Nashua Teachers Union v. Nashua School Dist., No. 96-263

CourtSupreme Court of New Hampshire
Writing for the CourtBRODERICK; BROCK, Chief Justice, and THAYER
Citation142 N.H. 683,707 A.2d 448
Docket NumberNo. 96-263
Decision Date23 March 1998
Parties, 157 L.R.R.M. (BNA) 2866 NASHUA TEACHERS UNION and another v. NASHUA SCHOOL DISTRICT and another.

Page 448

707 A.2d 448
142 N.H. 683, 157 L.R.R.M. (BNA) 2866
NASHUA TEACHERS UNION and another
v.
NASHUA SCHOOL DISTRICT and another.
No. 96-263.
Supreme Court of New Hampshire.
March 23, 1998.

Page 449

Krasner Professional Association, Farmington (Emmanuel Krasner, on the brief and orally), for plaintiffs.

Brown, Olson & Wilson, Concord (Bryan K. Gould, on the brief), and National Right to Work Legal Defense Foundation, Inc., Springfield, VA (John C. Scully, orally), for defendant Russell Ober.

Steven R. Sacks, Concord, Staff Attorney, by brief, for NEA-New Hampshire, as amicus curiae.

Cook & Molan, P.A., Concord (Glenn R. Milner, on the brief), for Professional Firefighters of New Hampshire, as amicus curiae.

BRODERICK, Justice.

Defendant Russell Ober appeals an order of the Superior Court (Hampsey, J.) holding that compulsory agency fees imposed on non-union public employees pursuant to a collective bargaining agreement are lawful. We affirm.

The plaintiffs, Nashua Teachers Union (NTU) and Hudson Federation of Teachers (HFT), are the exclusive collective bargaining representatives for certain employees of the defendant Nashua and Hudson school districts. Defendant Russell Ober is an employee of the Hudson School District but is not a member of the HFT. Both plaintiffs negotiated collective bargaining agreements (CBAs) with their respective school districts that required all employees in their bargaining units to pay an agency fee to the union, regardless of whether they were union members. Agency fees are assessments that non-union employees pay their collective bargaining representative to defray the costs associated with exclusive representation and collective bargaining. See State Employees' Ass'n v. Mills, 115 N.H. 473, 478, 344 A.2d 6, 11 (1975); Abbott v. State of New Hampshire & a., No. 84-22 (PELRB March 9, 1984).

Ober's agency fee was collected by means of involuntary payroll deductions, without his authorization. He challenged the involuntary deductions by filing a wage claim with the department of labor which ruled that such deductions are unlawful. The plaintiffs then filed a joint petition for declaratory judgment with the superior court seeking a

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ruling that mandatory payment of agency fees is lawful and that involuntary deduction of such fees from wages does not violate State law. The court held that compulsory agency fees negotiated as part of a public sector CBA are lawful but that involuntary payroll deductions as a means of collecting them violated RSA 275:48 (1996). Ober appeals, arguing that (1) compulsory agency fees in the public sector negotiated without explicit statutory authorization violate his rights under the first amendment to the United States Constitution, and (2) imposition of agency fees violates RSA 273-A:5, I(c) (1987) because it "encourages" union membership.
I

We first address Ober's contention that compulsory agency fees in the public sector not explicitly authorized by statute impermissibly infringe upon his first amendment rights. Ober relies on Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), to argue that the compulsory agency fee provisions in this case are unlawful.

In Abood, the Supreme Court examined public sector compulsory agency fees to determine whether they "violate the constitutional rights of government employees...." Id. at 211, 97 S.Ct. at 1787. The issue arose under a Michigan statute that explicitly authorized such fees. Id. The Court acknowledged that compelled financial support of an exclusive collective bargaining representative has an impact upon an employee's first amendment interests. Id. at 222, 97 S.Ct. at 1792-93. The Court held, however, that under the exclusive union representation system of labor relations created by the Michigan legislature, agency fees could be constitutionally justified by "the legislative assessment" of their importance in promoting labor peace by discouraging "free riding" of non-union employees. Id. at 221-25, 97 S.Ct. at 1792-94. Although Abood involved a state statute that explicitly sanctioned the assessment of agency fees, we do not read 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 state statute authorizing agency fees), aff'd, 645 A.2d 568 (Del.1994). We interpret Abood also to permit agency fees in the public sector where the legislature has implicitly authorized them by statute as part of an overall legislative scheme to promote labor peace through mandatory collective bargaining. Such is the case in New Hampshire.

After examining the statutory scheme of RSA chapter 273-A, its statutory predecessor, and relevant case law, we hold that agency fees are statutorily authorized as a proper subject of negotiation under RSA 273-A:3, I (1987). See RSA 273-A:1, XI (1987) (defining "terms and conditions of employment"); see also Cheever v. Southern N.H. Regional Med. Ctr., 141 N.H. 589, 590-91, 688 A.2d 565, 566-67 (1997) ("this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole" (quotations omitted)). Not only are such fees consistent with the legislative purpose of promoting harmonious labor relations through mandatory collective bargaining but they also play a valuable role in ensuring labor peace. See South Down Recreation Assoc. v. Moran, 141 N.H. 484, 487, 686 A.2d 314, 316 (1996) ("Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme." (Quotations omitted.)). The public interest served by the assessment of agency fees outweighs any infringement they may impose on a public employee's first amendment rights. See Abood, 431 U.S. at 221-25, 97 S.Ct. at 1792-94. Therefore, negotiated, compulsory agency fees in the public sector are constitutional and may be assessed to finance collective bargaining, contract administration, and grievance adjustment.

Under RSA 273-A:3, I, collective bargaining between a public employer and an exclusive representative of an employee bargaining unit is mandatory. The State legislature broadly defined the scope of matters subject to collective bargaining to include "wages,

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hours and other conditions of employment," RSA 273-A:1, XI, and specifically identified matters it wished to exclude from the collective bargaining process, see, e.g., id. ("managerial policy"); RSA 273-A:3, III (1987) (matters concerning policies and practices of merit systems). There is no statutory language excluding agency fees as a proper subject of bargaining. Cf. Tremblay v. Berlin Police Union, 108 N.H. 416, 422, 237 A.2d 668, 672 (1968) (upholding union shop clause in CBA because, inter alia, no State law prohibited union shops) (decided under prior law); Town of N. Kingstown v. North Kingstown Teach. Ass'n, 110 R.I. 698, 297 A.2d 342, 345-46 (1972) (upholding agency fee provision in CBA despite lack of statute explicitly authorizing agency fees). To the contrary, since agency fees are...

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