Warren E. Burger: We'll hear arguments next in Minnesota State Board against Knight. Mr. Miller, I think you may proceed whenever you are ready.
Eric R. Miller: Mr. Chief Justice, and may it please the Court: I wish to remind the Court in this consolidated action that there are two Appellant groups, the first consisting of the labor organization, and the second consisting of state officials. We have agreed upon a single speaker to avoid fragmentation of our presentation. We do submit to the Court that the state officials and the labor organizations have both common interests as well as unique interests which justify this Court in reversing the lower court.
Byron R. White: Which case are you from or in?
Eric R. Miller: Your Honor, the clients that I represented in the action below were the defendant labor organizations.
Byron R. White: Thank you.
Eric R. Miller: The primary issue in this case is whether or not a state public employee bargaining law violates either the First or the Fourteenth Amendments where it requires a public employer to meet and confer only with an exclusive representative and that exclusive representative uses only its members as apart of the meet and confer meeting. In the alternative, should this Court affirm the lower court, the second issue is if every public employee is entitled to run and vote in elections for membership on the meet and confer committees, do the First and Fourteenth Amendments require that a system of cumulative voting be utilized in those elections. The fundamental facts in the case are neither extensive nor in dispute. The Plaintiffs are individual faculty members employed on several of the campuses of the 18-campus system in the Minnesota Community College system. These individual faculty member Plaintiffs are opposed to having the defendant labor organizations represent them concerning their employment interests. The defendant labor organizations consist of the Minnesota Community College Faculty Association, the MCCFA, which is a voluntary association of faculty members within the Community College system. It is the legally certified exclusive representative for all of the faculty members within the Community College system. Its primary purpose is to represent the employment interest of all of the faculty members. The Minnesota Education Association is a state-wide voluntary association of educators which is the state affiliate for the MCCFA. The National Education Association is a voluntary association of educators which is the national affiliate of the MCCFA and the MEA. The Community College Board is a state agency of Minnesota charged with the management of the Community College system. It is the employer of the faculty members involved in this action. Our Public Employment Labor Relations Act in Minnesota was passed in 1971. It is a comprehensive system for labor relations for public employers and public employees. Its stated policies of PELRA are to promote orderly and constructive relationships between public employers and public employees; that unresolved disputes between employers and employees are injurious to both the parties as well as the public. The policy section further specifically indicates that one of the policies is to grant the employees the right to organize and choose freely their representatives. PELRA specifically provides for a democratic selection of those representatives in the form that an election may take place every two years to determine who the exclusive representative for the faculty members in this particular bargaining unit shall be. The fundamental framework of PELRA to achieve these policies is the use of the concept of exclusive representation of employees. All exclusive representatives under PELRA are obligated to meet and negotiate, that is collectively bargain the terms and conditions of employment. Those terms and conditions of employment are defined expressly in PELRA as being the hours of employment, compensation, and the personnel policies affecting the working conditions of the employees. PELRA specifically indicates that there are subjects which are not to be subjected to the collective bargaining process. That, in our state statute, is referred to as inherent managerial policy. Those are areas of discretion in policy such as the overall budget, the organizational structure of the employer, and the selection and direction of personnel. Thus, there are two major arenas of activity for an exclusive representative; that is negotiable areas and non-negotiable areas, and specifically as to professional employees in Minnesota the exclusive representative is charged to meet and confer with the public employer concerning areas within the inherent management discretion area. This is a right that is not extended to other public employees other than professional public employees in Minnesota.
Byron R. White: Does the employer have to meet with them?
Eric R. Miller: The statute requires that it meet at a minimum every four months with the representative of the professional employees for meet and confer.
Byron R. White: Could the employer meet with somebody else too?
Eric R. Miller: The employer could meet--
Byron R. White: Separately?
Eric R. Miller: --Yes. And, in fact, in this case, the employer has met regularly with both the individual Plaintiffs as well as other faculty members.
Byron R. White: Could he have them in the same meeting with... Could he have them at the same meeting when he meets with the exclusive representative?
Eric R. Miller: I think they could and that has taken place. The record will indicate that in this case.
William H. Rehnquist: This statute is really about the legislature of Minnesota directing its agents whom to meet with, isn't it?
Eric R. Miller: That is correct. This is a statutorily created right. That is the right of meet and confer.
Byron R. White: It requires them to meet with one group and its option with another, I suppose.
Eric R. Miller: It is optional with another group. There is, very frankly, Justice White, the question of whether or not the employer possibly committing an unfair labor practice in doing that. We do not believe though that that raises a constitutional questions as I will explain in a moment.
Byron R. White: You mean it is... I thought you said under the state law, if the employer chose to meet with other groups, he could without violating any state law.
Eric R. Miller: The purpose of meet and confer, we believe, is private consultation not only to permit employees to freely express their views, which, of course, is their First Amendment right, and has been confirmed in this record as well as under PELRA. Meet and confer obligates the employer to listen and respond--
Byron R. White: To the exclusive representative under--
Eric R. Miller: --Yes, sir.
Byron R. White: --Now, may he meet and listen to others besides the exclusive representative?
Eric R. Miller: Yes.
Byron R. White: And he wouldn't be committing an unfair labor practice.
Eric R. Miller: Your Honor, I think there could be a question--
Byron R. White: Under state law.
Eric R. Miller: --Under state law as to at what point an employer meeting and conferring with someone else other than the exclusive representative may be violating--
Byron R. White: That is what I was asking you awhile ago. Now, what is your answer to the question. Is he in violation of the state law if he meets with other people or not?
Eric R. Miller: --I believe the answer is going to be dependent on whether or not that employer, in fact, is exchanging views and holding private consultation as opposed to simply receiving the views of individual employees.
William J. Brennan, Jr.: Well, is there a difference in subject matter between bargaining issues and meet and confer issues?
Eric R. Miller: Most definitely.
William J. Brennan, Jr.: Does the statute define them?
Eric R. Miller: The statute defines that.
William J. Brennan, Jr.: Well, what is the difference between the two?
Eric R. Miller: That is a line drawn by the legislature.
William J. Brennan, Jr.: What is the line the legislature has drawn?
Eric R. Miller: The line that the legislature has drawn is that matters of inherent management policy shall not be subject to meet and negotiate.
William J. Brennan, Jr.: Has that term been defined by your courts?
Eric R. Miller: Yes, it is.
William J. Brennan, Jr.: What is the definition?
Eric R. Miller: Not unlike the problems in the private sector, it is a gray and moving line. Part of it depends on whether or not the employer wants to collectively bargain about that subject even though it may be a matter of inherent management right and make it a permissive subject. And, we have cited several decisions in our brief that indicate how that definition of a meet and negotiate subject is evolving in our state. There is no bright, clear line. The point that I want to make in response to your inquiry, Justice White, is that that line does not connotate, as the lower court did, some type of constitutional right, because it is a line that is drawn--
Byron R. White: I think it certainly affects the way I look at the case as to whether or not, under state law, anybody but the... that the employer would violate state law if he meets on meet and confer issues with anybody but the exclusive representative.
Eric R. Miller: --I believe the employer can, either at a public meeting or as indicated in this record in sessions held on campus--
Byron R. White: Say he does... Say he meets with a group other than the exclusive representative and he goes through exactly the same routine as he does with the exclusive representative, and if you say he must just listen, then he just listens. Now, if that is all he does, he is all right under state law?
Eric R. Miller: --I believe so.
Lewis F. Powell, Jr.: But, I understood from what you said earlier that the Board could make no response on any proposals that were suggested by the non-union meet and confer group.
Eric R. Miller: Again, I think the Board can make a response, but the question, I believe, Your Honor, is not whether or not that causes some constitutional infringement, but whether or not it is an unfair labor practice.
Lewis F. Powell, Jr.: Apart from the constitutional issue, I think the factual question that I understood Justice White was making inquiry about, is what actually happens? What sort of utility would be... What purpose would be served by such a meeting if all the Board sat there mum while people presented ideas and there was no discussion, no suggestions, no advice? Would that serve any purpose?
Eric R. Miller: The purpose of the statute is to obtain the majority view of the faculty in an orderly and constructive fashion.
Lewis F. Powell, Jr.: But, that would come form the exclusive representative.
Eric R. Miller: Yes, indeed, it would.
Byron R. White: Yes. Well, let's put it this way. Suppose the employer meets with a group other than the exclusive representative. Can't he do with that group on meet and confer issues precisely what he could do with the exclusive representative?
Eric R. Miller: Yes. It may freely participate in dialogue--
Byron R. White: Whatever kind of a dialogue the statute contemplates on meet and confer issues between the exclusive representative and the employer, the employer can engage in with others. It is exactly the same procedure. That is not what I understood you to say earlier. You changed your-- --I agree.
Eric R. Miller: --Your Honor--
John Paul Stevens: I think before it would be an unfair labor practice or arguably it would be an unfair labor practice.
Eric R. Miller: --The question is hinged on the fact that the exclusive representative has by statute, being the majority representative, the opportunity to present the majority view. In our view, there is nothing to restrict the employer from receiving the views of other employees as well.
Thurgood Marshall: Even on matters in the contract. Oh, no.
Eric R. Miller: I am sorry?
Thurgood Marshall: You mean on matters that are not covered by the contract, don't you?
Eric R. Miller: Yes. That is what meet and confer involves only.
Thurgood Marshall: That goes for all of this. Yes, but you just again confined your answer to receiving the views. You are very evasive on whether they can respond or not. I really don't know your position. May the representatives of the governing body respond to non-union people at a separate meet and confer in your view?
Eric R. Miller: I believe they can respond, Your Honor.
John Paul Stevens: Without committing an unfair labor practice?
Eric R. Miller: I believe there could be a question of whether or not--
Byron R. White: May the employer respond to the exclusive representative in a meet and confer meeting?
Eric R. Miller: --That is the purpose.
Byron R. White: I mean the employer to respond?
Eric R. Miller: Yes.
Byron R. White: Well, I thought you told me awhile ago that he could... The employer could go through exactly the same routine with a non-exclusive representative group as he could with the exclusive representative.
Eric R. Miller: The statute indicates that individual employees have the right to express their views so long as it does not circumvent the rights of the exclusive representative. That right is the opportunity to meet and confer, private consultation, in regard to inherent management rights.
Byron R. White: Why would it interfere with your rights to present your views on management issues?
Eric R. Miller: It does not, Your Honor. The presentation--
Byron R. White: For the employer to have a meeting and listen to somebody else.
Eric R. Miller: --The presentation of those views constitutes no problem. I am sorry for any confusion on that issue.
John Paul Stevens: You still don't tell us very much about responding to the presentation. That presents the problem. Can they negotiate?
Eric R. Miller: The answer is no. There may not be any negotiation, just as there cannot be any negotiation by a non-certified representative in collective bargaining, meet and negotiate.
John Paul Stevens: Arguably there may be no response.
Eric R. Miller: Under meet and negotiate--
John Paul Stevens: No, under meet and confer.
Eric R. Miller: --the employer cannot--
John Paul Stevens: Under meet and confer your view is that arguably there can be no response to a non-union presentation of views.
Eric R. Miller: --Yes.
William H. Rehnquist: But, isn't that also true of a meet and confer presentation by the certified representative? That isn't a negotiating session.
Eric R. Miller: It is not.
William H. Rehnquist: So, is there much difference in the kind of response that an employer would give to two different meet and confer sessions, one with minority or representatives of the other with the certified representative?
Eric R. Miller: No. In fact, Justice Rehnquist, the employer may decide to simply receive the views of the exclusive representative without discussing them with the exclusive representative, because, again, the employer has the final decision-making power concerning those non-negotiable matters. Those are matters of policy which they are not required or compelled to come to any agreement upon.
Warren E. Burger: What you are saying... Let's see if I can get it clear for myself. The employer can listen to anyone.
Eric R. Miller: Yes.
Warren E. Burger: And, he can do it informally or formally?
Eric R. Miller: Yes.
Warren E. Burger: And, he can mix the two groups up and listen to both of them at once?
Eric R. Miller: I think that witnesses may certainly attend a formal meet and confer session, but the purpose of the statute, just as the purpose of exclusivity in collective bargaining, is to permit in an orderly, coherent fashion for the employer to receive the views of the majority representative. To permit minority, dissident members at a formal meet and confer session to present their views at the same time in contrast with the views of the majority would very well disrupt that orderly process just as it would if the dissident minority members were permitted to be present at a private bargaining session and indicate disagreement with the exclusive representative concerning its position on what the terms and conditions ought to be.
Warren E. Burger: Well, do these dissidents, to identify them in quotation marks, do they have the same status and posture at this joint meeting as the ones you regard as the official representatives?
Eric R. Miller: If it is intended to be one of the once every-four-month meetings, the answer is, no, they do not have the same status. The exclusive representative in this case, the MCCFA, has been democratically selected as the representative of the faculty. For purposes of that meet and confer meeting, the employer has established that it wishes to hear the views only in that particular mode of the exclusive representative. It does not restrict that employer, in a subsequent meeting immediately after a meet and confer meeting, then in receiving the views of all other employees concerning any matter.
Lewis F. Powell, Jr.: Has there ever been such a meeting, a subsequent meeting, some ad hoc group?
Eric R. Miller: Yes. The record is replete that the Community College Board, the Chancellor, who is the Chief Executive Officer, the local presidents and other administrators have regularly held town forums for the purpose of obtaining the views of all other employees on all matters that are included under meet and confer.
Lewis F. Powell, Jr.: But, suppose half a dozen faculty members were designated as a committee representing the 18 non-union faculty members who are involved in this case as I understand it and requested the opportunity on specified dates regularly to present their views to the Board at a formal meeting of the Board. What would the consequence of that request?
Eric R. Miller: None whatsoever. They are certainly entitled to do that.
Lewis F. Powell, Jr.: Is there any authorities to support that interpretation of your law?
Eric R. Miller: In terms of their ability to do that?
Lewis F. Powell, Jr.: Yes.
Eric R. Miller: I would believe that the decision of this Court in City of Madison would directly support that, a meeting called for the purpose of obtaining the input of either the faculty or the public at large, that they would be guaranteed their First Amendment freedom of expressing their views concerning all subjects under meet and confer.
Byron R. White: The employer wouldn't have to meet with them?
Eric R. Miller: If it calls a public meeting, Your Honor, I think it certainly would.
Byron R. White: Yes, if it called a public meeting, but the difference here is that the law requires the employer to meet with the exclusive representative--
Eric R. Miller: That is correct.
Byron R. White: --and doesn't require them to meet at all with anybody else.
Eric R. Miller: It is exactly right. The First Amendment does not require, and this Court has so held, a public employer to meet and negotiate, meet and respond with any public employee. The converse of that is that a public employer, therefore, is free to privately consult with whomever they choose. In this case, the legislature in Minnesota has decided that the employer shall meet and confer in private consultation with the designated exclusive representatives of the professional employees.
John Paul Stevens: Is even that quite right? Does the statutory provision dealing with meet and confer expressly refer to the exclusive bargaining agent? Could it not be consistent with the statute for the majority for meet and confer purposes to elect someone else?
Eric R. Miller: No, I don't believe so, Your Honor. The statute provides that the professional employees shall select a representative.
John Paul Stevens: Right. But, does it have to be the same representative that represents them for the other purpose?
Eric R. Miller: Yes. Another portion of the statute specifically provides that the employer shall not meet and negotiate or meet and confer with any employee or group of employees other than the exclusive representative if one has been certified. That is 179.66, Subdivision 7.
Byron R. White: Well, that sounds to me like he is forbidden to meet with anybody but the exclusive representative.
Eric R. Miller: He is... The employer is forbidden to meet and confer which means private consultation. It can be an unfair labor practice. That is the distinction we have been trying to draw. No First... The difference does not go off on any First Amendment right, because no individual employee or group of employees has the right to compel government to meet and discuss and respond to any subject. And, the state has created that right for exclusive representatives just as it has for exclusive representatives in meet and negotiate. The statutory plan very simply is that all professional employees may elect in a democratic procedure any exclusive representative. The statute specifically provides that the employer shall not meet and negotiate or meet and confer with anyone, any employee or group of employees other than the designated exclusive representative if there be one. If there not be one, the answer to Justice Stevens' question is the professional employees would be free to select a representative, but if there is an exclusive representative, the employer must meet and confer.
John Paul Stevens: But, as I understand it, the minority or non-union people can only communicate when such a communication is a part of the employee's work assignment.
Eric R. Miller: No, that I don't believe--
John Paul Stevens: What does that mean that is in Subdivision 7?
Eric R. Miller: --That is an amendment to the statute which I believe is designed to protect the employer that it will not be committing an unfair labor practice to receive the views of an individual employee concerning matters that are part of their work assignment.
John Paul Stevens: That employee's work assignment?
Eric R. Miller: Yes.
John Paul Stevens: But, if he just didn't think the tuition was right in the school, he couldn't talk about that.
Eric R. Miller: I think he certainly can.
John Paul Stevens: Well--
Eric R. Miller: As a matter of First Amendment freedom.
John Paul Stevens: --But, certainly the statute implies that he may not. Maybe the statute is invalid to that extent of course.
Eric R. Miller: I don't believe that the statute should be interpreted that way. There is another portion of PELRA, Justice Stevens, 179.65, Subdivision 1, which guarantees every individual employee the right of free expression or opinion so long as it does not circumvent the right of the exclusive representative.
John Paul Stevens: So long as it doesn't interfere with the full, faithful, and proper performance and so forth--
Eric R. Miller: Yes.
John Paul Stevens: --of the exclusive representative.
Eric R. Miller: I believe that there--
John Paul Stevens: Of course, the exclusive representative might think some of this dissident activity interferes with his exclusive privileges.
Eric R. Miller: --It might, but that has never taken place as far as I know in the State of Minnesota and certainly not on behalf of the Minnesota Community College Faculty Association.
William H. Rehnquist: Does this reference you recently made to the statutory section prohibiting the employer from meeting and conferring with anybody except the exclusive bargaining agent lead you to qualify any of your earlier answers about what the employer could do with respect to meetings with people other than the certified bargaining representative?
Eric R. Miller: No, I don't believe so, Your Honor.
Byron R. White: I just don't understand-- --I can't figure it out. I can't either. It seems to me you have given answers at 360 degrees.
Eric R. Miller: Well, I am certainly not trying to, Your Honor.
William H. Rehnquist: I know you are not.
Eric R. Miller: Let me try my hand one more time. The principle of exclusive representation has been decreed in Minnesota to permit professional employees to be able to not only meet and negotiate but also to meet and confer. That meet and confer means the exchange of views and concerns. The purpose is to obtain the majority view of the majority representatives.
Warren E. Burger: About what subject matters?
Eric R. Miller: Inherent management policy, matters that are not in collective bargaining. However, that line, as I tried to indicate before, is a gray and uncertain one. An example: In the collective bargaining contract, class size, which has been negotiated, is said that it must be reasonable. However, the actual class sizes are determined through the meet and confer process on the individual campuses as to how large the classes shall be. If an administration wants to change the class size, it must do it through advance notice and meet and confer. If there is a violation of the class size that has been determined through meet and confer, it is grievable under the contract. There is a very close interrelationship between... for professional employees... between those subjects that are in meet and confer and those subjects that are meet and negotiate which is to say that those subjects may cross the line, depending on the wishes of the party or the will of the legislature, because the legislature could decree that there are no inherent management subjects and everything would come in under collective bargaining. There would be no private right of meet and confer.
Thurgood Marshall: The administrator would have a terrible job trying to know which hat he has on, wouldn't he?
Eric R. Miller: It might very well.
Thurgood Marshall: Practically daily, wouldn't it?
Eric R. Miller: Well, only with the exclusive representative as to whether or not it is obligated to meet and negotiate concerning a certain subject or whether it is an inherent management policy right that is not subject to the collective bargaining obligations.
Thurgood Marshall: Well, could you tell me the difference between meet and confer and negotiate?
Eric R. Miller: Meet and negotiate are those subjects which relate to the terms and conditions of employment.
Thurgood Marshall: I am talking about the actual... what goes on.
Eric R. Miller: Meet and negotiate involves negotiating a salary schedule, negotiating a vacation.
Thurgood Marshall: When you meet and confer you are not negotiating?
Eric R. Miller: That is correct, Your Honor, because--
Thurgood Marshall: You are not?
Eric R. Miller: --No, you are not. The subjects of meet and confer are reserved to the total discretion of the public employer. After having met and conferred over those subjects which are properly in meet and confer--
Thurgood Marshall: Once you decide that the subject is meet and confer or this is the subject of negotiating, you do the same thing?
Eric R. Miller: --Yes, Your Honor, meeting with the exclusive representative.
Thurgood Marshall: Now I am lost.
Eric R. Miller: Maybe we can try one more approach.
Thurgood Marshall: Good.
Eric R. Miller: And that is the question of budget. The statute specifically says that a public employer's budget is not subject to meet and negotiate; that is no employee organization may attempt to negotiate over what the size of the budget shall be or how the budget shall be broken down. However, quite obviously, when it comes to negotiating a salary schedule, how much of the budget that will go toward the salary schedule is clearly a subject of meet and negotiate. In Minnesota, the subject of budget has regularly been involved in meet and confer with the exclusive representative to permit the majority representative to indicate to the employer its views concerning the size of the budget and the utilization of the budget, but that process is not binding on the employer once the employer has met and conferred with the exclusive representative.
John Paul Stevens: Do I correctly read Subparagraph 7 to say that on a subject such as the budget the employer shall not meet and confer with anyone except the union?
Eric R. Miller: That is true.
John Paul Stevens: So they can't talk to a dissident group about the budget?
Eric R. Miller: They cannot--
John Paul Stevens: The cannot have a meet and confer session with the dissident group about the budget?
Eric R. Miller: --Exactly, Your Honor. They certainly may--
John Paul Stevens: What is the state interest that is served by that prohibition?
Eric R. Miller: --The state interest is the same as it is for exclusive representation and meet and negotiation. That is to permit the employer to have the majority view, to eliminate conflicting demands by various groups of employees upon the employer, to eliminate the tension between employees and--
John Paul Stevens: None of which are bargainable subjects?
Eric R. Miller: --Pardon me?
John Paul Stevens: None of which are proper subjects for mandatory collective bargaining?
Eric R. Miller: Yes. The State of Minnesota has determined as a matter of policy for professional employees that it wants to have the view of the exclusive representative concerning those non-negotiable subjects.
Lewis F. Powell, Jr.: Is it a matter of state interest not to have divergent views on the policy type issues that you have been mentioning?
Eric R. Miller: I don't think that the State of Minnesota is trying to eliminate divergent views.
Lewis F. Powell, Jr.: But, is it contrary to state policy to have divergent views?
Eric R. Miller: It is not.
William H. Rehnquist: Well, it could be pretty dreary for some of the administrators if they had to sit up there and listen to not only all the gripes of the collective bargaining representative, but all the individual gripes of everybody, you know, ad nauseam.
Eric R. Miller: In terms of being able to have an orderly constructive session, yes, but I understood the Justice's question to be whether or not the state was opposed to divergent views as a conceptual matter.
John Paul Stevens: By statute it prohibits the expression of them in similar meetings, as I understand it, so it clearly opposes it. Surely it does. Statutory prohibition against expression of divergent views in comparable meetings.
Eric R. Miller: In a comparable meeting.
John Paul Stevens: So, the state policy is we want to hear one voice on the budget, not two voices.
Eric R. Miller: They want to hear the majority view on the state budget in a meet and confer session, that is true.
John Paul Stevens: And nobody else.
Eric R. Miller: In that session that is right.
John Paul Stevens: Or in a comparable session either, in that session or any one patterned after it.
Eric R. Miller: I want to make myself hopefully, finally, and forever very clear. An individual faculty member has the First Amendment right if the individual administrator is willing... has the time, not because of PELRA... to hear out that individual faculty member concerning his views on the budget.
Byron R. White: You are just saying that the state statute then is unconstitutional. That is right. Because it prevents precisely what you just said the First Amendment guarantees.
Eric R. Miller: The First Amendment does not guarantee that an employer shall listen and respond. The state statute here does provide that same level of responsibility just as it does for meet and negotiate for exclusive representatives.
Warren E. Burger: Mr. Vieira?
Edwin Vieira, Jr.: Mr. Chief Justice, and may it please the Court: I hope that Your Honors will indulge me for a moment if I admit that, having heard Mr. Miller's presentation, I am somewhat perplexed about what this litigation has involved over the past several years. He know takes the position that no one is being preventing from speaking, no one is being prevented from listening, everything in Minnesota is perfectly free and open. That is not the reading of the statute that the District Court obtained. The definition of meet and confer in Section 179.63, Subdivision 15, is, and I quote, "the exchange of views and concerns between employers and their respective employees. " rather a broad concept. The obligation of public employers in Section 179.66, Subdivision 3, is the obligation to meet and confer with professional employees to discuss policies and those matters relating to employment not included under Subsection 18 of 179.63. That is the matters of inherent managerial policy. Section 179.66, Subdivision 7, then tells the public employer that if an exclusive representative has been selected, the public employer shall not meet with any person or representative other than the exclusive representative; that is the statute creates an expansive definition of meet and confer as the exchange of views, obligates the public employer to meet with public employees to discuss this broad subject matter.
William H. Rehnquist: Well, Mr. Vieira, you speak as though the public employer and the Minnesota legislature were two different entities. I don't see this case as any different than if each of these public employers, each of these presidents of Bemidji Junior College or whatever it might be, decided on their own to do exactly what the statute said. They are all creatures of the state and when the state tells them to do something, they do it.
Edwin Vieira, Jr.: That is right, sir. I believe if they decided on their own to set up a policy in terms of regulation or a practice in these particular community colleges, we would have the same First Amendment and Fourteenth Amendment problems.
William H. Rehnquist: It doesn't remove the First Amendment analysis at all, but I just question your... Perhaps I drew the wrong implication from what you are saying as if these administrators would somehow complain about, the administrators rather than the faculty members could complain about being imposed upon by the state.
Edwin Vieira, Jr.: No, sir. I think it is clear that the legislature is creating a system involving the administrators which is intended, or at least has been applied... let me not say intended, because I believe there is a way this statute could have been applied constitutionally if the Board and the MCCFA had chosen to do so. But, this statute has enabled them to apply the meet and confer process in a systematically discriminatory fashion against all non-members of the MCCFA for--
Sandra Day O'Connor: Mr. Vieira, if there had been no statute at all and you had a school board administrator who simply decided that he was willing to confer with a single faculty member whom he liked and admired and he wasn't going to talk to anybody else on matters relating to the subject of the meet and confer law and just chose to talk to that individual. Is that a First Amendment violation of the rights of any other faculty member with whom the administrator does not choose to confer?
Edwin Vieira, Jr.: --As a matter purely of his personal interest in the views of this individual or seeking the views of this individual for the purpose of somehow effecting or influencing the exercise of his official powers?
Sandra Day O'Connor: Influencing policy.
Edwin Vieira, Jr.: Oh, yes, absolutely. Absolutely. I think once he opens up the process of conferring to any one of those faculty members, he has an obligation, unless he can come up with at least a rationale distinction among them for opening it up to all of them.
William H. Rehnquist: What case supports that argument? You are talking about the First Amendment I take it.
Edwin Vieira, Jr.: Well, I am talking about the equal protection clause. That is at a minimum we have a case where there is discrimination as Justice O'Connor has suggested. Some faculty members are not allowed to discuss in an attempt to influence the public employer's exercise of his duties and this one particular--
Sandra Day O'Connor: They can attempt but he won't listen. There is no case-- --They think there is a constitutional right that the administrator has to listen, is that right? What case is it?
Edwin Vieira, Jr.: --Well, I suppose it depends upon how you define listen. If we go back to the Pickering line of cases, it has certainly been held that a public employee has the right to speak provided that that speech does not substantially interfere with the exercise of his own obligations and the exercise of the--
William H. Rehnquist: But no case has ever held the employer has to listen. Those are two entirely propositions.
Edwin Vieira, Jr.: --No, but in this particular case, the statute has told the employer that the employer has to listen. The statute has first said in 179.73 that the State of Minnesota wants input from all of its professional employees to the employers for the purpose of aiding those employers in performing their functions.
William H. Rehnquist: And, it says that it will happen in a particular manner through the collective bargaining agent.
Edwin Vieira, Jr.: Then we come to the question as whether that discrimination attached as an ex post facto condition to the grant of this right--
William H. Rehnquist: What are you talking about, an ex post facto condition in a civil case? For the... The ex post facto clause applies only to criminal cases.
Edwin Vieira, Jr.: --I wasn't using it in that sense. I was using it in after the fact, in sense of the logical construction of this statute was first to set up the concept of meet and confer as the desideratrum of the legislature and then to come on afterwards and say if an exclusive representative has been selected, that representative will be the meet and confer representative, because you will notice the statute says if an exclusive representative has not been selected, nevertheless, meet and confer will go forward through some representational process not involving--
Byron R. White: What is the discrimination you are talking about?
Edwin Vieira, Jr.: --Well, the discrimination in this case, as the statute has been applied, is that the only individuals among the faculty members of the community colleges who have been permitted to participate in any manner whatsoever in the selection of meet and confer committees or serving on the meet and confer committees have been members of the MCCFA.
Byron R. White: Well, I know, but that... I would suppose you would still be attacking the statute on the same grounds if the meet and confer committees had included non-union members as well. If that is the discrimination you are talking about, that is certainly different than saying that only a certain group of employees may talk to the employer. After all, the people the statute says the employer must meet with are the elected representatives, are the exclusive representatives. They are then not just faculty members, they have been elected as exclusive representatives and they represent everybody in the bargaining unit, don't they?
Edwin Vieira, Jr.: That is correct.
Byron R. White: So, how is it discriminatory at all?
Edwin Vieira, Jr.: Well, the question here is whether or not we have a policy justification for limiting the individuals who can actually participate in the meet and confer session.
Byron R. White: Under the statute, how do you... Who goes to the meet and confer meetings now the way they are run?
Edwin Vieira, Jr.: The way they were run.
Byron R. White: The way... Who goes to the... Yes, the way they were run, the way that you objected to.
Edwin Vieira, Jr.: The MCCFA selected through some internal procedure on the various campuses the individuals who would participate in the campus meet and confer committees.
Byron R. White: I thought you say the employer couldn't meet with anybody except the exclusive representative.
Edwin Vieira, Jr.: Well, it designates these people as its representatives.
Byron R. White: Those are people other than the exclusive representative, aren't they?
Edwin Vieira, Jr.: That is not the way the Act is applied in Minnesota, no. Of course, the exclusive representative is a non-human entity. It has to have--
Byron R. White: The exclusive representative could... Suppose they chose 15 people, half of them non-union and half of them union. That would not violate the statute, I suppose.
Edwin Vieira, Jr.: --Well, there is certainly a possibility whereby this statute could be applied through the exclusive representative. Again we go back to the language of the statute. Public employers shall not meet and confer with public employees except through the exclusive representative. It doesn't say only with the exclusive representative. They could have applied this statute originally so as to allow all of the faculty members to participate in the selection of the members of the meet and confer committees. In fact, prior--
Sandra Day O'Connor: Well, they now do, is that right?
Edwin Vieira, Jr.: --Excuse me, ma'am.
Sandra Day O'Connor: Now non-members can vote for the representative.
Edwin Vieira, Jr.: Under the District Court's orders non-members are allowed to participate in the voting process and they are allowed to stand for election.
William H. Rehnquist: But your adversaries challenge that on appeal, don't they?
Edwin Vieira, Jr.: Oh, yes, sir, they definitely challenge that remedy. There is no question about it. Historically, if one goes back, as the District Court recites in its findings and its opinion, you had a faculty government system in these Minnesota community colleges prior to the application of PELRA's meet and confer structure and that faculty government system involved all of the members of the faculty equally participating in voting, all having an equal opportunity at least to set themselves forward as candidates. This statute, if we can look at it in a practical sense, really in the academic context codified that system. These professional employees are now going to have a statutory mechanism for meeting and conferring with their employers. We have the same thing they did prior to the Public Employment Relations Act, discussing academic standards, academic policies, the question of inherent managerial duties. But, the statute added a new wrinkle and the new wrinkle was that this advantageous condition, the election of an exclusive representative for the purpose of meet and negotiate was now going to, as it has been applied at least, block off from participating in faculty governments one distinct class of faculty members.
William H. Rehnquist: Mr. Vieira, I wonder if the state wasn't operating on a premise that deserves a little more recognition than I think you give it. It is one thing to have a faculty senate get together and pass a bunch of resolutions, but I remember the remark of a colleague of mine in a former employment who had been a member of a law faculty. He said that the only thing worse than the meetings of the law faculty were the meetings of a full faculty, that the meetings of a full faculty simply never ended. If you are talking about a meeting of people to get together and pass a resolution when everyone there is voluntarily present it is one thing, but to require the administrators to sit and attend something, I think the state has a right to say you channel it, you don't have to listen to every single individual. Now, that is not interfering with the right of petition, but it is just the idea of the administrator being on the scene and kind of reacting. He can't be there for five or six days.
Edwin Vieira, Jr.: Well, we are making no argument that is inconsistent with that view, Justice Rehnquist. We are not attacking the structure of meet and confer in the sense that it sets up a regularized procedure whereby individuals are chosen to serve on these committees. We are saying that is fine. If the state wants to have such a regularized procedure, that is excellent, but at least have all of the professional employees in the relevant unit allowed to participate in the selection of those representatives and allowed to stand for election. The Board in this case will meet with the same number of meet and confer committees as were extant prior to the District Court's order. On the particular individual community college campuses, the same meet and confer committees will function. The only difference will be the composition within those committees. From the Board's point of view, it makes absolutely no difference. They are running the system precisely the way it has always been run. They are following the same orderly regularized procedure. From MCCFA's position, it makes a great deal of difference because now people will have a different perspective on academic questions, now people whom the Chief Justice perhaps correctly called dissidents in the sense that they dissent from MCCFA's policies, now those individuals will have some small voice in the official mechanism of communication to their employers. And that is what is at the heart of this case.
William H. Rehnquist: So, you are not saying then that every faculty member has a right to be present and speak at this meet and confer session? You are only saying that they should have a right to cast a vote for the election of the representative who is there and--
Edwin Vieira, Jr.: Absolutely and to stand personally for election if they can receive sufficient votes. That is what we asked the District Court to declare and that is what the District Court--
Byron R. White: --You wouldn't be satisfied if the employer said, well, you people who are disaffected or who are non-union members, I will meet with your representatives too separately. You go ahead and get together and elect me a half a dozen people and the next day after I meet with the exclusive representative I will meet with your representatives.
Edwin Vieira, Jr.: --I think that is an unfair labor practice. I think the statute precludes that. I think the employer is under a duty not to do that.
Byron R. White: I know, but suppose the statute were declared unconstitutional in its present form and instead of having an election like the District Court, it said the employer should meet with the representatives of the minority. Would that satisfy you?
Edwin Vieira, Jr.: Well, Your Honor, it might very well satisfy me, but I don't know how this Court or the District Court would rewrite--
Byron R. White: I am only asking you. The District Court rewrote it at your behest considerably I must say.
Edwin Vieira, Jr.: --I think it simply struck the exclusive representative's prerogative--
Byron R. White: You mean that whole voting system is just simply striking something?
Edwin Vieira, Jr.: --Well, initially... Recall initially all the District Court said was that the MCCFA had to hold a selection process whereby all the faculty members could participate equally. It was only when the MCCFA and the Board developed their so-called vote-for-six rule which required an individual, if he was voting for one of the dissidents, also to vote for some of the union members. The Court took a second look at this and said, well--
Byron R. White: And rewrote the statute a little more.
Edwin Vieira, Jr.: --Excuse me?
Byron R. White: And rewrote the statute a little more.
Edwin Vieira, Jr.: Well, I think they created a remedy that maybe somewhat extraordinary in the sense that we can't find a direct precedent for it, but it derives from the conduct that had to be dealt with.
Byron R. White: What if it derived a remedy, not in that form but in the form of saying that the employer shall meet with the committee representing the minority?
Edwin Vieira, Jr.: Well, we are perfectly willing to accept the proposition that the employer would be burdened to the extent that he has to meet or it has to meet with more than one committee.
Byron R. White: Well, would you be litigating then if he agreed to do that?
Edwin Vieira, Jr.: If he had agreed originally?
Byron R. White: No, if he agreed right now to meet separately with your representatives rather than--
Edwin Vieira, Jr.: In the full meet and confer sense?
Byron R. White: --No, no, no, separately.
Edwin Vieira, Jr.: What I mean is meet and confer is this process whereby the employer treats this input as something more than simply advantageous statements from a friendly faculty member, but as a view of a group with some recognition.
Byron R. White: Sure.
Edwin Vieira, Jr.: And, if he meet with these people--
Warren E. Burger: And on matters that are that are not wages, hours, and working conditions, the usual collective bargaining process.
Edwin Vieira, Jr.: --Yes, sir, on inherent managerial questions.
Harry A. Blackmun: Mr. Vieira, are you basically satisfied with the order of the District Court?
Edwin Vieira, Jr.: I think the order of the District Court remedies the meet and confer problem that we had which was the inability of the non-union members to participate in any meaningful... in any way whatsoever in the process. I can live with it. I can accept. They can accept. I am certainly not here asking that one go beyond that. I would just point out one thing with respect to Mr. Miller's emphasis on the fundamentality of this exclusivity principle here. The purpose of this statute, as stated in 179.73, is not to obtain simply a majority view. It is to obtain the view of all of the professional employees. I think this is particularly critical in an academic setting where it is quite clear that most faculty members are chosen for their complementary to the whole, each one fulfilling hopefully an unique nitch in the system. It really is not terribly rational to superimpose on that type of a system some majoritarian theory of representation. And, that is why the District Court, and I believe correctly, emphasized the academic freedom nature of the communications and issues that are involved in this case. We are not, as the Chief Justice, I believe, correctly emphasized, dealing with wages, hours, and those other terms and conditions of employment that fall within the meet and negotiate category, those more or less fungible or in some sense or other hopefully objective questions. The District Court pointed out, again I believe correctly, that in the area of meet and confer you are dealing with intangible questions inherently and when you are dealing in an academic setting you are dealing with questions that involve rather personal interactions.
Byron R. White: Let's just assume that the meet and negotiate provisions are valid and that the employer may be required to negotiate only with the exclusive representative and that he is forbidden to meet with anybody else and negotiate on those things. Now, if that is a valid situation scheme, why isn't this one?
Edwin Vieira, Jr.: Well, I think there are a number of reasons. The first one is the subject matter of these two areas is completely different.
Byron R. White: I would think you would think the meet and negotiate subject matter would be far more important to you than the other.
Edwin Vieira, Jr.: Well, we do. We appealed that question.
Byron R. White: Well, you lost it.
Edwin Vieira, Jr.: Well, it wasn't argued. We didn't brief it. But, the subject matter is--
Byron R. White: I just say assume that we had taken that case and affirmed it. Say we just affirmed, that that was a completely constitutional scheme on meet and negotiate items to exclude anybody but the exclusive representative.
Edwin Vieira, Jr.: --Well, of course--
Byron R. White: Why wouldn't that govern this case?
Edwin Vieira, Jr.: --Because for two reasons. First, the subject matter is different. This Court is the source of the distinction in First Amendment jurisprudence between wages, hours, and working conditions, the collective bargaining trilogy, and other matters. If we go back to the Abood case, we discover that for some reasons collective bargaining politics is different from other forms of politics. All right. For purposes of analysis I accept that kind of distinction. Well, let's use it here. It seems to me there is greater distinction between wages, hours, and working conditions subject to exclusivity and discussion with a public employers, an arm of government, over inherent managerial policy questions. I think if you can say somehow wages, hours, and working conditions have to be put down here in the scale in terms of talking about their political ramifications and the rights of individuals to be coerced into supporting that kind of activity, then on the other side you would have to say the inherent managerial questions have to be looked at somewhat more seriously.
Byron R. White: I would think an employer would have much more freedom to choose whom he wanted to talk with with respect to inherent managerial things than about wages, hours, and working conditions.
Edwin Vieira, Jr.: But, they have chosen.
Byron R. White: Yes.
Edwin Vieira, Jr.: The statute says--
Byron R. White: And you think it is unconstitutional.
Edwin Vieira, Jr.: --Well, if you are getting to the question of whether the exclusivity principle can be carried over, the first problem, from my perspective in looking at it, would be that there is no procedural similarity in the two situations. That is if you accept the validity of the concept of collective bargaining through exclusivity, it does hinge ultimately, it seems to me, on the practical necessity of having one collective bargaining agreement.
Warren E. Burger: If this statute was completely silent on the meet and confer aspect, had just the traditional labor relation negotiating provisions, is there anything that you know of in federal or state law that would prevent the management at the top from calling on a committee or any group of employees they wanted to discuss the subjects of management that you are talking about and policies if they wanted to do it?
Edwin Vieira, Jr.: Well, I think if you carry that principle to its logic of conclusion, you run into a whole host of what I would call one-man, one-vote or political equality cases and a number of First Amendment cases that essentially teach--
Warren E. Burger: Do you think the First Amendment allowed the Minnesota administrators to talk with anyone they want about problems of management including their own employees, not only statute.
Edwin Vieira, Jr.: --Well, if they had a rational work-related reason for consulting with particular employees about particular management problems, that is one thing. We are not attacking the concept that employers should be allowed to talk with employees.
William H. Rehnquist: Well, no employer is here attacking the Minnesota statute on that basis either. This is an attack by people who want to talk to the employer, not an attack by the employer who claims his First Amendment rights are being denied.
Edwin Vieira, Jr.: That is correct. I agree with you one hundred percent. The employer is on the other side. But, all the people here, all of the employees on both sides are in the same position with respect to this rational basis analysis. All of these employees are similarly situated with respect to the employer in terms of the usefulness of contributing information about their work assignments or the managerial questions that come up in the course of the discussions that go on in meet and confer. The distinction that is being made in this statute is here we have a private organizations, MCCFA, that has been selected for this purpose, negotiation, which concededly requires one separate negotiating entity. And, carried over from this we discover the application of this statute to preclude all the non-members from participating in a scheme of communications in which they all could participate equally and did prior to PELRA participate equally without any necessity for having a single private organization determine the content of those committees. That is why I can't understand their complaint that somehow the result that the District Court came up with is an interference, number one, with the meet and confer system, because the meet and confer system operates in essence the same way it always did with respect to the employer. Or, number two, that somehow it delegates from the position of this union as the exclusive representative with respect to negotiations. They are the representative with negotiations and the meet and confer committees form the same structure, at least with respect to the Board, as they did prior to the District Court's order. What is the difference? The difference is the dissidents have come out to say something to their own employer and to their own government. That is the difference. They have been allowed to do the thing that before PELRA came into existence was taken for granted as part of the right of an academic.
Warren E. Burger: That is what I meant when I asked you why you needed any statute at all to have meet and confer sessions under the Minnesota statute.
Edwin Vieira, Jr.: Well, excuse me, Your Honor. That is right. I think as a practical matter you wouldn't. I think any enlightened administrator running a community college or other system of higher education would have these interactions with the faculty.
William H. Rehnquist: But, the meet and confer statute limits the authority of the administrators to discuss. I mean, that is what this case is all about really, isn't it?
Edwin Vieira, Jr.: Well, it limits their authority in terms of the entity or individual with whom they may have the discussion.
William H. Rehnquist: Yes.
Edwin Vieira, Jr.: That is right, exactly. That discrimination is what the case is all about.
William H. Rehnquist: Well, you call it discrimination. It is at any rate a limitation on that authority.
Edwin Vieira, Jr.: All right. And, our position is first, under the statutory scheme, there is really no rational basis for it. All these employees are similarly situated. Why do we have one group excluded simply because they have chosen not to join this private organization. And, secondarily, there is absolutely no interference in the result that we have obtained and are arguing for with any part of the statutory--
Byron R. White: The statute doesn't dictate to the exclusive representative to choose only union members to go to the meetings.
Edwin Vieira, Jr.: --No, sir.
Byron R. White: That is a private choice of the union. How are you going to blame the state for that?
Edwin Vieira, Jr.: Because the state gave this organization the authority to do that.
Byron R. White: But, it certainly didn't order them to do it and I don't understand how you can say it is state policy that the union is doing it that way.
Edwin Vieira, Jr.: Well, they are operating under color of the statute, A; and, B, certainly the Board has been cooperating with them since they began running meet and confer this way. The Board is sitting on the other side of the case here as Mr. Justice Rehnquist pointed out. They are certainly not challenging MCCFA's application of this statute. And, they could certainly do so.
William H. Rehnquist: They couldn't challenge it.
Edwin Vieira, Jr.: Excuse me?
William H. Rehnquist: They couldn't challenge it. An administrator of a state institution has no right to assert against a command of the state.
Edwin Vieira, Jr.: No, but what they could have done to the MCCFA was to say to them this statute does not require you to limit participation in these meet and confer committees to your members only. We are not going to meet with you until you bring us a balanced committed or show us that you have tried to do so and if you don't like it, file an unfair labor practice against us.
William H. Rehnquist: That would have been consistent with the statute, I take it.
Edwin Vieira, Jr.: Yes, sir. It would have been consistent with the statute and then we might have gotten this same result, but instead the Board turned around and said we are very happy with this, we are perfectly willing to meet with you to the extent--
Byron R. White: But it still was the union decision about how to structure its committees. It wasn't a state decision about how to structure.
Edwin Vieira, Jr.: --Well, it was the MCCFA's claim that it was entitled to select individuals from its membership only based upon... It is based upon 179.66, Subdivision 7. That is what they have been arguing. They have authority in directly there to it because the public employer can meet only through them and they are the exclusive representative, not as a matter of private action. They were designated as such under the statute. That is where they gained that authority.
Byron R. White: The decision to exclude your client, that was purely a union decision or a private decision.
Edwin Vieira, Jr.: Well, it was a private decision acquiesced by this Board. It was a private decision taken under the color of the statute.
Warren E. Burger: Thank you, gentlemen, the case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.