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D'Agostino v. Baker

United States Court of Appeals, First Circuit

February 5, 2016

KATHLEEN D'AGOSTINO; DENISE BOIAN; JEAN M. DEMERS; LAURIE SMITH; KELLY WINSHIP; DENISE FARLEY; STEPHANIE KOZLOWSKI-HECK; LESLIE MARCYONIAK; ELIZABETH MONGEON, Plaintiffs, Appellants,
v.
CHARLIE BAKER, in his official capacity as Governor of the Commonwealth of Massachusetts; THOMAS L. WEBER, in his official capacity as Director of the Department of Early Education and Care; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509, Defendants, Appellees

Page 241

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Leo T. Sorokin, U.S. District Judge.

William L. Messenger, with whom the National Right to Work Legal Defense Foundation, Geoffrey R. Bok, and Stoneman, Chandler & Miller were on brief, for appellants.

Timothy J. Casey, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellees Charlie Baker and Thomas L. Weber.

Scott A. Kronland, with whom Peder J.V. Thoreen, Altshuler Berzon LLP, Katherine D. Shea, and Pyle Rome Ehrenberg PC were on brief, for appellee Service Employees International Union, Local 509.

Sarah A. Smegal, with whom Hackett Feinberg P.C. was on brief, for the National Federation of Independent Business Small Business Legal Center, amicus curiae in support of plaintiffs-appellants.

Before Lynch, Circuit Judge, Souter, Associate Justice,[*] and Selya, Circuit Judge.

OPINION

Page 242

David H. Souter, Associate Justice.

As relevant here, Mass. Gen. Laws ch. 15D, § 17(b) provides that family child care providers " shall be considered public employees . . . solely for the purposes of . . . chapter 150E," the statute authorizing employees in public service to organize for collective bargaining. The appellants are such providers (and one assistant to a provider), operating on a daily basis in their own houses and serving " low-income and other at-risk children," id. § 17(a), with custodial care and educational help. They are hired by those legally responsible for the children at rates set by the Commonwealth, which underwrites the resulting charges.

A majority of the class of providers in question chose the appellee Service Employees International Union, Local 509, as their exclusive agent for bargaining collectively with the responsible state agency, the Department of Early Education and Care. The subjects of their attention are customary in collective bargaining, and include recruitment and training of providers. Id. § 17(g). The state Legislature nonetheless retains ultimate discretion over appropriations necessary to fund the government's subvention. Id. ch. 150E, § 7(b).

No provider is required by statute or by the current agreement between the Department and the Union to become a union member or to contribute any money to the Union for any purpose. While a provider may not bargain separately or furnish services under terms different from those set by the collective bargaining agreement, a provider is free to address the Department, the Legislature and the public with any expression of disagreement with a union position, or on the broader policy or philosophy governing family child care services, or on any other subject. And a provider may raise a grievance directly with the Department, although the Union has a right to be represented at any ensuing meeting, and the Department may take no responsive action at odds with an existing agreement.

The appellants declined to join the Union and brought this action in the district court under 42 U.S.C. § 1983 challenging the statutory scheme that authorizes the selection of an exclusive bargaining agent to agree on terms that affect their relationships with their clients and the government. Their facial challenge to the statutory regime claims violation of their rights of freedom of association and other expressive rights guaranteed by the First Amendment. The district court dismissed their complaint under Federal Rule of Civil Procedure 12(b)(6), and we affirm.

Our disposition of the constitutional claims turns on precedent, and the appellants' principal arguments probe the vitality of that precedent in light of recent developments. The convenient starting point for purposes of this case is Abood v. Detroit Board of Education,431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), dealing with the rights of teachers employed in public education to be free from enforced association with a union. The Court affirmed the centrality of exclusive and fair representation to effective collective bargaining, id. at 220-21, and followed law previously applied in private sector litigation: it permitted an agency shop agreement requiring non-union members of a bargaining unit to contribute a fee in lieu of dues to support the bargaining activity of an exclusive union-bargaining representative selected by a majority of ...


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