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Ben Branch v. Commonwealth Employment Relations Board

Supreme Judicial Court of Massachusetts, Suffolk

April 9, 2019

BEN BRANCH & others[1],
v.
COMMONWEALTH EMPLOYMENT RELATIONS BOARD & others.[2]

          Heard: January 8, 2019.

          Appeal from a decision of the Commonwealth Employment Relations Board, The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Bruce N. Cameron (Aaron B. Solem, of Minnesota, also present) for the employees.

          Timothy J. Casey, Assistant Attorney General (T. Jane Gabriel also present) for Commonwealth Employment Relations Board.

          Jeffrey W. Burritt, of the District of Columbia, for the interveners.

          Mark G. Matuschak & Robert K. Smith, for Pioneer Institute, Inc., were present but did not argue.

         The following submitted briefs for amici curiae:

          Deborah J. La Fetra, of California, & Brad P. Bennion for Pacific Legal Foundation & others. James A.W. Shaw & Donald J. Siegel for Massachusetts AFL-CIO.

          Charlotte Garden, of the District of Columbia, & Brendan Sharkey for twenty-six labor law professors.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          KAFKER, J.

         Massachusetts, like most States, allows public sector employees in a designated bargaining unit to elect a union by majority vote to serve as their exclusive representative in collective bargaining with their government employer. No eligible employee is required to join a union, but unions have historically collected mandatory "agency fees" from nonmembers in the bargaining unit to fund their operations as the exclusive representatives of members and nonmembers alike. In the instant case, four public employees raise challenges under the First Amendment to the United States Constitution to both the exclusive representation and the mandatory agency fee provisions of G. L. c. 150E.

         The employees initially filed charges of prohibited practice before the Department of Labor Relations (DLR). A DLR investigator dismissed the case, and the Commonwealth Employment Relations Board (board), the three-member board within the DLR responsible for reviewing investigator decisions, upheld the dismissal. The employees appealed to the Appeals Court, and while the case was on appeal, the United States Supreme Court, in Janus v. American Fed'n of State, County, & Mun. Employees, Council 31, 138 S.Ct. 2448, 2486 & n.28 (2018), held that all State "agency-fee laws . . . violate the [First Amendment]" by compelling nonmembers of public sector unions to support their unions' speech. The employees argue that Janus requires us to overturn the board's decision dismissing their charges and declare the agency fee provision of the collective bargaining statute, G. L. c. 150E, § 12, unconstitutional on its face, and the exclusive representation provisions of the statute, G. L. c. 150E, §§ 2, 4, 5, 12, unconstitutional as applied to the employees.

         We hold that the employees' constitutional challenge to the agency fee provision is moot because the unions voluntarily stopped collecting agency fees to comply with Janus. It is not reasonably likely that they will recommence collecting the fees, as the Attorney General and the DLR have issued guidance explaining that Janus categorically prohibits public sector unions from collecting agency fees from members of a bargaining unit who do not belong to the union and do not consent to pay the fees, and the question of law is now settled. We further hold that the employees' First Amendment challenge to the exclusive representation provisions of G. L. c. 150E is foreclosed by Supreme Court precedent and thus lacks merit. We accordingly vacate as moot the board's decision with respect to the constitutionality of the agency fee provisions of G. L. c. 150E and affirm the board's decision with respect to the exclusive representation provisions of G. L. c. 150E.[3]

         1. Facts and procedural history.

         The significant facts in this case are not disputed. As mentioned, the employees are public sector employees working in designated bargaining units. At all relevant times, however, they were not members of the unions that served as their exclusive bargaining representatives.[4] The collective bargaining agreements between the employers and the unions nonetheless contained provisions authorizing the unions to collect agency fees from nonmembers.[5] The unions also maintained rules that nonmembers were "not entitled ... to participate in affiliate decision-making," specifically to attend union meetings (other than contract ratification meetings) or "vote on election of officers, bylaw modifications, contract proposals or bargaining strategy."

         In the spring of 2014, the unions requested that the employees pay their annual agency fees for the 2013-2014 academic year. In response, the employees filed complaints with the DLR alleging that these fee requests constituted a prohibited practice on the part of the unions and the employers.[6] The employees alleged that the requirement that they pay agency fees constituted a prohibited practice under G. L. c. 150E, §§ 10 (a.) (1), (3), (b) (1), and 12, because "compulsory union fees . . . are unconstitutional under the First and Fourteenth Amendments [to the United States Constitution]."[7] More specifically, the employees claimed that G. L. c. 150E, § 12, the statutory provision that authorizes public sector unions to collect agency fees, was unconstitutional on its face.[8] They also claimed that this statute was unconstitutional as applied to them because it required them to pay agency fees "even though they are not entitled to attend union meetings or be involved in any union activities such as having a voice or a vote on bargaining representatives, contract proposals or bargaining strategy." Finally, they challenged the constitutionality of the exclusive representation provisions of G. L. c. 150E, § 5, for essentially the same reasons.[9]

         A DLR investigator took affidavits from the employees and the unions, and then issued a decision in November 2014 dismissing the charges.[10] In her decision, the investigator concluded that the DLR did not have authority to address the employees' constitutional arguments. Instead, she only considered whether the employers and the unions had violated G. L. c. 150E. She concluded that G. L. c. 150E, § 5, expressly authorized the unions to serve as the employees' exclusive representatives and that they were permitted to enforce membership rules restricting service on negotiating committees to union members. She further concluded that, under controlling precedent of this court and the United States Supreme Court, neither the employers nor the unions engaged in a prohibited practice by requiring nonmember employees to pay agency fees to a public sector union pursuant to G. L. c. 150E, § 12.

         The employees sought review of the investigator's dismissal of their charges by the board pursuant to G. L. c. 150E, § 11. They conceded in their briefing that "existing precedent" required the board to uphold the dismissal of the unfair labor practice charges but appealed in order "to exhaust administrative remedies" and preserve their constitutional arguments for appellate review. In February 2015, the board affirmed the dismissal in its entirety for the reasons set forth in the investigator's decision. The employees then appealed from the board's decision to the Appeals Court. That court granted the unions' motion to intervene and stayed the case until the Supreme Court issued Janus in June 2018. We then transferred the case to this court on our own motion and ordered supplemental briefing.

         2. Mootness.

         We first address the employees' argument that Janus requires us to overturn the board's decision upholding the unions' collection of agency fees pursuant to the agency fee provision, G. L. c. 150E, § 12. The Supreme Court, in Janus, 138 S.Ct. at 2486, held that "States and public sector unions may no longer extract agency fees from nonconsenting employees," and the board and the unions accordingly concede that "public employers and public-sector unions can no longer collect agency fees from nonunion employees unless they affirmatively consent." The board argues that both the employers and unions have voluntarily complied with Janus by no longer permitting the nonconsensual collection of agency fees from employees who are not in a union, and hence that the portion of its decision dismissing the employees' constitutional ...


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