the fiduciary characterization support any

claim of compelled speech on the theory that a "fiduciary" union's

position is the more plausibly imputable to a non-union dissenter.

No   matter    what   adjective    is   used    to    characterize   it,   the

relationship is one that is clearly imposed by law, not by any

choice on a dissenter's part, and when an exclusive bargaining

agent is selected by majority choice, it is readily understood

that employees in the minority, union or not, will probably

disagree with some positions taken by the agent answerable to the

majority.      And the freedom of the dissenting appellants to speak

out publicly on any union position further counters the claim that

there is an unacceptable risk the union speech will be attributed

to them contrary to their own views; they may choose to be heard

distinctly as dissenters if they so wish, and as we have already

mentioned the higher volume of the union's speech has been held to

have no constitutional significance.           Knight, 465 U.S. at 288.

              A trio of appellants' cited authorities may be given

even briefer treatment as not on point.              Unlike the auto drivers

in Wooley v. Maynard, 430 U.S. 705 (1977), the appellants are not

compelled to act as public bearers of an ideological message they


                                    - 9 -
disagree with.     Nor, of course, are they under any compulsion to

accept an undesired member of any association they may belong to,

as in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), or to

modify the expressive message of any public conduct they may choose

to engage in, the issue addressed in Hurley v. Irish-Am. Gay,

Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995).

             Finally, appellants get no support from Mulhall v. UNITE

HERE Local 355, 618 F.3d 1279 (11th Cir. 2010), a case on standing

that recognized only a First Amendment associational interest,

which it distinguished from a right.       Quite apart from its limited

scope, Mulhall is an odd case for appellants to cite in their

favor, since it notes the distinction between constitutional,

compulsory     "affiliation"   with   a   union   and   compulsory   union

membership, which is not at issue here.       Id. at 1288.

             The judgment of the district court is AFFIRMED.




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