not differences in the three cases and if there are differences let us know that we don't believe that for purposes of the issues that are presented on this appeal that there are any significant differences between the three case judgment to defendants on plaintiff's freedom of information freedom of association and equal protection claims first the district court erred by holding that a brand new class specifically union represented employees during bargaining are protected under the first amendment and mayor sir claims based on freedom of association in doing so contrary to all prior precedent the district court extended freedom of association rights for the first time to the members of a compulsory association or bargaining unit for which a union has been granted exclusive representation rights under state law second the district court erred in applying strict scrutiny to layoffs within the thruway authority soley because the layoffs occurred during collective bargaining and impacted union represented employees without first finding that the impacted employees were singled out for a penalty as a matter of public policy if the district court decision with respect to plaintiffs freedom of association and equal protection claims is not reversed it would affect a drastic change in the balance of bargaining power between public employers and unions that is a balance there has been carefully maintained for decades under new york state's taylor law such a precedent would all to effectively guarantee that any lay off affecting union represented employees during bargaining would be taken straight to federal court for strict scrutiny review resulting in an unprecedented flood of additional federal litigation in this case we've got only a handful of people who fall into the  nonunion member but represented by the union for collective bargaining purposes category right the best better team so correct thirteen who were impacted by the laugh that is not the significant issue your honor the significant issue is that unlike in roland where the freedom of association claims were predicated on union membership which is a voluntary association here plaintiffs take their freedom of association claims on union representation claims and so if this class were redrawn to just be the union members that would solve the problem as far as you're concerned it would it would be a protected class those are not the claims that were presented to the district court those are not the have you would still be making the same argument yes because it's the nature of the group for which protection is sought your honor to have any freedom of association claim added tarte the freedom of association presupposes the freedom not to associate it presupposes the ability to join a protected group or to opt out of their group voluntary financial contributions to the union sekret the union members honor but aside from the financial difference the major difference is that unlike the union which is formed by the voluntary choice of its members a bargaining unit is formed by operation of law when the change the nature of their claims from bargaining unit representation our union representation in a bargaining unit to the activity ever ejecting concessions they're really plaintiffs here we think are trying to blur to critical distinction through that you can see that the reduction in force was related the fact of their rejection of the through authorities offer with regard for the collective bargaining agreement with regard to their participation in the cost of their health care that decided by the supreme court such as the roberts vs jaycee's case has always been clear that you cannot have a freedom of association without the freedom not to associate and that freedom is lacking here plaintiffs district court had two different types of crimes they had target in claims based on union representation that is what the district court decided and then they had separate claims of retaliation based on the activity of rejecting concessions on this appeal plaintiffs are tempting to recast their union activity claims into their target in crimes and when the nature when when the basis for the claims is union activity those are still claims to which strict scrutiny does not apply under the root tan line of cases on which roland just found it strict scrutiny applies to freedom of association membership claims and can all to apply to certain types of activity claims but does not apply to the only activity there is it issue here which is rejection of concessions on agree  your honor the agency fees are not the critical issue here that the payment of fees we respectfully submit is not the critical issue it's the nature of the association and when you when you put it that way so i'm trying to figure out what the little blocks are they get us to the point that you want us to be and i'm trying to understand what the who these a f p s are that is their agency shop the pairs were paying the union for their bargaining services they were required by law to do that have an opportunity to object to the use of their fees for certain purposes not for collective bargaining no they have no here understand that you don't think it's a critical issue but it might be critical to me they don't object to the use of their fees for those perks so they've got they've got some sense of association with some aspect of what the union is trying to do because they could object but they don't correct we were just agree your honor the entire bargaining unit is formed by operation of law it is a compulsory association and indeed in the janice case it was decided by the supreme court in june janice recognized that the entire bargaining unit is a compulsory association as a result of janice the former agency shop the pairs no longer have to pay for the union services at all for collective bargaining or anything else however they are also well look we can change the question but the question was sort of was whether roland  extends to a group that includes these pieces right the question before you is whether freedom of association rights should be extended to members of a compulsory association a bargaining unit that is formed by operation of law represented by a union who by law is designated as exclusive bargaining representative we submit that strict scrutiny does not attach to the plaintiff's claims here for two separate independent reasons one the entire bargaining unit lacks a voluntary choice to be members of the bargaining unit they can choose to be union members and that is protected but they can't choose whether or not to be part of the compulsory bargaining unit in addition before strict scrutiny can attach there not only has to be a protected right to voluntarily associate there also has to be a right there also has to be a violation of that right and in particular for strict scrutiny to attach there has to be a singling out in penalizing of the plaintiffs for their freedom of association rights or other substantial burden that was not present here because unlike in roland the authority obtained budgetary savings from all groups of its employees nothing in roland suggests that the only way to avoid a targeted layoff is to treat all employees the exact same way it did saks in time in this court should not impose such a rule here because of the significant infringement that would have on employers progressives to manage finances and operations and efficiencies under the taylor law the employers have to be free to treat different groups of employees differently but but so so this goes back to the certified question because right that if you provide than show at a trial that you did not or your client did not target these people because of their union membership and there was there are other reasons and there are legitimate sound grounds for the reduction in force then you then you win but right now i think it's a very narrow question that is unrelated to the targeting question it's just does roland extend to this group of people and we submit that it doesn't because regardless your honor of whether there is one nine union member in the bargaining unit or hundred on any given day because that will ferry freedom of association right ha never been extended by this court or the supreme court to an compulsory association of bargaining unit members and if it is your honor if the district court decision were affirmed we would have a situation where virtually every lay off during bargaining within the public sector would automatically be subject to strict scrutiny the court dockets would be flooded and a very careful balance that there was no targeting here but before you even get this that's the argument but that's not exactly before us yet we agree that you only have to reach the penalty or targeting argument if you find that union represented employees during bargaining are a protected class and they cannot be for the reason that was articulated by the supreme court in roberts vs j c s you have to have a right to opt out and bargaining units are formed by operation of new york's civil service saw section two zero zero seven unlike union membership they're not formed by the voluntary choice of their employees in rowland the nature of the claims was based on union membership here the nature of the claims presented by the plaintiffs in just sided by the district court was based on union representation during bargaining it was i mean i think the argument is it's the same thing these other folks are just incidental or collateral damage but the real goal here was to punish the union for the unions decisions that if a couple of the other folks happen to be affected so be it but that's that's what makes this indistinguishable from rol separate claims of retaliation based on their union activity of rejecting concessions this court never reached those claims but suggested that pickering not strict scrutiny would apply in here if the focus of plaintiff's claims us are trying to do on appeal is changed from their status from who they are union represented employees to their activity the unions decision to reject of what would your argument be there that we would agree is protected by the freedom of association because different because all five thousand and ten of the members the five thousand black members in ten white members were deval made a voluntary choice regardless of their race could join me at the end double a c p go back to my initial set of questions these a f p s or they will object they're not union members per se but they don't jack so their fees go they have no objection they have a right to object but they do not object to certain maybe all of the purposes of the union they don't have the right to opt out of the bargaining unit they don't have the right to not be represented by the union for purposes of collective bargaining and again going back to the folk if the focus is on the activity of rejecting concessions union and typically that directly implicates the operations and the fish and see if the government employer and not just the sovereign but as an employer have always been subject to a pickering balancing test and not just strict scrutiny here when the union rejects concessions because of the operation of the new york state triborough amendment to the taylor law which is our to our nine a one of the civil service saw the public employer reduce benefits during or or after they break down you can't reduce benefits that the employees already and so for in the end for instance with regard to the two bargaining units that are in question here the fact that they were not paying it creates a dangerous it a difficult situation for the public employer because the unique just said that the bargaining unit could just sit back and not agree to concessions where the where the public employers seeking to reduce costs is to pick bring ballon to task because of the necessity of weighing the employer's interests and operation efficiency which would be completely shut down by the rejection of concessions if they cannot lay off reserve three minutes for a bottle thank you thank you for the plaintiffs in the new york through authority teamsters case the difference in any of these we agree there's no difference and we've just split our time by ten minutes just because we have twenty minutes but i want to be really try i want to be really precise and i think the the issue the legal issue before the court based is based on the the order is does the roland analytical framework not apply simply because the record roughly in this case reflects that a handful of agency fee payers were impacted by the employment actions that war targeted at the bargaining units and effectively targeted at union members in we've argued below and it's just so we have shifted our emphasis somewhat from our initial argument and honestly that's partly because the plaintiff's brief to this court was exceptionally clear in a way that made us rethink some of the issues but the question is whether the order roland is in the record it's a joint appendix for nine three zero two four nine four six is the end of the last piece of in the joint appendix i urge you to read that carefully because what happened in roland is exactly what happened here if you look at particularly paragraphs forty six forty seven forty nine fifty one fifty five and sixty of that stipulation what occurred is the governor sought concessions especially almost the same sorts of concessions on health insurance the unions said they weren't willing to do that and the governor in response to the union's unwillingness to accept those those those concessions directed the agencies to eliminate zisha ins within bargaining units that is what happened this controversy about the stipulation is in one of the phrase they talk mostly about unionized employees but there is there is there is an agreement in the stipulation and this was so the governor would have to testify but was was that the targeting was at union members but in fact if you read the stipulation that targeting was directly bargaining units which was clearly a proxy because every collect in every collect the public sector plec the bargaining agreement used to have some agency she payers now after janice there are no agency fee payers so they're either members or nonmembers but the same legal theory for us would apply whether the thirteen people and there are nuances right and judge lower their lawyers picked up on it there are nuances because agency fee payers pay for union political expenses although they could object and then they'd only pay for collective bargaining but the critical thing i think is judge westley was pointing out is that only union members get to vote on the contract and get to participate in collective bargaining and in come two most recent supreme court cases on the association all rights of people to be either members or nonmembers of union that's janice and knox the court made clear that this association all right includes association all activities and this court in rowland picked up on that and on page one thirty four it says indeed kno effectively precludes defendants from arguing the case is holding it unconstitutional to fire or refused to hire union members or distinguishable because defendants here acted not out of hostility to union membership per se but as  tactic to put pressure on the union in labor negotiations that's what happened the association activity here is not just that there was hostility because people were union members there was hostility because at the union was it was exercising the association all rights to take a particular position in the goshi ations and that does not transform this to a pickering cobb case because it's an association all case by a group of employees and if you read will win if you look at janice again there's a lot of discussion by judge alito in janice about pickering doesn't really make sense in the context of a pure association or association activity case because pickering is designed to deal with well what happens when sort of an individual takes a certain action that's u r the certain public employee takes action that raises an issue of public concern and then the government takes action against that individual and then the government can justify its action based on balancing of the government's interest as an employer and the employees interest this case doesn't really raise any of those questions and janice and to some extent knox which is a precursor to janice make that clear this court got it right when it said this is a targeting case but let's stop for saying i want to respond to something that ms barrasso said she said that this is a bargaining unit forms not by voluntary association but by operation of the law you agree with well not exactly i mean originally a bargaining unit is formed because the members vote to form the bargaining  the vote for the union you don't vote for bargaining you vote to be represented by a union and if a majority of the employees in the bargaining moon unit vote to be represented by a union then they're represented by the union it would make any difference then whether it's fifty one percent union members and forty nine percent non union members in this bargaining unit it would make good in might make a difference on the means test but so the way i think part of the problem is partly our fault like there's a little bit of a conflation between the notion of what the protected class is in versus what the class certification the class that would be certified if you look at the role and stipulation on page four nine three seven of the joint appendix that class is exactly the class that we asked to be certified here it's all members it's all people employed by a certain date who are members of a bargaining unit represented by these unions in some cases that are getting units and union membership are going to be indistinguishable are going to be the same and so it could be a proxy with making a decision based on one might actually be a decision based on the other but that's not always going to be gay right it's not well it's not always it is in this case but it's not always the case just a slight it was a dozen or so people who were members of the right who were impacted out of five hundred forty eight but the so what i'm saying is that the distinction that matters i think it matters also after janice is because the protect tonight the association all right is to be a union member and then to participate in the collective bargaining process and take a position i don't i don't think we may not all agree on it i don't think after genesis in particular that nine members have the same protection of association by just being in a bargaining unit that the members have but what i'm saying is under the facts of this case just as the facts of roland the targeting was directed at union members members made up you know whatever it is ninety seven point five percent of the people who were targeted who were impacted by the adverse employment actually questioned that yes why don't i think that's undisputed that ninety seven point five percent of the class is drawn differently the classes join differently because those thirteen non members are agency fee payers who are impacted should be part of the class because they lost their association rights being affected their association rights aren't so reckless with their interest and part of it because in this because if you take let's use another let's say if you fire if you eliminate one hundred positions in because because ninety eight of them are african americans and the two people who are who are nine african americans who are impacted that are only impacted because it's an incidental impact of the intentional discrimination case against african americans those people should be part of the class because they lost their job a class of people discriminated on the basis of their right now as a remedy for certification purposely kept articulate a class in terms of the harm right the right right and the harm is they lost their jobs because of the discrimination of you to strict scrutiny losing a job because of your membership in a protected class well i i mean i think is interesting distinction we think that because janice made clear that the union has and the state has a constitutional obligation not to discriminate gate against nonmembers that's not stated explicitly in janice if so if nonmembers lose if five nonmembers let's say does this case if thirty nine members lose their job as a result of the state's illegal targeting of members then they lose it as an incidental consequence they should be part of the class system title to the remedy because they only lost their jobs because your view your position is that those thirteen or so people do not have association all right so at least in the context of this case that impact they don't have the same association rights as the members of the number right and the true right not even voluntarily part of this associate while they're there so they're voluntarily part of contributing to union political activities because they don't have to do that but but no i want to not arguing unit includes them whether they like it or not right correct i agree with that and so the reason are their constitutional rights affected by it they're not but there are those thirty times in terms of a constitutional right no i'm talking so there are two issues ok what's the protected class and what's the class this entitle to relief for class certification purposes and this is exact if you look at the class in roland it's all bargaining unit members which includes agency fee payers that there are out of a out of three thousand people who are laid off a bunch of them or agency fee payers that's just the way it is in the world but so but the reason that i'm saying the thirteen payers are properly part of the certified class is because if they this was a targeting case and if they only lost their jobs because of incidental damage as a result of the unconstitutional targeting of union members then they are entitled to a remedy might be in time to remedy but they're not entitled to the same right because the damages here are going to be perhaps focused primarily on the loss of the job but it's also going to be the violation of a constitutional right correct i'm saying to be part of the damages correct yes so why should the non union member be intitled to the same damages as a union member when you just acknowledge that they don't have any associational rights because they are types of discrimination if you're a victim because the employer is trying to get at or trying to impact some protected class of people and you just happen to have a certain seniority that causes you to be in the way and you lose your this set of facts and what you've told us is that with respect to these they don't have an independent association all white in the context of this case they don't have the same association all right they're not members of the union what i'm saying is and the only reason this didn't come up in roland is because i thought at the very beginning of your argument you were making a point  made a point about we should look at the association with the union it's really about union activity so the act the association all activity is not just being in the union it's that actions taken by the union that and that's what roland found it's not it's not it's not it's not that there's necessarily anti union mentality it's punishment of the union members because of the position taken by the union eight three three i just want to take the opportunity to respond to a couple of the points that were made regarding agency fee payers specifically first foremost they in this case there's agency fee payers and then there are objectors objectors or sensually can be a subgroup of agency fee payers objectors are the people who not only don't want to be members of the union but they express that by saying they don't want to contribute to the ideological and political functions of the union and they provide that in the form of a letter and they receive under operation of new york law the union then provides them back the share of the fees that they pay they get reimbursed for the expenses that the union spends for political no ideological purposes we have none of those here if you did would it matter would this be then and over overly broad class if in addition to thirteen if you had four of them who were objectors i don't believe so i don't believe that's the case but to the extent that there was at some point some claim and i believe that this first appeared in the defendant's response to plaintiff's motion for summary judgment that these agency fee payers affirmatively state that they don't want to be part of the union that that is just not accurate and that there is a difference but even the objectors have to pay for the collective bargaining aspect of the union right they do they have associated whether they want to or not they are associated although they don't necessarily is as my colleague stated they don't necessarily exercise the same right to association and that's their argument right that this is sort of critical because the constitutional right to associate recognizes the ability to associate with the people you want to associate with these people don't necessarily want to associate all with the union right if they did they'd be members so it's not clear what the record below demonstrates that it's not clear why these people weren't members just think that they had not filled out a union card or perhaps they had in the past and due to administrative reasons they were not there is no clear  l they may have been at some point we're not sure i mean well of where we're trying to we're trying to understand the nature of the rights being violated that they're either a member of the or not correct and if you're a member th says well you got us you've got people in here that are not members and so therefore it's not an association all right whatsoever it's more akin to the the difficulties that incurred between an employer and it represented representative associations that were not associations in dealing with the employment situation but for you for you when the fourteenth amendment aside fourteenth amendment issue aside on the first amendment so station right you have to be a member right yes right and the problem is is that not everyone is a member within the bargaining unit and so your opponent says therefore this is not about a membership right the union still represents and has to represent in good faith asked q two it didn't join didn't pay it in willingly pay they didn't sign a union card so so the point is is that it is do we look at this in terms of the bargaining unit or do it because we're free where we're free to affirm on any grounds that and we don't have to answer the sort of my question we can answer raise any question we we choose to do so or knurl or panel decided to certify that question ok but now this comes before us and our powers are broader than just deciding to sort of question and so the questions that you've been getting or that have been been posed are is there something less than the bargaining unit that would afford would accommodate that would require an affirm it's for a reason different from that which was employed by the district court and so that's why to my mind why there's been a number of questions about the differentiation between those who can vote on the contract and those who get the benefits of the country and and so i ask you i mean is it are you are you  want us to decide the bargaining unit issue or do you want us to side of the so station all right issues we understand it to be association all right i had a feeling that that was the what defendants want here is to skip over rights relating to a union activity you see as union membership rights the union members are the ones exercising the association rights but i think that what gets lost there perhaps is what happened in this case and what the employer the thruway authority the canal corporation what they were attempting to accomplish and that was interference with those association rights of those members but so maybe the solution is to just draw in now or class for purposes of the constitutional claim because the harms to the members is different than the harms to the nonmembers isn't it yes the harms different everybody's boastfully interested in their jobs and pensions but there's still going to be some amount of damages if you win that goes to the constitutional violation right there should messing with your right to associate and that's going to be different from members and i guess nonexistent for nonmembers right yes and that is the difference as far as i believe what my colleague was saying was that the difference with respect to for example class certification and the union right now are you referring i'm sorry referring to the the certified question the class and certified question of the class is defined based on membership in a collective bargaining unit not membership in the union right yes some cases that will be that's the same thing because everybody in the collective bargaining unit is in the union but that's not true here right correct and it's generally it's usually not true i mean there's not really always a few members at  least but and yes the gri the focus the targeting was union members and there were because the way the thruway authority constructed the layoffs and the way civil service law operates there were bar other the agency some agency fee payers but to take it out of the realm to take the layoff out of the realm of interfering with the association activity just because a few of the people they mean this is you not providing a theory of associational rights so i think so when you say if you if it had been fifty a f s would we be in a different place in the context of what happened here we're in the same place because the thruway authority proceeded with the layoffs in order to interfere with the association activity of the members and the association rights of the members the way they went about this in centrally threatening the members telling them that if they if their union comes to an agreement isn't that presumably a question of fact in was not a reason for denying summary judgment there is it's a question of fa but defendants want to jump over the question of fact and just say that they want to see that we've got a certified legal question before us and the question was whether roland extends to a situation where non union who know you've conceded association or rights that are being impacted whether or not whether it's volin extends to non union members even though the majority of the significant majority of people impacted by this reduction force are union members that's the question as i see it that's the certified question yes we think that the certified question kind of misses the point frankly because it's not it doesn't need to be so broad that you have to have the bargaining unit proceed with there are everyone in the bargaining unit engage in association activity for those who are members to be claims based on union membership are not within the scope of the certified order and while we agree that this court is not bound by the precise control in question of law presented this court is bound and limited to the four corners of the certified order plaintiffs made a strategic decision several years ago to cast their targeting claims is based soley based on union representation those are the claims that were presented they'd met their right at the outset of their brief and on page three they say there's of the sole claims we presented union representation and those are the only claims that the district court decided so we would respectfully  would there would be the same argument even if there were one hundred fifty year piece there would be the same argument if there was one or non or hundred fifty when the basis for the claim is union representation there is no voluntary choice  represented by the union mr adler noted that a bargaining unit is formed by majority rule but majority rule does not create a freedom of association for majority of voters in this state elected a democratic governor the representation is broader than the membership right we're saying that it's not association because the representation is not a voluntary choice by members of the bargaining unit bogarde listen we agree with you and we send it back to judge scalia what's to prevent them then for just drawing this class more naturally to be the union members because those are the tuna and the a f p s are just a handful of dolphins who get caught in the net they don't have association or rights but the union members do and that's really what's driving this train we're going to be in pretty much the same place right know we would not you're all be a thirteen member it will be a smaller class by thirteen members they made a strategic choice years ago to base their claims on union representation and we don't believe they get to start over now you're saying it's too late is that the same question it's too late to allow them to narrow the earth and to amend that is not they make the counterargument before the district court because if it is not within the scope of the certified order and if i could just turn to the activity if we sent it back then it's a rule five issue as to whether or not you want to try fifty we don't believe we don't believe so at this point your honor if i could just touch on the activity claims again this court in the decision cited on page eleven of our reply brief has routinely held that when the nature of the claims switches to activity in this case rejection of concessions that impacts the operations and efficiency of the employer that is not a strict scrutiny claim so even if this court were to find that collective bargaining activity and particularly rejection of concessions can be protected under the freedom of association it would be a pickering test the plaintiffs have proved scented no claims before this court they are subject to strict scrutiny no matter to many times they try to change the theory of their case they have the same essential problem and if this court allows the class it was drawn by the district court which was its first character would scan roll into an entire bargaining unit and then allows the plaintiffs to avoid having to show any penalty before strict scrutiny applies which was the second error of the district court date their district court found that strict scrutiny apply simply because the layoffs  concerned the class certification motion is still pending thank you very much