     17‐2832‐cv, 17‐2833‐cv, 17‐2834‐cv
     Donohue v. Milan; Donohue v. Milan; N.Y.S. Thruway Emps. v. N.Y.S. Thruway Auth.

 1                         UNITED STATES COURT OF APPEALS
 2                             FOR THE SECOND CIRCUIT
 3
 4                                      August Term, 2018
 5
 6           (Argued: March 13, 2019                    Decided: November 18, 2019)
 7
 8                      Docket Nos. 17‐2832‐cv, 17‐2833‐cv, 17‐2834‐cv
 9
10                         _____________________________________
11
12    DANNY DONOHUE, AS PRESIDENT OF THE CIVIL SERVICE EMPLOYEES
13     ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL‐CIO, CIVIL SERVICE
14      EMPLOYEES ASSOCIATION, LOCAL 1000, AFSCME, AFL‐CIO, JOHN
15    DELLIO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
16    SITUATED, MICHAEL BOULERIS, INDIVIDUALLY AND ON BEHALF OF
17   ALL OTHERS SIMILARLY SITUATED, MAUREEN ALONZO, INDIVIDUALLY
18      AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, MARCOS
19     DIAMANTATOS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
20                         SIMILARLY SITUATED,
21
22                                      Plaintiffs‐Appellees,
23
24                                                v.
25
26       CARLOS MILAN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF
27     EMPLOYEE RELATIONS AND EMPLOYEE SAFETY, NEW YORK STATE
28   THRUWAY AUTHORITY AND NEW YORK STATE CANAL CORPORATION,
29   HOWARD P. MILSTEIN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
30   AS CHAIRMAN OF NEW YORK STATE THRUWAY/CANAL CORPORATION
31      BOARD OF DIRECTORS, DONNA J. LUH, INDIVIDUALLY, E. VIRGIL
32     CONWAY, IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF NEW
33   YORK STATE THRUWAY/CANAL CORPORATION BOARD OF DIRECTORS,
34        RICHARD N. SIMBERG, INDIVIDUALLY, BRANDON R. SALL,
35    INDIVIDUALLY, J. DONALD RICE, JR., INDIVIDUALLY, JOSE HOLGUIN‐
36     VERAS, INDIVIDUALLY, NEW YORK STATE THRUWAY AUTHORITY,
 1
 2                          Defendants‐Appellants,
 3
 4      THOMAS J. MADISON, JR., INDIVIDUALLY AND IN HIS OFFICIAL
 5      CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE
 6       THRUWAY AUTHORITY AND THE NEW YORK STATE CANAL
 7                           CORPORATION,
 8
 9                                Defendants.
10
11                  _____________________________________
12
13    DANNY DONOHUE, AS PRESIDENT OF THE CIVIL SERVICE EMPLOYEES
14      ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL‐CIO, CIVIL SERVICE
15       EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL‐CIO,
16    WILLIAM COLEMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
17      SIMILARLY SITUATED, WILLIAM MILLER, INDIVIDUALLY AND ON
18       BEHALF OF ALL OTHERS SIMILARLY SITUATED, JOHN METZGIER,
19   INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
20     JACK WIEDEMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
21                          SIMILARLY SITUATED,
22
23                            Plaintiffs‐Appellees,
24
25       JOHN DELLIO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
26     SIMILARLY SITUATED, MICHAEL BOULERIS, INDIVIDUALLY AND ON
27     BEHALF OF ALL OTHERS SIMILARLY SITUATED, MAUREEN ALONZO,
28   INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
29      MARCOS DIAMANTATOS, INDIVIDUALLY AND ON BEHALF OF ALL
30         OTHERS SIMILARLY SITUATED, NEW YORK STATE THRUWAY
31   EMPLOYEES LOCAL 72, JOSEPH E. COLOMBO, GEORGE E. SAVOIE, DAVID
32        M. MAZZEO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
33                         SIMILARLY SITUATED,
34
35                                 Plaintiffs,
36


                                       2
 1                                   v.
 2
 3     CARLOS MILAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
 4     DIRECTOR OF EMPLOYEE RELATIONS AND EMPLOYEE SAFETY, NEW
 5     YORK STATE THRUWAY AUTHORITY AND NEW YORK STATE CANAL
 6       CORPORATION, BRIAN U. STRATTON, INDIVIDUALLY AND IN HIS
 7     OFFICIAL CAPACITY AS DIRECTOR OF THE NEW YORK STATE CANAL
 8      CORPORATION, HOWARD P. MILSTEIN, INDIVIDUALLY AND IN HIS
 9     OFFICIAL CAPACITY AS CHAIRMAN OF NEW YORK STATE THRUWAY
10     AUTHORITY/CANAL CORPORATION BOARD OF DIRECTORS, E. VIRGIL
11    CONWAY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BOARD
12    MEMBER OF THE NEW YORK STATE THRUWAY/CANAL CORPORATION
13   BOARD OF DIRECTORS, NEW YORK STATE THRUWAY AUTHORITY, NEW
14     YORK STATE CANAL CORPORATION, DONNA J. LUH, INDIVIDUALLY
15      AND IN HER OFFICIAL CAPACITY AS VICE‐CHAIRMAN NEW YORK
16    STATE THRUWAY/CANAL CORPORATION BOARD OF DIRECTORS AND
17    IN HER OFFICIAL CAPACITY AS VICE‐CHAIR OF THE NEW YORK STATE
18    THRUWAY AUTHORITY BOARD OF DIRECTORS, RICHARD N. SIMBERG,
19   INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
20     THE NEW YORK STATE THRUWAY/CANAL CORPORATION BOARD OF
21     DIRECTORS AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
22      THE NEW YORK STATE THRUWAY AUTHORITY, BRANDON R. SALL,
23   INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
24       NEW YORK STATE THRUWAY/CANAL CORPORATION BOARD OF
25     DIRECTORS AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
26     THE NEW YORK STATE THRUWAY AUTHORITY, J. DONALD RICE, JR.,
27   INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
28     THE NEW YORK STATE THRUWAY/CANAL CORPORATION BOARD OF
29        DIRECTORS, JOSE HOLGUIN‐VERAS, INDIVIDUALLY AND IN HIS
30        OFFICIAL CAPACITY AS BOARD MEMBER OF NEW YORK STATE
31    THRUWAY/CANAL CORPORATION BOARD OF DIRECTORS AND IN HIS
32      OFFICIAL CAPACITY AS BOARD MEMBER OF THE NEW YORK STATE
33                         THRUWAY AUTHORITY,
34
35                         Defendants‐Appellants,
36


                                     3
 1      THOMAS J. MADISON, JR., INDIVIDUALLY AND IN HIS OFFICIAL
 2      CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE
 3       THRUWAY AUTHORITY AND THE NEW YORK STATE CANAL
 4                           CORPORATION,
 5
 6                                Defendant.
 7
 8                  _____________________________________
 9
10      NEW YORK STATE THRUWAY EMPLOYEES LOCAL 72, JOSEPH E.
11   COLOMBO, GEORGE SAVOIE, DAVID M. MAZZEO, INDIVIDUALLY AND
12          ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
13
14                            Plaintiffs‐Appellees,
15
16                                     v.
17
18       NEW YORK STATE THRUWAY AUTHORITY, HOWARD P. MILSTEIN,
19   INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE
20       NEW YORK STATE THRUWAY AUTHORITY, THOMAS RYAN, IN HIS
21   OFFICIAL CAPACITY, E. VIRGIL CONWAY, IN HIS OFFICIAL CAPACITY AS
22      BOARD MEMBER OF THE NEW YORK STATE THRUWAY AUTHORITY,
23    BRANDON R. SALL, IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF
24     THE NEW YORK STATE THRUWAY AUTHORITY, JOHN F. BARR, IN HIS
25     OFFICIAL CAPACITY AS DIRECTOR OF ADMINISTRATIVE SERVICES OF
26    THE NEW YORK STATE THRUWAY AUTHORITY, DONNA J. LUH, IN HER
27        OFFICIAL CAPACITY AS VICE‐CHAIR OF THE NEW YORK STATE
28    THRUWAY AUTHORITY BOARD OF DIRECTORS, RICHARD N. SIMBERG,
29      IN HIS OFFICIAL CAPACITY AS BOARD MEMBER OF THE NEW YORK
30     STATE THRUWAY AUTHORITY, J. DONALD RICE, JR., IN HIS OFFICIAL
31     CAPACITY AS BOARD MEMBER OF THE NEW YORK STATE THRUWAY
32      AUTHORITY, JOSE HOLGUIN‐VERAS, IN HIS OFFICIAL CAPACITY AS
33      BOARD MEMBER OF THE NEW YORK STATE THRUWAY AUTHORITY,
34
35                          Defendants‐Appellants,
36


                                       4
 1       THOMAS J. MADISON, JR., INDIVIDUALLY AND IN HIS OFFICIAL
 2       CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE
 3   THRUWAY AUTHORITY, JOHN M. BRYAN, IN HIS OFFICIAL CAPACITY AS
 4   CHIEF FINANCIAL OFFICER AND TREASURER OF THE NEW YORK STATE
 5     THRUWAY AUTHORITY, JOSEPH BRESS, INDIVIDUALLY AND IN HIS
 6    OFFICIAL CAPACITY AS CHIEF NEGOTIATOR OF THE NEW YORK STATE
 7   THRUWAY AUTHORITY, HOWARD GLASER, INDIVIDUALLY AND IN HIS
 8   OFFICIAL CAPACITY AS DIRECTOR OF STATE OPERATIONS AND SENIOR
 9   POLICY ADVISOR TO THE GOVERNOR OF NEW YORK, DONALD R. BELL,
10      INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF
11   MAINTENANCE AND OPERATIONS OF THE NEW YORK STATE THRUWAY
12                              AUTHORITY,
13
14                                      Defendants.
15
16                      _____________________________________
17
18   Before:
19
20               WESLEY, LOHIER, and SULLIVAN, Circuit Judges.
21
22         In this appeal, we consider whether State Employees Bargaining Agent
23   Coalition v. Rowland, which held that union activity is protected by the First
24   Amendment right to freedom of association and that heightened scrutiny applies
25   to employment decisions that target an employee “based on union membership,”
26   718 F.3d 126, 134 (2d Cir. 2013), extends to agency fee payors (AFPs), who are not
27   union members, based solely on the fact that AFPs are represented by a union
28   during collective bargaining. We hold that First Amendment protections apply
29   to union members but do not extend to AFPs based on union representation
30   alone. We therefore VACATE and REMAND the District Court’s order as it
31   applies to AFPs but AFFIRM the District Court’s order as it applies to union
32   members.
33
34                                        BETH A. BOURASSA (Christopher W. Meyer,
35                                        Norma G. Meacham, Monica R. Skanes, on



                                             5
 1                                         the brief), Whiteman Osterman & Hanna
 2                                         LLP, Albany, NY, for Defendants‐Appellants.
 3
 4                                         AARON E. KAPLAN (Daren J. Rylewicz,
 5                                         Jennifer C. Zegarelli, on the brief), Civil
 6                                         Service Employees Association, Inc.,
 7                                         Albany, NY, for Plaintiffs‐Appellees in
 8                                         Donohue et al. v. Milan et al., 17‐2832‐cv,
 9                                         Donohue et al. v. Milan et al., 17‐2833‐cv.
10
11                                         GREGG D. ADLER (Nicole M. Rothgeb, on the
12                                         brief), Livingston, Adler, Pulda, Meiklejohn
13                                         & Kelly, P.C., Hartford, CT, for Plaintiffs‐
14                                         Appellees in N.Y. State Thruway Emps. Local
15                                         72 et al. v. N.Y. State Thruway Authority et
16                                         al., 17‐2834‐cv.

17   LOHIER, Circuit Judge:

18         In State Employees Bargaining Agent Coalition v. Rowland, we held that

19   union activity is protected by the First Amendment right to freedom of

20   association and that heightened scrutiny therefore applies to employment

21   decisions that target an employee “based on union membership.” 718 F.3d 126,

22   134 (2d Cir. 2013). Many of the plaintiffs in this case are union members and

23   thus clearly enjoy First Amendment protections based on their voluntary

24   association with a union. But a small subset of the plaintiffs are non‐union

25   members called agency fee payors (AFPs). The main question here is whether, in




                                             6
 1   light of Rowland, the AFPs’ First Amendment rights are protected solely because

 2   the AFPs are represented by a union during collective bargaining.

 3         In an order granting summary judgment in favor of the Plaintiffs, the

 4   United States District Court for the Northern District of New York (Scullin, J.)

 5   interpreted our decision in Rowland to mean that strict scrutiny applies to a

 6   public employer’s decision to fire both union members and AFPs because they

 7   are represented by unions during collective bargaining. Donohue v. Madison

 8   (“Donohue I”), No. 1:13‐CV‐918 (FJS) (CFH), 2017 WL 2171276, at *3–6 (N.D.N.Y.

 9   Apr. 14, 2017). The District Court ultimately certified its order for interlocutory

10   appeal pursuant to 28 U.S.C. § 1292(b). Donohue v. Madison (“Donohue II”),

11   No. 1:13‐CV‐918 (FJS) (CFH), 2017 WL 3206326, at *4–5 (N.D.N.Y. July 27, 2017).

12   On appeal, we conclude that the AFPs’ First Amendment right to association was

13   not protected solely because the AFPs were represented by the union during

14   collective bargaining. We therefore VACATE and REMAND the District Court’s

15   order as it applies to AFPs but AFFIRM the District Court’s order as it applies to

16   union members.




                                               7
 1                                    BACKGROUND

 2         1. Facts

 3         The New York State Thruway Authority (the Authority) finances,

 4   reconstructs, and operates the New York State Thruway and New York’s canal

 5   system. For a number of years, the Authority faced significant financial

 6   pressures, including mounting debt due to the repair of aging infrastructure and

 7   rising health insurance costs for employees. In response, the Authority

 8   implemented cost‐saving measures, including freezing salary increases for its

 9   non‐unionized employees from 2009 to 2012. In 2012 the Authority’s credit

10   rating fell as it prepared to finance a replacement for the Tappan Zee Bridge. The

11   Authority sought recurring operational cost reductions from its union‐

12   represented employees by getting concessions from its unions during

13   negotiations over new collective bargaining agreements (CBAs).

14         The Authority recognized three unions as the bargaining agents for four

15   separate bargaining units of employees. New York law and the CBAs made

16   anyone who accepted an Authority position in a bargaining unit a “union‐

17   represented” employee. See N.Y. Civ. Serv. Law § 204(2). Union‐represented

18   employees in turn were divided into two groups: union members who had



                                             8
 1   signed a union membership card; and AFPs, who were not union members but

 2   were still represented by unions in collective bargaining. In accordance with

 3   then‐governing law, see Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235–42

 4   (1977), overruled by Janus v. Am. Fed’n of State, Cty., & Mun. Emps., 138 S. Ct.

 5   2448 (2018), AFPs were obligated to pay fees to support collective bargaining but

 6   could object to having their fees used to support the unions’ political and

 7   ideological projects and, if they objected, receive a prorated refund.1

 8         Beginning in 2012, the Authority warned both the unions and union‐

 9   represented employees that layoffs might result from the unions’ refusal to make

10   certain concessions with respect to the CBAs. After talks broke down, the

11   Authority, true to its word, implemented a reduction in force (RIF). The RIF

12   terminated only union‐represented employees—218 union members and thirteen

13   AFPs—eliminating a total of 231 full‐time positions apportioned among the four

14   bargaining units.




     1In accordance with Abood, the unions asked AFPs to advise them if they were
     unwilling to have their union fees expended on political and ideological activities. See
     Abood, 431 U.S. at 237–41. Under the Supreme Court’s recent decision in Janus, a union
     may no longer extract any fee from an AFP absent the AFP’s affirmative consent. 138 S.
     Ct. at 2486.
                                                9
 1          Plaintiffs‐appellees New York State Thruway Employees, Teamsters Local

 2   72 (the Teamsters) and Civil Service Employees Association, Inc., Local 1000,

 3   AFSCME, AFL‐CIO (CSEA) are two of the unions recognized by the Authority,

 4   and together they represent the vast majority of the 231 employees who were

 5   laid off.

 6          2. Procedural History

 7          Following the RIF, the Plaintiffs sued the Authority and a number of state

 8   officials (together, the Defendants) under 42 U.S.C. § 1983 and New York law,

 9   alleging that the termination of union‐represented employees violated the

10   employees’ First Amendment right to associate. Donohue I, 2017 WL 2171276, at

11   *2. After the Plaintiffs moved for class certification, the parties, each relying on

12   Rowland, cross‐moved for summary judgment on the Plaintiffs’ First

13   Amendment claim. Id. at *1. Describing Rowland as “fundamentally concerned

14   with the use of targeted layoffs to penalize and pressure the bargaining coalition

15   to accept the defendantsʹ concessions to sign a new CBA,” the District Court

16   concluded that heightened scrutiny applied to employment decisions based on

17   union representation without regard to whether the affected employees were

18   union members. Id. at *6. The court denied summary judgment because



                                               10
 1   material factual disputes remained with respect to whether the RIF was narrowly

 2   tailored to serve a vital state interest. Id. at *6–8.

 3         The Defendants moved for reconsideration, arguing that heightened

 4   scrutiny did not apply to all union‐represented employees and that, in any event,

 5   the Plaintiffs had failed to show that union‐represented employees were targeted

 6   because of their association with a union. Donohue II, 2017 WL 3206326, at *1.

 7   Although the District Court denied the motion, it certified to this Court the

 8   following question: “Under Rowland, are ‘union‐represented individuals during

 9   the bargaining process’—consisting of both union members and agency fee shop

10   payors—a protected class, such that employment decisions based on employees’

11   union representation during collective bargaining are subject to strict scrutiny?”

12   Id. at *5. In certifying the question, the District Court also clarified that

13   “Plaintiffs [would] have to establish causation at trial.” Id. at *3.

14         The Plaintiffs’ only unresolved motion before the District Court, for class

15   certification, remains pending since we stayed all District Court proceedings

16   when we granted the Defendants’ motion for leave to appeal the District Court’s

17   interlocutory order.




                                                 11
 1                                       DISCUSSION

 2         1. The Certified Question

 3         When a district court certifies a question of controlling law pursuant to 28

 4   U.S.C. § 1292(b), we “assume jurisdiction over the entire order, not merely over

 5   the question as framed by the district court.” City of New York v. Beretta U.S.A.

 6   Corp., 524 F.3d 384, 392 (2d Cir. 2008); see Yamaha Motor Corp., U.S.A. v.

 7   Calhoun, 516 U.S. 199, 204–05 (1996). We can therefore review “any issue fairly

 8   included within the certified order,” Cal. Pub. Emps.’ Ret. Sys. v. WorldCom,

 9   Inc., 368 F.3d 86, 95 (2d Cir. 2004) (quotation marks omitted), and “consider a

10   question different than the one certified as controlling,” Yamaha, 516 U.S. at 205

11   (quotation marks omitted); see also 16 CHARLES ALAN WRIGHT ET AL., FEDERAL

12   PRACTICE AND PROCEDURE: JURISDICTION § 3929 (3d ed. 2019) (“The court may . . .

13   consider any question reasonably bound up with the certified order, whether it is

14   antecedent to, broader or narrower than, or different from the question specified

15   by the district court.”).

16         The District Court applied heightened scrutiny to the Defendants’

17   termination of AFPs based on their union representation. Donohue I, 2017 WL

18   2171276, at *6. On appeal, the Plaintiffs similarly argue for the extension of First



                                              12
 1   Amendment protections to AFPs based entirely on the fact that a union

 2   represented them in collective bargaining. At oral argument, however, the

 3   Plaintiffs also expressly disclaimed any argument that the AFPs are protected

 4   under a theory of First Amendment associational rights in this case. We

 5   therefore leave that question for another day and consider a slightly modified

 6   question on appeal: “Under Rowland, do employees enjoy First Amendment

 7   protections merely because they are represented by a union during collective

 8   bargaining such that an employment decision based on that representation is

 9   subject to strict scrutiny?” Our answer to the modified question is no. At the

10   same time, we reaffirm that strict scrutiny applies to employment decisions

11   based on an employee’s status as a union member.2




     2The Plaintiffs also brought an Equal Protection claim that the District Court
     “analyze[d] . . . together” with the First Amendment targeting claim because it viewed
     the claims as “rais[ing] identical issues.” See Donohue I, 2017 WL 2171276 at *2 n.5, *3.
     The District Court’s holding relied entirely on its interpretation of Rowland. See id. at
     *6; see also Donohue II, 2017 WL 3206326 at *2–3, 4. Thus, since we find that under
     Rowland employees do not enjoy First Amendment protections merely because they are
     represented by a union during collective bargaining, we need not address whether
     Plaintiffs’ termination violated the Equal Protection Clause here. On remand, the
     District Court should revisit the Plaintiffs’ Equal Protection claim in light of this
     opinion.
                                                13
 1         2. The First Amendment

 2         As to both AFPs and union members, we start and end our analysis with

 3   Rowland. There we explained that conditioning public employment on union

 4   membership inhibited an employee’s fundamental right to associate with a union

 5   and therefore triggered heightened scrutiny. Rowland, 718 F.3d at 133–34. We

 6   have previously explained that public employment decisions that do not

 7   implicate a fundamental right are subject to rational basis review, a standard that

 8   requires only “a nexus between legitimate government ends falling within

 9   constitutionally permissible powers, and a means not prohibited by the

10   Constitution to achieve them.” Zalewska v. Cty. of Sullivan, 316 F.3d 314, 322

11   (2d Cir. 2003). Our holding in Rowland flows from the principle that the First

12   Amendment protects “the practice of persons sharing common views banding

13   together to achieve a common end.” N.A.A.C.P. v. Claiborne Hardware Co., 458

14   U.S. 886, 907 (1982) (quotation marks omitted). But Rowland did not say that

15   being represented by a labor union during collective bargaining by itself

16   conferred First Amendment protection and the heightened scrutiny that comes

17   with it. See Rowland, 718 F.3d at 132–34. To be sure, collective bargaining

18   activities implicate the First Amendment right to freedom of association because



                                             14
 1   these activities represent the “common end” of a union’s collective efforts.

 2   Claiborne, 458 U.S. at 907; see also Roberts v. U.S. Jaycees, 468 U.S. 609, 622

 3   (1984); Rowland, 718 F.3d at 132–34. We therefore examine those activities to

 4   determine if the right has been violated. But we have never held that anyone

 5   who is represented during collective bargaining is for that reason alone entitled

 6   to First Amendment protection from government interference, and we decline to

 7   do so now.

 8                A. AFPs

 9         As noted above, the Plaintiffs, echoing the District Court, nevertheless

10   argue that the AFPs were protected by the First Amendment solely because a

11   union represented them during collective bargaining. But we disagree that an

12   employee enjoys First Amendment protections merely because the employee,

13   like each AFP in this case, is represented by a union during collective bargaining.

14   If that were true, then any person represented by an organization involved in an

15   activity of political, cultural, religious, or economic importance would receive

16   First Amendment protection based on the right to engage in expressive

17   association. That is obviously not the case: When determining whether a person

18   represented by an organization may lay claim to an associational right, we



                                              15
 1   consider whether that person has engaged with others in a “collective effort on

 2   behalf of shared goals.” Roberts, 468 U.S. at 622. Although for purposes of

 3   making that determination not all AFPs are similarly situated, as the Plaintiffs

 4   appear to presuppose, crucially, all AFPs are represented by the union not

 5   because of their choice to engage with the union, but by operation of New York

 6   law and the terms of the CBAs. Consequently, AFPs who affirmatively

 7   disassociated with a union by objecting to paying for a union’s political and

 8   ideological projects but who continued to be represented by the union during

 9   collective bargaining could not claim that an adverse employment action

10   interfered with their right to associate with the union. In extending Rowland to

11   all AFPs purely because they were represented by a union in collective

12   bargaining, the District Court went too far.

13         For these reasons, we conclude that AFPs do not have a First Amendment

14   right to freedom of association merely because they are represented by a union

15   during collective bargaining.3 We therefore remand this case to the District

16   Court to determine whether the layoffs of the thirteen AFPs were justified under




     3Again, the Plaintiffs here have affirmatively disclaimed that the AFPs have any
     associational rights based on their engagement in a collective effort with union
     members.
                                               16
 1   rational basis review. See Ysursa v. Pocatello Educ. Assʹn, 555 U.S. 353, 359

 2   (2009); Kraham v. Lippman, 478 F.3d 502, 506 (2d Cir. 2007). In doing so, we

 3   recognize, as the District Court did, that on remand “it is highly likely that

 4   Defendantsʹ decision to terminate [union‐represented] employees would pass

 5   rational basis review.” Donohue II, 2017 WL 3206326, at *4. But we think the

 6   District Court is better positioned to consider that question in the first instance.

 7                B. Union Members

 8         The termination of those Plaintiffs who are union members is another

 9   matter altogether. Under Rowland, union members clearly enjoy a First

10   Amendment right to associate in labor unions. See Rowland, 718 F.3d at 134

11   (noting the “well‐established principle that union activity is protected by the

12   First Amendment”). The Authority itself acknowledges as much. See

13   Appellants’ Br. 21–22. If the Authority terminated the union members because of

14   their union membership—a factual question the District Court decided to let a

15   jury determine—then strict scrutiny applies to its employment decision. We

16   therefore affirm the District Court’s decision as it applies to those Plaintiffs who

17   are union members.




                                               17
1                                      CONCLUSION

2         For the foregoing reasons, the judgment of the District Court is

3   AFFIRMED in part and VACATED and REMANDED in part. Our previous

4   stay of all proceedings in the District Court, including the Plaintiffs’ motion for

5   class certification, is hereby lifted. On remand, the District Court should

6   consider whether to certify a class limited to the union members alone, consistent

7   with this opinion.




                                             18
