United States Court of Appeals 

For the First Circuit 

No. 18-2201 

JONATHAN REISMAN, 

Plaintiff, Appellant, 

v. 

ASSOCIATED FACULTIES OF THE UNIVERSITY OF MAINE; UNIVERSITY OF 

MAINE AT MACHIAS; BOARD OF TRUSTEES OF THE UNIVERSITY OF MAINE; 

and THE STATE OF MAINE, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Jon D. Levy, U.S. District Judge] 

Before 

Thompson, Selya, and Barron, 

Circuit Judges. 

Andrew M. Grossman, with whom Richard B. Raile, Renee M. 

Knudsen, BakerHostetler LLP, Robert Alt, Daniel Dew, and The 

Buckeye Institute were on brief, for appellant. 

Jacob Karabell, with whom John M. West, Bredhoff & Kaiser, 

P.L.L.C., Jason Walta, and National Education Association were on 

brief, for appellee Associated Faculties of the University of 

Maine. 

Linda D. McGill, with whom Tara A. Walker and Bernstein, Shur, 

Sawyer & Nelson, P.A. were on brief, for appellees University of 

Maine at Machias and Board of Trustees of the University of Maine. 

Susan P. Herman, Deputy Attorney General, with whom Aaron M. 

Frey, Attorney General, and Christopher C. Taub, Assistant 

Attorney General, were on brief, for appellee State of Maine. 
October 4, 2019 
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BARRON, Circuit Judge. Jonathan Reisman, an economics 

professor at the University of Maine at Machias, seeks to 

invalidate a Maine statute that governs collective bargaining 

between the state's university system and its faculty on the ground 

that the statute violates the First Amendment of the United States 

Constitution. The District Court granted the defendants' motion 

to dismiss. We affirm. 

I. 

The Maine statute that Reisman challenges is the 

University of Maine System Labor Relations Act, Me. Stat. tit. 26, 

§§ 1021-1037. Enacted in 1975, the statute is modeled on the 

National Labor Relations Act, 29 U.S.C. §§ 151-169, and extends 

collective bargaining rights to employees of the state's 

universities. 

The statute divides university employees into various 

"bargaining units" based on their occupational groups. See tit. 

26, § 1024-A. The faculty in the university system make up one 

particular bargaining unit, while "[s]ervice and maintenance" 

employees, for example, constitute another. Id. 

To facilitate labor negotiations, the statute provides, 

among other things, that a union that receives majority support 

within "a bargaining unit shall be recognized by the university, 

academy or community colleges as the sole and exclusive bargaining 

agent for all of the employees in the bargaining unit." Id. 
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§ 1025(2)(B). Once so recognized, that union is the bargaining 

unit's exclusive agent to bargain with the university system "with 

respect to wages, hours, working conditions and contract grievance 

arbitration." Id. § 1026(1)(C). 

No employee bears an obligation to join a union, see id. 

§ 1023, and, after Janus v. American Federation of State, County, 

& Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), 

nonmember employees are not obliged to pay agency fees to the union 

that serves as their bargaining unit's bargaining agent. However, 

the statute does provide that the bargaining agent "is required to 

represent all . . . employees within the unit without regard to 

membership in the organization." tit. 26, § 1025(2)(E). 

The Associated Faculties of the Universities of Maine 

("AFUM" or "the Union") has represented the faculty bargaining 

unit for Reisman's university since 1978. Reisman "resigned his 

membership in [AFUM] because he opposes many of the positions 

[AFUM] has taken, including on political and policy matters." 

(Internal quotation and citation omitted). 

On August 10, 2018, Reisman filed a complaint in the 

United States District Court for the District of Maine. His 

complaint alleges that the statute violates his First Amendment 

rights because, "[b]y designating the Union as [his] exclusive 

representative," the statute necessarily "compels [him] to 

associate with the Union[,] . . . compels [him] to speak and to 
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petition government, . . . [and] attributes the Union's speech and 

petitioning to [him]." Reisman also requests a preliminary 

"injunction barring Defendants from recognizing the Union as [his] 

exclusive representative . . . [and] barring Defendants from 

affording preferences to members of the Union." 

On December 3, 2018, the District Court dismissed 

Reisman's suit under Federal Rule of Civil Procedure 12(b)(6). 

The next day, Reisman filed a notice of appeal. On December 14, 

2018, Reisman filed a motion asking this Court for a summary 

disposition. He argued that this Circuit's binding precedent 

required us to affirm the District Court's decision and explained 

that a summary disposition would allow him to petition the Supreme 

Court for review more quickly. On February 6, 2019, we denied 

Reisman's motion. This appeal from the District Court's dismissal 

of his claims then followed. Our review is de novo. See Cunningham 

v. Nat'l City Bank, 588 F.3d 49, 52 (1st Cir. 2009); see also 

Doherty v. Merck & Co., 892 F.3d 493, 497 (1st Cir. 2018) (noting 

that "challenges to the constitutionality" of state statutes are 

reviewed de novo). 

II. 

Reisman first contends that, under the statute, as a 

faculty member of the university he must accept AFUM as his 

personal representative by virtue of its being the exclusive 

bargaining agent for his bargaining unit. Reisman then argues 
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that by forcing him to accept AFUM as his personal representative, 

the statute impermissibly burdens his First Amendment speech and 

associational rights, because it permits AFUM to speak for him 

when he does not wish for it do so and compels him to associate 

with AFUM when he does not wish to do so. His argument relies, in 

large part, on Janus, in which the Supreme Court held that "publicsector agency-shop arrangements violate the First Amendment." 138 

S. Ct. at 2478. According to Reisman, "the logic of Janus, as 

well as its application of that logic to the specific question of 

compelled union representation" demonstrates the constitutional 

problem with Maine's statute, though he is less clear in 

identifying the precise remedy that he seeks for the claimed 

violation. 

Setting the question of remedy to the side, the 

defendants respond in part by arguing that Janus is plainly 

distinguishable, as it involved a First Amendment challenge to a 

statutory requirement that a public employee pay an agency fee to 

a union serving as the exclusive bargaining agent of a bargaining 

unit. See id. at 2459-60. There is, the defendants, contend, no 

comparable forced association or speech at issue here, as is shown 

in our decision in D'Agostino v. Baker, 812 F.3d 240, 244 (1st 

Cir. 2016) ("[E]xclusive bargaining representation by a 

democratically selected union does not, without more, violate the 
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right of free association on the part of dissenting non-union 

members of the bargaining unit."). 

We will return to the question of Janus's reach in a 

moment. But, for present purposes, it is enough to focus on the 

defendants' additional contention that the statute, fairly read, 

simply does not support the premise of Reisman's constitutional 

challenge -- that it designates AFUM as his personal 

representative. 

In contending otherwise, Reisman points out that the 

statute states that an exclusive bargaining agent must "represent 

all the university . . . employees within the [bargaining] unit 

without regard to membership in the organization." Me. Stat. tit. 

26, § 1025(2)(E). He emphasizes, too, that the statute provides 

that "one of [the] primary purposes" of a "[b]argaining agent" is 

"the representation of employees in their employment relations 

with employers." Id. § 1022(1-B). And finally, Reisman notes 

that, under the statute, a union becomes an exclusive bargaining 

agent for a bargaining unit only when "a majority of . . . 

employees in an appropriate bargaining unit . . . wish to be 

represented for the purpose of collective bargaining." Id. 

§ 1025(1). It is on the basis of these provisions that Reisman 

seeks to make the case that once AFUM became the exclusive 

bargaining agent for his bargaining unit, the statute transformed 

it, by operation of law, into his personal representative, 
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regardless of whether he agreed with its positions or whether he 

wished to associate with it. And thus, given his reading of the 

statute, he contends that it follows from Janus that the 

statute -- by forcing him to associate with AFUM -- violates the 

First Amendment no less than the statutory requirement to pay an 

agency fee that the Court struck down in that case. 

Yet, we must read the individual provisions of the 

statute, including the provisions that Reisman seizes upon to mount 

his constitutional challenge, in the context of the statute as a 

whole and not in isolation. See Dickau v. Vt. Mut. Ins. Co., 107 

A.3d 621, 628 (Me. 2014) ("[W]e examine the entirety of the 

statute, 'giving due weight to design, structure, and purpose as 

well as to aggregate language.'" (quoting Banknorth, N.A. v. Hart 

(In re Hart), 328 F.3d 45, 48 (1st Cir. 2003))). And, when we do, 

we conclude that the defendants have the better interpretation. 

The statute repeatedly makes clear that a union that 

acts as an exclusive bargaining agent is "the representative of a 

bargaining unit." tit. 26, § 1025(2)(A) (emphasis added); see 

also id. § 1025(2)(B) ("The bargaining agent certified as 

representing a bargaining unit shall be recognized by the 

university . . . as the sole and exclusive bargaining agent for 

all of the employees in the bargaining unit." (emphasis added)); 

id. § 1037(1) ("The university, academy or community college shall 

provide to a bargaining agent access to members of the bargaining 
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unit that the bargaining agent exclusively represents." (emphasis 

added)). Moreover, the statute contains a number of provisions 

that preserve the rights of every employee to refrain from joining 

a union without fear of discrimination, see id. § 1023(2),1 and to 

present their grievances to the university system without 

obtaining the permission of the bargaining agent, see id. 

§ 1025(2)(E) (noting that an "employee may present at any time 

that employee's grievance to the employer and have that grievance 

adjusted without the intervention of the bargaining agent," so 

long as the requested relief is consistent with the collective 

bargaining agreement and a union representative is "given 

reasonable opportunity to be present" at the meeting). In 

addition, to ensure that no employee is discriminated against 

during collective bargaining on account of their union membership, 

the statute clarifies that the bargaining agent must bargain on 

behalf of all "employees within the unit without regard to 

membership in the organization." Id. 

Considered in context, then, § 1025(2)(E) is not 

properly read to designate AFUM as Reisman's personal 

representative, as he contends. Rather, that provision merely 

 1 The statute prohibits any "person" from acting to "interfere 

with, intimidate, restrain, coerce or discriminate against [an] 

. . . employee . . . in the free exercise of [his] right[], given 

by the section, to voluntarily . . . not join a union." Id. 

§ 1023. 
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makes clear that a union, once it becomes the exclusive bargaining 

agent for a bargaining unit, must represent the unit as an entity, 

and not only certain of the employees within it, and then solely 

for the purposes of collective bargaining. Nor are the other 

provisions that Reisman relies on properly read to support his 

contention. In fact, their plain terms accord with this more 

limited understanding of the statute, see id. § 1022(1-B) (noting 

that a bargaining agent "has as one of its primary purposes the 

representation of employees in their employment relations with 

employers" (emphasis added)); id. § 1025(1) (stating that an 

"employee organization" may be voluntarily recognized as a unit's 

bargaining agent when it "alleg[es] that a majority of the . . . 

employees in an appropriate bargaining unit . . . wish to be 

represented for the purpose of collective bargaining" (emphasis 

added)). 

If there were any doubt about the correctness of this 

construction, moreover, we would be in no position to discard it 

in favor of Reisman's. The text of the statute, when considered 

in its entirety, by no means compels his view, and the Attorney 

General of Maine plausibly contends that, under the statute, "the 

union is the agent for the bargaining unit, which is a distinct 

entity separate from the individual employees." See Forsyth Cty. 

v. Nationalist Movement, 505 U.S. 123, 131 (1992) ("In evaluating 

[appellant's] facial challenge, we must consider the [state's] 
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authoritative constructions of the ordinance, including its own 

implementation and interpretation of it."); Ward v. Rock Against 

Racism, 491 U.S. 781, 795 (1989) ("Administrative interpretation 

and implementation of a regulation are, of course, highly relevant 

to our analysis."). 

Reisman does attempt to advance an alternative challenge 

in which he contends that, even if the statute merely makes the 

union the representative of his bargaining unit for purposes of 

collective bargaining, it still impermissibly burdens his First 

Amendment rights. He argues that the distinction between having 

a union represent a bargaining unit as an entity in collective 

bargaining and having it represent the employees within the unit 

individually is "immaterial because . . . the representation of 

the 'unit as a whole' infringes the rights of all non-consenting 

members of that unit." (Internal citation omitted). 

But, the Supreme Court's decision in Minnesota State 

Board for Community Colleges v. Knight, 465 U.S. 271 (1984), which 

we cited favorably in response to a similar challenge in 

D'Agostino, 812 F.3d 240, would appear to dispose of this 

contention rather clearly. The Supreme Court in Knight rejected 

a First Amendment challenge to a Minnesota law that provided for 

"exclusive representation of community college faculty," 465 U.S. 

at 278, for purposes of collective bargaining and "on matters 

related to employment that are outside the scope of mandatory 
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negotiations," id. at 274. We explained in D'Agostino that Knight 

held that there is "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." 812 F.3d at 243 (emphases added). And, as for 

Reisman's apparent compelled speech claim, D'Agostino found that 

Knight disposed of such a claim, too, for reasons worth quoting in 

full: 

No matter what adjective is used to 

characterize it, the relationship [between a 

bargaining unit and a bargaining agent] 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. 

 

Id. at 244. 

To be sure, D'Agostino was decided prior to Janus. 

However, we are obliged to follow circuit precedent unless 

undermined by intervening Supreme Court precedent or some other 
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compelling authority. See United States v. Barbosa, 896 F.3d 60, 

74 (1st Cir. 2018), cert. denied, 139 S. Ct. 579 (2018). And, as 

Janus focuses on the unconstitutionality of a statute that requires 

a bargaining unit member to pay an agency fee to her unit's 

exclusive bargaining agent, see 138 S. Ct. at 2478, we cannot say 

that precedent provides us with a basis for disregarding 

D'Agostino. In any event, to the extent that Reisman adverted to 

this alternative theory in his opening brief, as opposed to merely 

in his reply brief and at oral argument, see Aulson v. Blanchard, 

83 F.3d 1, 7 (1st Cir. 1996) ("[R]elief from an appellate court, 

requested for the first time in a reply brief, is ordinarily denied 

as a matter of course."); Bernardo ex rel. M & K Eng'g, Inc. v. 

Johnson, 814 F.3d 481, 492 n.17 (1st Cir. 2016) (noting that 

contentions "raised [] for the first time at oral argument . . . 

[are] waived"), he has waived it for lack of development on appeal. 

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) 

("[I]ssues adverted to in a perfunctory manner, unaccompanied by 

some effort at developed argumentation, are deemed waived."). 

III. 

The District Court's judgment is affirmed.