Labor & Employment Law Daily Public employee challenge to agency fees moot because collection of fees ended voluntarily
Friday, April 12, 2019

Public employee challenge to agency fees moot because collection of fees ended voluntarily

By Harold S. Berman J.D.

A First Amendment constitutional challenge to public sector unions’ collection of agency fees was moot after unions voluntarily ceased collections in compliance with U.S. Supreme Court’s ruling in Janus v. AFSCME, Council 31 .

Challenges by four public sector employees in Massachusetts alleging that mandatory agency fee provided under state law, G.L. c. 150E, violated their First Amendment rights under the U.S. Constitution failed as moot, ruled the Massachusetts Supreme Court. Here, the unions had voluntarily stopped collecting agency fees to comply with the U.S. Supreme Court’s recent Janus decision declaring such fees to be unconstitutional for public sector unions. Similarly, the exclusive representation provision of G.L. c. 150E did not violate non-members’ constitutional rights. The nonmembers were subject to exclusive representation by the unions, but non-members were denied participation in collective bargaining activities and were not entitled to alternative representation (Branch v. Commonwealth Employment Relations Board, April 9, 2019, Kafker, S.).

Objection to union activities. Four Massachusetts public employees who were not union members filed charges of prohibited practice with the Massachusetts Department of Labor Relations (DLR), objecting to the unions’ collection of mandatory “agency fees” from non-members within their bargaining unit to fund union operations as their exclusive representative. The employees claimed that both the mandatory agency fee and the exclusive representation provisions of M.G.L. c. 150E violated their First and Fourteenth Amendment rights. Although the unions charged the employees fees, they prohibited them from attending meetings or voting.

A DLR investigator dismissed the case, and the Commonwealth Employment Relations Board upheld the dismissal. The investigator found that the DLR lacked authority to address the employees’ Constitutional arguments, and so she could consider only whether the employers and unions violated G.L. c. 150E. She concluded that the statute specifically authorized the unions to serve as the employees’ exclusive representatives, and that the unions were permitted to enforce restrictive membership rules, and were not prohibited from requiring non-member employees to pay agency fees to a public sector union.

The employees appealed. While their appeal was pending, the U.S. Supreme Court issued its decision in Janus v. AFSCME, Council 31, holding that all state agency fee laws violated the First Amendment because they compelled union non-members of public sector unions to support the union’s speech. The employees contended that the Janus decision required the Massachusetts high court to overturn the DLR’s decision, and find the provision of G.L. c. 150E governing agency fees to be unconstitutional on its face, and the exclusive representation provisions of the statute to be unconstitutional as applied to the employees.

Agency fees issue moot. The court vacated as moot the portion of the Employment Relations Board’s decision upholding the union’s collection of agency fees under the statute. Both the employers and unions already had voluntarily complied with Janus, did not collect any agency fees from the employees while their complaints were pending, and were no longer permitting the non-consensual collection of agency fees from non-union employees.

Additionally, the state Attorney General and DLR issued guidance that Janus prohibited public employers and public sector unions from collecting agency fees from nonmembers who did not consent, and the unions and employers conceded they were bound by Janus. Consequently, because no agency fee demands were currently being made, and agency fee demands were unlikely to recur, there was no controversy for the court to decide, and no relief for it to order.

Constitutionality of exclusive representation. The court also affirmed the Employment Relations Board’s decision permitting the unions’ exclusive representation of the employees in collective bargaining, and its prohibitions of non-members from collective bargaining activities. The court found that neither the unions’ exclusive representation nor their prohibitions on non-members violated the First Amendment.

Exclusive representation was fundamental to labor law policy under G.L. c. 150E, as was true under federal labor law. Several U.S. Supreme Court decisions affirmed its “long and consistent adherence to the principle of exclusive representation” as the most effective means of collective bargaining. Nor did Janus question the primacy of exclusive representation to the collective bargaining process.

Non-members barred from participation. Supreme Court decisions did closely link a union’s exclusive representation to its duty of fair representation, and unions were prohibited from negotiating collective bargaining agreements that discriminated against non-members. Nevertheless, the employees’ argument failed that the unions used exclusive representation to deny them “a voice and a vote in their workplace conditions” unless they joined the union. Any link between the unions’ exclusive representation and its membership requirements was too attenuated to constitute state action.

Even if such a link in certain circumstances was sufficient to constitute state action, it would not trigger any constitutional issues. The employees’ inability to participate in collective bargaining activity resulted from their losing the election regarding union representation, and choosing not to join the union after they lost. Such a result was an intended and expected feature of exclusive representation. Exclusive representation by a democratically selected union did not violate non-members’ right of free association.

Additionally, having multiple representatives in collective bargaining was not practicable, and the state had a legitimate interest in ensuring its public employers heard only one voice representing the majority employee view at the bargaining table.

Duty of fair representation. Even absent input into bargaining activities, the non-member employees still were protected by the duty of fair representation, as the unions were prohibited from negotiating a collective bargaining agreement that discriminated against non-members in terms and conditions of employment. The employees did not plausibly allege that the unions breached their duty of fair representation.

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