Alvini v. Colonial School Dist., 13019
| Citation | 641 A.2d 841 |
| Decision Date | 10 November 1993 |
| Docket Number | No. 13019,13019 |
| Parties | 146 L.R.R.M. (BNA) 2152, 91 Ed. Law Rep. 597 Elaine ALVINI, Peggy A. Beers, Blair Benson, Eleanor S. Bentz, Susan Cannon, Delores W. Chappell, Beverly Clark, Hilda A. Craig, Gloria J. Diggs, June E. Dixon, Emma L. Fowler, Elizabeth Grier, Lorraine E. Hand, Joyce Hatfield, Rose M. Henderson, Connie Hicks, Margaret A. Hinson, Joanne M. Hopkins, Shirley A. Hurd, Roberta Krieg, Carol A. Lopez, Mary Rae Mahoney, Laura H. Mathis, Elvinia Moody, Mary M. Pollard, Janet M. Reed, Cathy L. Reese, Marjorie Rodriguez, Irene Schorah, Gladys Skrzec, Lubomira Szeremeta, Patricia A. Till, Doris Wilmer, Rosalie Wilson, and Catherine J. Zimmerman, Plaintiffs, v. COLONIAL SCHOOL DISTRICT, Colonial Paraprofessional Association and Colonial Food Service Workers Association, Defendants, (Respondents Below), Public Employment Relations Board, Defendant (Agency Below). Civ. A. . Submitted: |
| Court | Court of Chancery of Delaware |
Earl Christensen, Bear, John C. Scully, Springfield, VA, for plaintiffs.
Sheldon N. Sandler and Omar Y. McNeill, Young, Conaway, Stargatt & Taylor, Wilmington, for defendants.
ALLEN, Chancellor.
Pending is an appeal from a decision of the Public Employee Relations Board ("PERB") dismissing an unfair labor practice complaint filed by employees of the Colonial School District against the Colonial Paraprofessional Association and Colonial Food Service Workers Association, each of which are employee bargaining representatives, and Colonial School District. The complaint alleged that a collective bargaining agreement that provides for the compulsory payment of certain fees to the defendant associations by nonmember employees violates provisions of the Public School Employment Relations Act ("PSERA"), 14 Del.C. 4001 et seq. (1992 Cum.Supp.). The complaint seeks judicial review of the PERB dismissal of the complaint on June 7, 1993. Plaintiffs appealed the PERB decision to this court within fifteen days of the date upon which the decision was rendered, in conformity with Section 4009(a). 1
Plaintiffs are all employees of the Colonial School District ("School District"), and are in bargaining units represented either by the Colonial Paraprofessional Association ("Paraprofessional Association") or by the Colonial Food Service Workers Association ("Food Service Workers Association"). Defendants are the School District, the Paraprofessional Association, the Food Service Workers Association, and PERB. 2
None of the plaintiffs is a member of either Association. 3 On or about September 1, 1990 the School District entered into collective bargaining agreements with each of the Associations. The agreements contain language stating that employees are not required as a condition of employment to join a union or pay a service fee. Stipulation p 4. Nevertheless, the agreements provide for the payment of a service charge (also called agency fee) 4 assessed against nonmembers of the Associations who are included in the bargaining unit as compensation for the fair value of services rendered by the Associations. 5
Plaintiffs offer three grounds in support of their claim that the PERB erroneously dismissed their complaint. First, they contend that as a constitutional matter, PSERA must be read implicitly to forbid all agency fees because requiring their payment impinges on First Amendment rights of association.
Second, plaintiffs claim that contract provisions requiring employees to pay service fees violate PSERA. It is claimed that mandatory agency fees unlawfully encourage membership in unions, and provide assistance to them.
Lastly plaintiffs argue that even if the Delaware statute does not guarantee a right to work without payment of agency fees, then at least the plaintiffs who are paraprofessionals are included in PSERA language exempting "certified professional school employees" from the requirement to pay service fees.
(1) I address first plaintiffs' argument that mandatory service fees violate First Amendment rights of free association because the State must have, but lacks, a compelling interest to justify this payment. The United States Supreme Court has held that collective bargaining agreement provisions mandating payment of service fees to a union representing public employees do not violate the First Amendment's guarantee of freedom of association. In Abood v. Detroit Bd. of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) the Supreme Court recognized that although payment of a service fee impacts employees' First Amendment interests, those effects can be justified by the benefits derived from the payments, namely "labor peace" and the discouragement of free-riding in the collective bargaining process. Id. at 220-224, 97 S.Ct. at 1791-93. Justice Stewart wrote:
To be required to help finance the union as a collective-bargaining agent might well be thought ... to interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit. But the judgment clearly made in [Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961) and Railway Employees' Dep't v. Hanson, 351 U.S. 225, 237, 76 S.Ct. 714, 721, 100 L.Ed. 1112 (1956) () ] is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.
Id. at 222, 97 S.Ct. at 1793 (footnote omitted). In Chicago Teachers Union Local No. 1 v. Hudson, the Supreme Court restated its rejection of the claim that it is "unconstitutional for a public employer to designate a union as the exclusive collective-bargaining representative of its employees, and to require nonunion employees as a condition of employment to pay a fair share of the union's cost of negotiating and administering a collective bargaining agreement." 475 U.S. 292, 302, 106 S.Ct. 1066, 1073, 89 L.Ed.2d 232 (1986).
In this case, plaintiffs are required to pay a service fee that is justified as covering a part of the costs of collective bargaining and the administration of the grievance process. That service fee is just over 50% of total union dues. 6 Insofar as plaintiffs have not alleged that the fees constitute compulsory subsidies of non-collective bargaining activities of the defendants, and since the payment of a service fee to cover collective bargaining costs has passed constitutional muster, plaintiffs' basic First Amendment argument must fail. PERB did not err in affirming the Executive Director's decision that the employees' rights under the United States Constitution were not unlawfully abridged by permitting the assessment of a service fee.
(2) Plaintiffs further claim that a close reading of PSERA reveals that it implicitly guarantees employees a right to work without paying any agency fee. In pertinent part, the statute grants to public school employees the right to:
(1) Organize, form, join or assist any employee organization, provided that membership in, or an obligation resulting from collective bargaining negotiations to pay any dues, fees, assessments or other charges to an employee organization shall not be required as a condition of employment for certified professional school employees.
14 Del.C. § 4003(1). Plaintiffs claim that a right to "[o]rganize, form, join or assist," implicitly includes the right to refrain from such activities. 14 Del.C. § 4003(1). Mandatory payment of service fees effectively eliminates the employee's right to refrain, claim plaintiffs, because the fee payment compels membership or at least assistance from an unwilling participant.
Prior decisions of Delaware courts have held that Delaware does not prohibit agency shop arrangements and that unions may sue to collect service fees. Delaware has not enacted a "right-to-work" statute as some states have, nor does PSERA include "right to refrain" language that guarantees a right to work without mandatory payment of union service fees. In Colonial Food Service Workers v. Hicks, Judge Babiarz found that Delaware law does not prohibit the compulsory payment of an agency fee, notwithstanding the courts' and legislature's virtual silence on the issue. Colonial Food Serv. Workers Ass'n v. Hicks, C.A. No. 90C-FE-63, 1992 WL 52220, Babiarz, J. (Feb. 19, 1992). In a predecessor case to Hicks, this court held that the Association could seek payment through a suit to collect the fees, and recognized in dicta that courts "have consistently upheld the legality of representation fees to be paid by non-members of a union...." Colonial Food Serv. Workers Ass'n v. Colonial Sch. Dist. Bd. of Educ., C.A. No. 8269, 1987 WL 18431, Hartnett, V.C., slip op. at 8-9 (Oct. 8, 1987).
In reaching its decision in Hicks the Superior Court considered those same cases from other jurisdictions as are urged by the parties here. The two foremost cases reach opposite results primarily because New Jersey has a right-to-work statute, whereas Indiana, like Delaware, does not. In Fort Wayne Education Ass'n, Inc. v. Goetz, an Indiana court of appeals found that the statute at issue, because it lacked an explicit right to refrain provision, permitted any requirements of employees short of union membership. 7 Ind.Ct.App., 443 N.E.2d 364, 371 (1982). The Fort Wayne court specifically noted that Indiana's legislature had repealed a statute with right to refrain language, and that the only action which could constitute an unfair labor practice was compulsory union membership. Id. The court found that an agency shop provision in a collective bargaining agreement was valid. Id. at 373. 8
In contrast, the New Jersey Supreme Court affirmed the Superior Court's holding that a proposed agency shop clause in a collective bargaining agreement would be in...
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...Abood to limit the counterbalancing "legislative assessment" only to explicit statutory language. See, e.g., Alvini v. Colonial School Dist., 641 A.2d 841, 844-46 (Del.Ch.1993) (upholding agency fee provision in public sector CBA as constitutional pursuant to Abood despite lack of explicit ......
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