Harrison v. Massachusetts Soc. of Professors/Faculty Staff Union/MTA/NEA

Decision Date15 May 1989
Citation405 Mass. 56,537 N.E.2d 1237
Parties, 132 L.R.R.M. (BNA) 2312, 53 Ed. Law Rep. 665 Edward R. HARRISON et al. 1 v. MASSACHUSETTS SOCIETY OF PROFESSORS/FACULTY STAFF UNION/MTA/NEA et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Brian A. Riley, Boston, for Massachusetts Soc. of Professors/Faculty Staff Union/MTA/NEA.

Carol Booth, Amherst, for plaintiffs.

Jean Strauten Driscoll, Boston, for Labor Relations Com'n, amicus curiae, submitted a brief.

Bruce N. Cameron, Springfield, Va., for Ernest Becker, amicus curiae, submitted a brief.


LYNCH, Justice.

In 1983, the plaintiffs, members of the same collective bargaining unit, commenced an action in the Superior Court for declaratory relief against the Massachusetts Society of Professors/Faculty Staff Union/MTA/NEA (union) and the Board of Trustees of the University of Massachusetts (trustees), challenging the requirement contained in the collective bargaining agreement (agreement) that the plaintiffs join the union or, in the alternative, pay an agency service fee or obtain a waiver of that fee. 3

The parties' statement of agreed facts indicates that, since 1978, the union and the trustees have entered a series of agreements covering wages, hours, and working conditions. Each agreement provides that all members of the bargaining unit must either join the union or pay an agency service fee. 4 At all relevant times the plaintiffs refused to join the union which represented their collective bargaining unit.

Commencing with the 1982-1983 academic year, the union made demands on the plaintiffs each year for payment of an agency service fee. The demands were made in accordance with the requirements of 456 Code Mass.Regs. § 17.00 (1986), governing agency fees. Beginning with the 1986-1987 academic year the union's agency service fee demand included information concerning the union's calculation of the fee. Similar information had been available in prior years, but had not been sent with the demands.

All the plaintiffs have objected to paying an agency service fee. The union has insisted that, unless a member of the collective bargaining unit pays the fee or challenges the fee, he or she is subject to a five-day suspension. In 1983, three of the plaintiffs were suspended without pay for one week for not paying the 1981-1982 agency fee.

In 1987, the plaintiffs filed an amended complaint alleging that the actions by the union and the trustees violated 42 U.S.C. § 1983 (1982) and G.L. c. 12, § 11I (1986 ed.). The plaintiffs requested that the judge (1) declare that the defendants violated the plaintiffs' rights secured by the First Amendment to the Constitution of the United States by demanding that they pay an agency service fee without first providing the plaintiffs with adequate financial information so that they could gauge the propriety of the union's fee; (2) order the defendants to reimburse any plaintiff, who had been suspended, the amount of salary withheld during the suspension period; (3) declare that the defendants' demands for agency service fees were constitutionally inadequate; and (4) grant the plaintiffs reasonable costs and attorney's fees.

On the plaintiffs' motion for summary judgment the judge ruled that the Commonwealth, acting through the trustees, was immune from suit and that the union was not liable under § 1983, because it was not acting under color of State law. However, because the judge ruled that the union violated the plaintiffs' constitutional rights, he held the union liable on the G.L. c. 12, § 11I, claim and awarded the plaintiffs their attorney's fees and costs. The union was also ordered to conform its procedures with the constitutional rights of the plaintiffs and to reimburse certain plaintiffs for wages that were withheld from them. Only the union appeals from the judge's decision. We granted the union's application for direct appellate review. There was no error.

The union argues that (1) the judge abused his discretion by refusing to defer to the Labor Relations Commission's (commission's) primary jurisdiction over agency service fee disputes; (2) the plaintiffs' suit was improper because they failed to notify the Attorney General and failed to join the commission as a necessary party; (3) the requirements set out in Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), should not be applied retroactively and, even if they are, the union did not violate the plaintiffs' constitutional rights.

1. Jurisdiction. "The doctrine of primary jurisdiction, which counsels a court to stay its hand when the issue in litigation is within the special competence of an agency, 'does not apply, however, when the issue in controversy turns on questions of law which have not been committed to agency discretion.' " School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70, 76, 431 N.E.2d 180 (1982), quoting Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 221, 386 N.E.2d 211 (1979). There we recognized a distinction between challenges to the amount of the agency service fee, which are to be decided by the commission in the first instance, and constitutional challenges to the procedure by which agency fees are determined, which are appropriate for judicial determination. Id. In the present case the plaintiffs' claim that the union's agency fee demand violates their First Amendment rights because, inter alia, it failed to provide the plaintiffs with sufficient information regarding how the fee was calculated so that they could gauge its propriety. Chicago Teachers Union, Local No. 1 v. Hudson, supra, 475 U.S. at 306, 106 S.Ct. at 1076. There was no error in the judge's conclusion that the constitutional issue raised by the plaintiffs' claim was not one committed to the commission. 5 See Leahy v. Local 1526, Am. Fed'n of State, County, & Mun. Employees, 399 Mass. 341, 348, 504 N.E.2d 602 (1987). Cf. Lyons v. Labor Relations Comm'n, 397 Mass. 498, 501-502, 492 N.E.2d 343 (1986). As we noted in the School Comm. of Greenfield case, once the constitutional requirements are resolved, the application of those requirements to a specific factual context is within the expertise and primary jurisdiction of the commission. School Comm. of Greenfield, supra, 385 Mass. at 76, 431 N.E.2d 180.

2. General Laws c. 231A, § 8. The union claims that the plaintiffs' failure to join the commission as a necessary party and their failure to notify the Attorney General require dismissal of the claim. We do not agree.

Pursuant to G.L. c. 231A, § 8 (1986 ed.), whenever declaratory relief is sought "all persons shall be made parties who have or claim any interest which would be affected by the declaration." The plaintiffs' claim, however, does not challenge any commission action or anything within the jurisdiction or expertise of the commission. While the commission is likely to be "interest[ed]" in the resolution of this case, it does not have a legal interest that warrants its inclusion as a necessary party.

The union's claim that the action must be dismissed because the Attorney General was not notified of the plaintiffs' claim is also without merit. General Laws c. 231A, § 8, requires that the Attorney General be notified when certain claims raise a constitutional question. 6 However, the plaintiffs are not explicitly or implicitly challenging the constitutional adequacy of either G.L. c. 150E, § 12, or the commission's regulations, see 456 Code Mass.Regs. § 17.00. Rather, they are challenging the adequacy of the procedures by which the union demands and enforces payment of an agency fee by a nonmember. It is not necessary to notify the Attorney General when a constitutional issue is raised between private parties. The judge did not err in ruling that the Attorney General need not be notified of this action.

3. Constitutionality of the union's agency service fee demand. In ruling on the plaintiffs' motion for summary judgment, the judge held that the union violated the plaintiffs' constitutional rights because it failed to provide financial information regarding the calculation of the agency service fee in its demands prior to the 1986-1987 demand for agency service fees, and because the union's rebate procedure, in effect at the time of the 1986-1987 demand, was constitutionally inadequate. We agree, and thus affirm that portion of the order for summary judgment.

An agency service fee represents an employee's pro rata share of the union's over-all "costs of collective bargaining, contract administration, and grievance adjustment," and is paid by a bargaining unit member who chooses not to join the union. Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 294, 106 S.Ct. 1066, 1069, 89 L.Ed.2d 232 (1986), quoting Ellis v. Brotherhood of Ry., Airline & S.S. Clerks, Freight Handlers, Express & Station Employees, 466 U.S. 435, 447, 104 S.Ct. 1883, 1891, 80 L.Ed.2d 428 (1984). See School Comm. of Greenfield v. Greenfield Educ. Ass'n, supra, 385 Mass. at 78, 431 N.E.2d 180. It is beyond dispute that the plaintiffs, as members of the collective bargaining unit, are required to pay their proportional share of these costs. Id. However, it is also well established that, in demanding that nonmembers pay an agency service fee, a union cannot force the nonmember "to support the social, political, or speech activities of the [union]." Id. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235-237, 97 S.Ct. 1782, 1799-1800, 52 L.Ed.2d 261 (1977). Cf. International Ass'n of Machinists v. Street, 367 U.S. 740, 768-769, 81 S.Ct. 1784, 1799-1800, 6 L.Ed.2d 1141 (1961) (interpreting Railway Labor Act). Thus, the union's mere demand for the payment of an agency service fee implicates nonmembers' constitutional rights. Chicago Teachers Union, Local No. 1 v. Hudson, supra, 475...

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