Heard: January 8, 2019.
from a decision of the Commonwealth Employment Relations
Board, The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
N. Cameron (Aaron B. Solem, of Minnesota, also present) for
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
G. Matuschak & Robert K. Smith, for Pioneer Institute,
Inc., were present but did not argue.
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.
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.
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.
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.
Facts and procedural history.
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. The collective
bargaining agreements between the employers and the unions
nonetheless contained provisions authorizing the unions to
collect agency fees from nonmembers. 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
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. 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]." 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. 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
investigator took affidavits from the employees and the
unions, and then issued a decision in November 2014
dismissing the charges. 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.
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.
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'