Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

D'Agostino v. Patrick

United States District Court, D. Massachusetts

March 13, 2015

KATHLEEN D'AGOSTINO; DENISE BOIAN; JEAN M. DEMERS; DENISE FARLEY; STEPHANIE KOZLOWSKI- HECK; LESLIE MARCYONIAK; ELIZABETH MONGEON; LAURIE SMITH; and KELLY WINSHIP, Plaintiffs,
v.
GOVERNOR DEVAL PATRICK, In His Official Capacity as Governor of the Commonwealth of Massachusetts; THOMAS L. WEBER, in His Official Capacity as the Director of the Department of Early Education and Care; and SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509, Defendants

For Kathleen D'Agostino, Denise Boian, Jean M. Demers, Laurie Smith, Kelly Winship, Judith Santos, Plaintiffs: Geoffrey R. Bok, LEAD ATTORNEY, Stoneman, Chandler & Miller, Boston, MA; William L. Messenger, PRO HAC VICE, National Right to Work Legal Defense Foundation, Springfield, VA.

For Deval Patrick, in his official capacity as Governor of the Commonwealth of Massachusetts, Thomas L Weber, in his official capacity as the Director of the Department of Early Education and Care, Defendants: Tori T. Kim, LEAD ATTORNEY, Massachusetts Attorney General's Office, Boston, MA.

For Service Employees International Union, Local 509, Defendant: Laura Trice, Scott A. Kronland, LEAD ATTORNEYS, PRO HAC VICE, Altshuler Berzon LLP, San Francisco, CA; Betsy L. Ehrenberg, Katherine D. Shea, Pyle Rome Ehrenberg, PC, Boston, MA.

Page 110

MEMORANDUM AND ORDER

Leo T. Sorokin, United States District Judge.

I. INTRODUCTION

Plaintiffs, individuals who operate child care businesses in their homes, seek to declare unconstitutional, 2012 Mass. Act 189, " An Act Relative to Early Education and Care by Family Child Care Providers" codified at Mass. Gen. Laws ch.15D § § 2(u), 17(a)-(k); 150E, § 7(c); and ch.180, § 17G (the " Act" ) which designates as public employees, for purposes of collective bargaining, those family child care providers who accept government subsidies through vouchers. Plaintiffs allege that they are being compelled to associate with the defendant, Services Employees International Union, Local 509 (" SEIU" or " Union" ) as their exclusive representative in

Page 111

violation of their First Amendment rights. Defendants move to dismiss the Amended Complaint on the grounds Plaintiffs have failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). For the reasons set forth herein, Defendants' Motion is ALLOWED and Plaintiffs' First Amended Complaint is hereby DISMISSED.

II. Relevant Facts

The facts are undisputed. On August 1, 2012, then Governor Deval Patrick signed into law, 2012 Mass. Acts ch.189 entitled " An Act Relative to Early Childhood Education and Care by Family Child Care Providers." The Act, codified at Mass. Gen. Laws. ch. 15D, § 17, incorporates pre-existing Massachusetts labor statutes set forth in Mass. Gen. Laws ch. 150E et. seq. A " family child care provider" (" Provider" ) is a person " who provides family child care services on behalf of low-income and other at risk children and receives payment from the Commonwealth for such services pursuant to a rate structure for voucher and contracted payments." Mass. Gen. Laws ch. 15D, § 17(a). Providers are employees of the Commonwealth for the limited purpose of collective bargaining. Mass. Gen. Laws ch. 15D, § § 17(b)-(c). Providers are not employees of the Commonwealth for any other purpose. Id. The Act allows Providers to elect a union to be their " exclusive representative" for the purpose of collective bargaining. Mass. Gen. Laws ch. 15D, § 17(b); ch. 150E, § 2.

The exclusive representative " shall have the right to act for and negotiate agreements covering all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership." Mass. Gen. Laws ch. 150E, § 5. Chapter 150E, § 6 obligates the Massachusetts Department of Early Education and Care (" EEC" ), on behalf of the Commonwealth, to negotiate with the exclusive representative over traditional mandatory subjects of bargaining. These include " wages, hours, standards or productivity and performance, and any other terms and conditions of employment," ch. 150E, § 6, as well as " developing and encouraging greater education and training opportunities for family child care Providers, improvement of recruitment and retention of qualified Providers and reimbursement and payment procedures." Mass. Gen. Laws ch. 15D, § 17(g). The Act also provides that the EEC must " bargain about the rate structure for voucher and contracted payments." Mass. Gen. Laws ch. 15D, § 17(h). In addition to requiring bargaining over mandatory subjects, the Act allows for negotiation over permissive subjects, stating that " [n]othing in this section shall inhibit the parties from discussing other permissive subjects of bargaining, including, but not limited to, the rate structure for family child care Providers." Mass. Gen. Laws ch. 15D, § 17(h).

The selection of an exclusive representative under Chapter 150E does not require any Providers to join the Union. Mass. Gen. Laws ch. 150, § 2. Massachusetts law protects the " right to refrain" from joining a union, ch. 150E, § 2, and makes it a " prohibited practice" to restrain or coerce any employee in the exercise of that right. Mass. Gen. Laws ch. 150E, § 10(a)(1), (b)(1). Moreover, individual Providers retain the right to bypass the exclusive representative and present grievances directly to EEC, with the caveat that the union has an opportunity to be present. Mass. Gen. Laws ch. 150E, § 5. Any remedy EEC implements, " shall not be inconsistent with the terms of an agreement then in effect between the employer and the exclusive representative." Mass. Gen. Laws ch. 150E, § 5.

Page 112

EEC recognized SEIU as the exclusive representative for the Providers as certified In the Matter of Dept. of Early Education and Care and Local 509, Service Employees International Union, Case No. WMAS-12-2391 by the Commonwealth of Massachusetts, Department of Labor Relations on November 7, 2012. Doc. No. 1-1 at 2. Plaintiffs have not challenged the election process, nor have they alleged that the process established in the legislation, or implemented thereafter by the Commonwealth, precluded--in a First Amendment sense--anyone other than SEIU from competing for the position of exclusive representative.[1]

After certification, SEIU negotiated with EEC and the parties entered into a collective bargaining agreement (" CBA" ), which remains in effect through June 30, 2016. Doc. No. 15 ¶ 23; Doc. No. 1-1. The CBA addresses such things as payment rates, training, and grievance procedures, and paid holidays and professional days for family child care providers. Doc. No. 1-1. The CBA also obligates EEC to review and assess other issues affecting family child care providers (such as the need for non-standard child care hours, children with special needs, and paid time-off), and to conduct face-to-face trainings and webinars. Id.

Plaintiffs contend they are being compelled to associate with SEIU " for expressive purposes" because of SEIU's exclusive representation. Doc. No. 15 ¶ ¶ 32, 33. Specifically, they argue the Act thrusts them into a mandatory agency relationship with SEIU for petitioning and contracting with the Commonwealth, and affiliates them with the SEIU's petitioning, contracts, and policy positions. Doc. No. 25 at 7-11. Thus, Plaintiffs argue such compulsion violates their rights to freedom of association and expression under the First Amendment of the United States Constitution, as secured against state infringement by the Fourteenth Amendment and 42 U.S.C. § 1983. Doc. No. 15 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.