Branch v. Commonwealth Employment Relations Board

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12603

BEN BRANCH & others1 vs. COMMONWEALTH EMPLOYMENT RELATIONS

BOARD & others.2

Suffolk. January 8, 2019. - April 9, 2019.

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

Kafker, JJ.

Constitutional Law, Union, Freedom of association. Voluntary

Association, Labor union. Labor, Union agency fee, Fair

representation by union, Public employment. Moot Question.

Commonwealth Employment Relations Board.

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.

1 William Curtis Conner, Jr.; Deborah Curran; and Andre

Melcuk.

2 Massachusetts Society of Professors, MTA/NEA; Hanover

Teachers Association, MTA/NEA; and Professional Staff Union,

MTA/NEA, interveners.

2

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.

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

3

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

4

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

3 We acknowledge the amicus briefs submitted in support of

the employees by the Pacific Legal Foundation, National

Federation of Independent Business Small Business Legal Center,

and Mackinac Center for Public Policy; and by the Pioneer

Institute, Inc.; and the amicus briefs submitted in support of

the Commonwealth Employment Relations Board and the interveners

by twenty-six labor law professors and by the Massachusetts AFL-

CIO.

4 Two of the employees are faculty members represented by

the Massachusetts Society of Professors (MSP), one is a

university employee represented by the Professional Staff Union

(PSU), and one is a middle school teacher represented by the

Hanover Teachers Association (HTA). These three unions are

affiliates of the Massachusetts Teachers Association (MTA). The

MTA in turn is an affiliate of the National Education

Association. The agency fee requests at issue in this case were

imposed by the various unions, with the exception of the HTA.

5

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

5 General Laws c. 150E, § 12, provides, in relevant part,

that nonunion members may be required to pay "a service fee

[(i.e., agency fee)] to the employee organization" when the

"collective bargaining agreement requiring its payment as a

condition of employment has been formally executed, pursuant to

a vote of a majority of all employees in such bargaining unit

present and voting." Section 12 further provides that the

amount of the service fee shall be equal to membership dues,

provided that the employee organization has a procedure to

provide a rebate for political, ideological, or other expenses

"not germane to the [organization's] governance or duties as

bargaining agent." Finally, § 12 provides that "[i]t shall be a

prohibited labor practice for an employee organization or its

affiliates to discriminate against an employee on the basis of

the employee's membership, nonmembership or agency fee status in

the employee organization or its affiliates."

6 One of the employees had earlier filed a charge

challenging the calculation of the amount of his agency fee.

The employee subsequently filed an amended charge that rescinded

his earlier allegation and raised a challenge to the validity of

the agency fee that was identical to that raised by the other

three employees.

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

7 Under G. L. c. 150E, § 10 (a) (1) and (3), it is a

prohibited practice for a public employer to "[i]nterfere,

restrain, or coerce any employee in the exercise of any right

guaranteed under this chapter" or to "[d]iscriminate in regard

to hiring, tenure, or any term or condition of employment to

encourage or discourage membership in any employee

organization." Under G. L. c. 150E, § 10 (b) (1), it is a

prohibited practice for a union to "[i]nterfere, restrain, or

coerce any employer or employee in the exercise of any right

guaranteed under this chapter."

8 The employees claimed that the agency fee provision was

facially unconstitutional because it required them to (1)

support the unions' political beliefs despite their opposition

to those beliefs; and (2) affirmatively object to challenge the

amount of the fee. They also claimed that the requirement that

they affirmatively object to the imposition of an agency fee was

unconstitutional as applied.

7

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

9 General Laws c. 150E, § 5, provides that the "exclusive

representative shall have the right to act for and negotiate

agreements covering all employees in the unit and shall be

responsible for representing the interests of all such employees

without discrimination and without regard to employee

organization membership."

10The employees submitted affidavits on their own behalf,

as well as from four experts. The unions moved to strike these

affidavits and, when this motion was denied, submitted

counteraffidavits. The investigator admitted the employees'

affidavits and those of two of the experts. She excluded some

portions of the unions' affidavits and the employees' other two

expert affidavits on the grounds that they were not relevant to

agency fee procedures in Massachusetts. We decline to disturb

the investigator's evidentiary ruling with respect to the

employees' expert affidavits. See Maddocks v. Contributory

Retirement Appeal Bd., 369 Mass. 488, 498 (1976) (court will not

overturn agency's discretionary exclusion of evidence absent

"denial of substantial justice").

8

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

9

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

challenges to the imposition of agency fees and the manner of

their collection should be vacated and dismissed as moot.11 We

11The intervener unions argue that we lack jurisdiction to

decide the employees' constitutional challenges because the

employees brought them before an administrative agency rather

than through seeking a declaratory judgment in the Superior

Court. We disagree. The instant case did not just raise a

direct challenge to the constitutionality of the agency fee

provision of G. L. c. 150E, § 12. Instead, it required the

Department of Labor Relations (DLR) to apply multiple statutory

requirements consistent with its understanding of constitutional

law and to draw on its own expert knowledge of labor relations

practices and procedures in deciding the questions before it.

As explained by the DLR investigator, while the charges

presented facial challenges to the constitutionality of the

agency fee and exclusive representation provisions in G. L.

c. 150E, they also "raised allegations . . . that the service

fees demanded violate specific provisions of [G. L. c. 150E],

i.e. that prohibiting non-members from joining a union

negotiating team, while simultaneously requiring service fees,

violates [G. L. c. 150E, § 10 (b) (1),] by coercing employees in

the exercise of their rights to non-membership; and that the

employers' agreement to a contractual service fee provision

violated [§ 10 (a) (3)]." In deciding these issues the DLR was

required to "apply [§ 12] . . . constitutionally, using

10

decisions of the United States Supreme Court to guide its

construction of [G. L. c. 150E]," and to resolve "factual issues

that are appropriate for the agency's consideration, i.e. the

extent to which the unions allow or prohibit fee payers from

participating in the negotiations process."

We conclude that the DLR correctly assumed jurisdiction

here for the reasons it stated. In the course of their

adjudications, agencies must "decide questions of law,

including, at times, questions of constitutional law." Temple

Emanuel of Newton v. Massachusetts Comm'n Against

Discrimination, 463 Mass. 472, 483 (2012). "Although an agency

cannot decide an ultimate constitutional issue [regarding the

legality of its statute], the question remains whether such an

issue must nonetheless be brought before it to inform the

agency's resolution of the statutory and regulatory questions it

must consider and to draw on its specialized expertise for

necessary fact finding." Maher v. Justices of the Quincy Div.

of the Dist. Court Dep't, 67 Mass. App. Ct. 612, 619 (2006).

With the benefit of an agency's factual determinations,

understanding of its regulated industry, and statutory

construction, a court can then decide whether the agency's

determinations were made in compliance with or "[i]n violation

of constitutional provisions." G. L. c. 30A, § 14. See, e.g.,

Selectmen of Framingham v. Civil Serv. Comm'n, 366 Mass. 547,

554 (1974) (emphasizing that Civil Service Commission "will need

to take up and consider the factual matters underlying the issue

of the constitutional validity of the regulation since these

matters are here intrinsic to a decision as to 'just cause'"

even though "the ultimately controlling decision of a

constitutional issue is for the courts"). Although not directly

argued below, the instant case also depends on an interpretation

of the duty of fair representation, which involves the special

expertise of the DLR. "As a matter of promoting proper

relationships between the courts and administrative agencies,

strong policies support the primary jurisdiction of the [DLR]

over cases involving the duty of fair representation." Leahy v.

Local 1526, Am. Fed'n of State, County, & Mun. Employees, 399

Mass. 341, 349 (1987).

A different question would be presented if this case were

only presenting a challenge to the constitutionality of enabling

legislation. Cf. Doe, Sex Offender Registry Bd. No. 10800 v.

Sex Offender Registry Bd., 459 Mass. 603, 630-631 (2011) (court

without jurisdiction to hear constitutional challenge to

agency's enabling statute and implementing regulations when

11

agree with the board, and thus vacate that portion of the

board's decision as moot.

It is a "general rule that courts decide only actual

controversies . . . and normally do not decide moot cases."

Boston Herald, Inc. v. Superior Court Dep't of the Trial Court,

421 Mass. 502, 504 (1995). "[L]itigation is considered moot

when the party who claimed to be aggrieved ceases to have a

personal stake in its outcome." Bronstein v. Board of

Registration in Optometry, 403 Mass. 621, 627 (1988).12 A moot

first brought on appeal from agency decision rather than in

declaratory judgment action in court). If after Janus v.

American Fed'n of State, County, & Mun. Employees, Council 31,

138 S. Ct. 2448, 2486 (2018), had been decided, the employees

had simply brought a declaratory judgment action seeking a

declaration that G. L. c. 150E, § 12, was unconstitutional, such

an action should have been brought in the Superior Court. The

multifaceted challenge here is different and requires

administrative review in the first instance. See Gurry v. Board

of Pub. Accountancy, 394 Mass. 118, 126 (1985) ("Except for

jurisdictional claims based upon constitutional challenges to an

agency's enabling legislation, litigants involved in

adjudicatory proceedings should raise all claims before the

agency, including those which are constitutionally based").

See, e.g., Seagram Distillers Co. v. Alcoholic Beverages Control

Comm'n, 401 Mass. 713, 724 (1988) (facial and as applied

constitutional challenges to statute "not raised before the

commission and we therefore decline to consider them here for

the first time"). See also, e.g., McCormick v. Labor Relations

Comm'n, 412 Mass. 164, 169-170 (1992) (relying on Seagram

Distillers Co., supra, to conclude that party raising First

Amendment challenge to validity of agency fee waived that

challenge by not raising it before Labor Relations Commission).

We thus conclude that the DLR correctly determined that it

had jurisdiction.

12 "The mootness doctrine applies to judicial review of

administrative decisions as well as to appellate review of lower

12

case is one where a court can order "no further effective

relief." Lawyers' Comm. for Civ. Rights & Economic Justice v.

Court Adm'r of the Trial Court, 478 Mass. 1010, 1011 (2017).

Here, the unions presented affidavits13 demonstrating that

they did not collect any agency fees from the employees while

their complaints were pending, stopped collecting agency fees

entirely in anticipation of Janus, and no longer collected

agency fees from nonmembers once Janus was issued in order to

comply with the decision.14 Furthermore, both the Attorney

court decisions." International Marathons, Inc. v. Attorney

Gen., 392 Mass. 376, 380 (1984).

13To determine whether a case has become moot while it is

on appeal, we may consider evidence introduced by the parties in

the form of affidavits. Doe v. Superintendent of Sch. of

Worcester, 421 Mass. 117, 123 (1995), citing Hubrite Informal

Frocks, Inc. v. Kramer, 297 Mass. 530, 532–533 (1937)

("Affidavits are the proper way to raise a question of

mootness").

14To comply with the prohibition on the collection of

agency fees announced in Janus, 138 S. Ct. at 2486, the general

counsel of the MTA sent letters to its local affiliates on April

25 and May 2, 2018, instructing them to stop collecting agency

fees preemptively as of June 1, 2018, in the event that "the

collection of agency fees is declared unconstitutional."

Following the issuance of Janus on June 27, 2018, the MTA

informed its affiliates that they may "no longer deduct agency

fees from a nonmember's wages" and processed a "bulk

cancellation" of agency fees. Furthermore, the presidents of

the affiliate unions involved in this case (i.e., the MSP, PSU,

and HTA) stated that, on account of Janus, they no longer

collect agency fees. Additionally, in November 2018, the MTA

executive committee approved the removal of any reference to

"agency service fees" from its bylaws.

13

General and the DLR issued guidance explaining that Janus

prohibits public employers and 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.15

And, as mentioned, the unions and employers concede that they

are bound by Janus. In light of these significant steps by the

unions and the unequivocal legal guidance issued by the relevant

agencies, we are not persuaded by the employees' claim that

there is "no reason to expect any change" in the challenged

conduct involving agency fees.16 Nor is this the exceptional

15See Department of Labor Relations, Question and Answer

Regarding Impacts of Janus v. American Federation of State,

County, and Municipal Employees, Council 31, https://www.mass

.gov/service-details/dlr-qa-re-janus-v-american-fed-of-state-

cty-muni-employees [https://perma.cc/XG43-Z9DW] ("The Janus

decision makes it unlawful for public sector employers or unions

to require that an employee who is not a voluntary dues paying

union member to pay an agency fee to a union as a condition of

obtaining employment or continued employment" and any "agency

shop arrangements contained in collective bargaining agreements

are invalidated"); Office of the Attorney General, Attorney

General Advisory: Affirming Labor Rights and Obligations in

Public Workplaces, https://www.mass.gov/files/documents/2018

/07/03/Attorney%20General%20Advisory%20-%20Rights%20of%20Public

%20Sector%20Employees%20%287-3%29.pdf [https://perma.cc/74LP-

EVMF] ("Under Janus, public employers may not deduct agency fees

from a nonmember's wages, nor may a union collect agency fees

from a nonmember, without the employee's affirmative consent").

16A defendant whose voluntary conduct renders a case moot

must satisfy a "heavy burden of showing that there is no

reasonable expectation that the wrong will be repeated; and a

defendant's mere assurances on this point may well not be

sufficient." Cantell v. Commissioner of Correction, 475 Mass.

745, 753 n.16 (2016), quoting Wolf v. Commissioner of Pub.

Welfare, 367 Mass. 293, 299 (1975). This burden may be met by a

14

case where we exercise our discretion to decide a moot case.17

Because no agency fee demands are currently being made on the

employees, and because any such demands are not likely to recur,

there is no "actual controvers[y]" for the court to decide and

no "effective relief" for it to order. Murphy v. National Union

Fire Ins. Co., 438 Mass. 529, 533 (2003). See Lawyers' Comm.

policy change by an administrative agency or by other change in

conduct to comply with the law. See Bronstein v. Board of

Registration in Optometry, 403 Mass. 621, 626-627 (1988) (case

moot where administrative board agreed not to enforce order that

was no longer in compliance with amended statute); Buchannan v.

Superintendent of Mass. Correctional Inst. at Concord, 9 Mass.

App. Ct. 545, 548-550 (1980) (case moot where bulletin issued by

Department of Correction addressed challenged correctional

practice and issuance of bulletin suggested defendants did not

"cease[] their allegedly wrongful conduct in order to escape

review"). See also Danielson v. Inslee, 345 F. Supp. 3d 1336,

1339 (W.D. Wash. 2018) (post-Janus challenge to mandatory agency

fee law moot because it was "improbable that the State will

renege on a policy it has justified by legal precedent").

17We have discretion to decide a moot case where the issue

is one of "significant public importance, and there appears to

be some uncertainty about it," or "where the parties have fully

briefed and argued the issues of a case, and . . . the issues

are capable of repetition, yet evading review" (quotation and

citations omitted). Commonwealth v. McCulloch, 450 Mass. 483,

486 (2008). Here, there is no uncertainty that Janus forbids

the collection of agency fees from nonconsenting bargaining unit

members who are not in a union. See Ladley vs. Pennsylvania

State Educ. Ass'n, No. CI-14-08552, slip op. at 23 (Pa. Ct. Com.

Pl. Oct. 29, 2018) (declining to decide moot post-Janus agency

fee challenge on public interest grounds because no need for

court to create "guideposts for future conduct or action"

[citation omitted]). Nor is the issue one that is likely to

evade review should it arise again: the challenged issue "is

one of law" that would likely receive immediate judicial review

and rebuke if a union sought to impose an agency fee despite

Janus. Ott v. Boston Edison Co., 413 Mass. 680, 684 (1992).

15

for Civ. Rights & Economic Justice, 478 Mass. at 1011. We

therefore hold that the unions' cessation of agency fee

collection to comply with Janus and the issuance by the Attorney

General and the DLR of guidance categorically prohibiting their

collection has rendered moot the employees' challenge to the

agency fee provisions of G. L. c. 150E.18

3. Constitutionality of exclusive representation. The

employees also challenge the constitutionality of their unions'

exclusive representation of their employees in collective

bargaining, claiming that exclusive representation compels them

to associate with the unions in violation of the First

Amendment.19 We conclude that, under controlling Supreme Court

18This conclusion accords with those of other courts that

have dismissed challenges to the constitutionality of State

agency fee laws on mootness grounds following the issuance of

Janus and the corresponding cessation in the collection of

agency fees by public sector unions. See Danielson, 345 F.

Supp. 3d at 1339-1340; Danielson v. American Fed'n of State,

County, & Mun. Employees, Council 28, AFL-CIO, 340 F. Supp. 3d

1083, 1084 (W.D. Wash. 2018); Lamberty vs. Connecticut State

Police Union, U.S. Dist. Ct., No. 3:15-cv-378 (D. Conn. Oct. 19,

2018); Yohn vs. California Teachers' Ass'n, U.S. Dist. Ct., No.

SACV 17-202-JLS-DEM (C.D. Cal. Sept. 28, 2018); Ladley, supra.

19The unions argue that the employees' exclusive

representation challenge is not properly before this court

because the employees failed to raise it below. Specifically,

they point out that the employees' charges were addressed to

G. L. c. 150E, § 12, the agency fee provision, and not to the

exclusive representation provisions of G. L. c. 150E. Yet the

investigator's decision addressed the employees' "challenge [to]

the concept of exclusive representation as a burden on their

[First] Amendment right of association." The employees then

appealed to the board from the investigator's conclusion that

16

precedent, neither the exclusive representation provisions of

G. L. c. 150E nor the unions' internal policies and procedures

barring nonmembers from various collective bargaining activities

violate the First Amendment.

General Laws c. 150E, § 4, provides that "[p]ublic

employers may recognize an employee organization designated by

the majority of the employees in an appropriate bargaining unit

as the exclusive representative of all the employees in such

unit for the purpose of collective bargaining." In turn, G. L.

c. 150E, § 5, provides that the "exclusive representative shall

have the right to act for and negotiate agreements covering all

employees in the unit and shall be responsible for representing

the interests of all such employees without discrimination and

without regard to employee organization membership." We have

explained that the "exclusive representation concept" is "a

basic building block of labor law policy under G. L. c. 150E."

Service Employees Int'l Union, AFL-CIO, Local 509 v. Labor

Relations Comm'n, 431 Mass. 710, 714–715 (2000). The same is

true under Federal labor relations law.20

"[e]xclusive representation, pursuant to G. L. c. 150E §§ 4

[and] 5, is constitutional." We thus conclude that the issue

was sufficiently raised below.

20The National Labor Relations Act (NLRA) provides that

"[r]epresentatives designated or selected for the purposes of

collective bargaining by the majority of the employees in a unit

appropriate for such purposes, shall be the exclusive

17

Our analysis of exclusive representation is guided by an

uninterrupted line of decisions in which the Supreme Court has

affirmed its "long and consistent adherence to the principle of

exclusive representation tempered by safeguards for the

protection of minority interests" provided by the duty of fair

representation. Emporium Capwell Co. v. Western Addition

Community Org., 420 U.S. 50, 65 (1975). Exclusive

representation, as the Supreme Court has explained, is necessary

to effectively and efficiently negotiate collective bargaining

agreements and thus promote peaceful and productive labor-

management relations. See, e.g., National Labor Relations Bd.

v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967) ("National

representatives of all the employees in such unit for the

purposes of collective bargaining in respect to rates of pay,

wages, hours of employment, or other conditions of employment."

29 U.S.C. § 159(a). For cases discussing exclusive

representation under the NLRA, see, e.g., 14 Penn Plaza LLC v.

Pyett, 556 U.S. 247, 270–271 (2009), quoting Emporium Capwell

Co. v. Western Addition Community Org., 420 U.S. 50, 62 (1975)

("In establishing a regime of majority rule, Congress sought to

secure to all members of the [bargaining] unit the benefits of

their collective strength and bargaining power, in full

awareness that the superior strength of some individuals or

groups might be subordinated to the interest of the majority");

Vaca v. Sipes, 386 U.S. 171, 191 (1967) (discussing importance

of exclusive representation in grievance arbitration context);

Steele v. Louisville & Nashville R.R., 323 U.S. 192, 200-201

(1944) (describing exclusive representation under NLRA); J.I.

Case Co. v. National Labor Relations Bd., 321 U.S. 332, 338-339

(1944) (under NLRA, employer must bargain with exclusive

representative, rather than individually with employees, because

"the majority rules" and to allow individual negotiations would

"prove . . . disruptive of industrial peace).

18

labor policy has been built on the premise that by pooling their

economic strength and acting through a labor organization freely

chosen by the majority, the employees of an appropriate unit

have the most effective means of bargaining for improvements in

wages, hours, and working conditions. The policy therefore

extinguishes the individual employee's power to order his own

relations with his employer and creates a power vested in the

chosen representative to act in the interests of all

employees"). See also Carlson, The Origin and Future of

Exclusive Representation in American Labor Law, 30 Duq. L. Rev.

779, 780 (1992) ("Majority-rule based exclusivity bolsters a

union's bargaining position, legitimizes its complete control

over employee bargaining within a unit and, even from the

employer's perspective, simplifies the bargaining process.

Collective bargaining on any other basis faces considerable

practical difficulties" [footnote omitted]).21

21For discussions of the policy rationales for exclusive

representation, see, e.g., Janus, 138 S. Ct. at 2465 (discussing

how exclusive representation serves "compelling state interest"

in "labor peace" [citation omitted]); Perry Educ. Ass'n v. Perry

Local Educators' Ass'n, 460 U.S. 37, 38-39, 52 (1983) (rejecting

First Amendment challenge to term in collective bargaining

agreement restricting use of interschool mail system to

exclusive representative because "exclusion of the rival union

may reasonably be considered a means of insuring labor-peace

within the schools"); Vaca, 386 U.S. at 191 (explaining that if

individual employees could bypass collective bargaining

agreement with respect to grievance arbitration "the settlement

machinery provided by the contract would be substantially

undermined, thus destroying the employer's confidence in the

19

In particular, our analysis of the constitutionality of

exclusive representation is informed by Knight v. Minnesota

Community College Faculty Ass'n, 460 U.S. 1048 (1983) (Knight

I); Minnesota State Board for Community Colleges v. Knight, 465

U.S. 271 (1984) (Knight II); and Janus itself. In the two

Knight decisions and Janus, the majority and the dissents alike

recognized and respected the importance of exclusive

representation in the collective bargaining process, at least in

the negotiation of the terms and conditions of employment.

In Knight I, 460 U.S. at 1048, a case involving faculty at

State community colleges, the Supreme Court summarily affirmed

the portion of the lower court's decision concluding that it was

constitutional to limit collective bargaining sessions (known as

"meet and negotiate" sessions) regarding the terms and

conditions of employment to the faculty's exclusive

representative. See Knight II, 465 U.S. at 279 ("The Court's

union's authority and returning the individual grievant to the

vagaries of independent and unsystematic negotiation"); Medo

Photo Supply Corp. v. National Labor Relations Bd., 321 U.S.

678, 685 (1944) ("orderly collective bargaining requires that

the employer be not permitted to go behind the designated

representatives, in order to bargain with the employees

themselves"). See also Matter of Houde Engineering Corp. &

United Auto. Workers Fed. Labor Union No. 18839, 1 N.L.R.B. 35,

40 (1934) (exclusive representation provision of Federal law

designed to stop employers from exploiting "differences within

the ranks" of employees); Carlson, The Origin and Future of

Exclusive Representation in American Labor Law, 30 Duq. L. Rev.

779, 814 (1992) ("Without exclusivity, employee factions would

inevitably make conflicting proposals and demands").

20

summary affirmance . . . rejected the constitutional attack on

[the State statute's] restriction to the exclusive

representative of participation in the 'meet and negotiate'

process"). In summarily affirming the lower court, it thus

appeared noncontroversial to the Court to limit collective

bargaining regarding the terms and conditions of employment to

the exclusive representative and to recognize the

"constitutionality of exclusive representation bargaining in the

public sector." Knight v. Minnesota Community College Faculty

Ass'n, 571 F. Supp. 1, 4 (D. Minn. 1982), aff'd in part, 460

U.S. 1048 (1983). This decision is in line with earlier Supreme

Court decisions that recognize and respect the need for an

exclusive bargaining representative. See Emporium Capwell Co.,

420 U.S. at 65. See also notes 20 and 21, supra (citing cases).

In Knight II, 465 U.S. at 292, the Court extended the right

of exclusive representation to "meet and confer" sessions with

the employer regarding university governance and academic

matters outside the scope of the mandatory bargaining that took

place in the "meet and negotiate" sessions deemed constitutional

in Knight I. Although Knight II, supra at 288, presented a more

difficult question than exclusive representation in the

collective bargaining context, and one that divided the Court,

the majority held that the nonmembers' "speech and associational

rights . . . [had] not been infringed" even by this type of

21

government-imposed exclusive representation. Specifically, the

Court observed that exclusive representation was constitutional

because the First Amendment creates no "government obligation to

listen" to particular voices on policy questions, and the

State's right to designate the faculty union as the exclusive

representative for the "meet and confer" sessions (as well as

the "meet and negotiate" sessions) was within its inherent right

to "choose its advisers." Id. at 288 & n. 10.

The Court further explained that such exclusive

representation did not impair the nonmember employees'

associational freedoms, as the nonmembers were "not required to

become members of the [union]." Id. at 289. Although the

nonmembers "[might] well [have felt] some pressure to join the

exclusive representative" to gain a "voice" in the "meet and

confer" sessions, such pressure was "no different from the

pressure to join a majority party that persons in the minority

always feel." Id. at 289-290. This sort of pressure, the Court

explained, is inherent both in majority rule, which is a guiding

principle of "our system of government," and in the collective

bargaining process; as such, "it does not create an

unconstitutional inhibition on associational freedom." Id. at

290.

Janus, a challenge to the agency fee provision of a State

collective bargaining law, did not in any way question the

22

centrality of exclusive representation, at least in the

collective bargaining process. There, the Court "noted" that

exclusive representation provided the union with the "exclusive

right to speak for all the employees in collective bargaining"

and that the employer was "required by state law to listen to

and bargain in good faith with only that union." Janus, 138 S.

Ct. at 2467. Indeed, the Court expressly observed that it is

"not disputed that the State may require that a union serve as

exclusive bargaining agent for its employees," and that, with

the exception of laws permitting mandatory agency fees, "States

can keep their labor-relations systems exactly as they are."

Id. at 2478, 2485 n.27. See id. at 2489 (Kagan, J., dissenting)

("The majority does not take issue with the [concept of

exclusive representation]"). And the Court assumed that "labor

peace," defined as the avoidance of "the conflict and

disruption" that would occur if employees were "represented by

more than one union," was a "compelling state interest," but

that mandatory agency fees were not "inextricably linked" to

such peace (citation omitted). Id. at 2465. It was this

"compelling state interest" that apparently justified the

"significant impingement on associational freedoms that would

not be tolerated in other contexts." Id. at 2478.22

22 This conclusion accords with those of other courts that

have rejected First Amendment challenges to the

23

constitutionality of exclusive representation provisions of

State public sector collective bargaining laws, including a

previous challenge to G. L. c. 150E. See D'Agostino v. Baker,

812 F.3d 240, 243 (1st Cir.), cert. denied, 136 S. Ct. 2473

(2016) (Justice Souter, writing for court and rejecting First

Amendment challenge to G. L. c. 150E on basis of Minnesota State

Board for Community Colleges v. Knight, 465 U.S. 271 [1984]

[Knight II], reasoned, "Since non-union professionals, college

teachers, could claim no violation of associational rights by an

exclusive bargaining agent speaking for their entire bargaining

unit when dealing with the state even outside collective

bargaining, the same understanding of the First Amendment should

govern the position taken by the [appellants] here, whose

objection goes only to bargaining representation"). See also

Mentele v. Inslee, 916 F.3d 783, 789 (9th Cir. 2019) (holding,

on basis of Knight II, that State's "authorization of an

exclusive bargaining representative does not infringe" on First

Amendment rights of nonunion members); Bierman v. Dayton, 900

F.3d 570, 574 (8th Cir. 2018) (home care providers' argument

that their First Amendment rights were violated by compelled

association with their exclusive representative "foreclosed by

[Knight II]"); Hill v. Service Employees Int'l Union, 850 F.3d

861, 864 (7th Cir.), cert. denied, 138 S. Ct. 446 (2017) (Knight

II "forecloses . . . argument" of home health care and child

care providers that exclusive representation creates "mandatory

association" subject to heightened First Amendment scrutiny);

Jarvis v. Cuomo, 660 Fed. Appx. 72, 74 (2d Cir. 2016), cert.

denied, 137 S. Ct. 1204 (2017) (child care providers' argument

that their First Amendment rights were violated by compelled

association with their exclusive representative "foreclosed" by

Knight II); Thompson vs. Marietta Education Ass'n, U.S. Dist.

Ct., No. 2:18-cv-628 (S.D. Ohio Jan. 14, 2019) (Knight II

"forecloses" high school Spanish teacher's First Amendment

challenge to exclusive representation provision of State

statute); Reisman vs. Associated Faculties of the Univ. of Me.,

U.S. Dist. Ct., No. 1:18-cv-00307-JDL (D. Me. Dec. 3, 2018)

("binding precedent" of Knight II "forecloses" faculty member's

First Amendment challenge to exclusive representation provision

of State collective bargaining law); Uradnik vs. Inter Faculty

Org., U.S. Dist. Ct., No. 18-1895 (PAM/LIB) (D. Minn. Sept. 27,

2018), aff'd, U.S. Ct. App., No. 18-3086 (8th Cir. Dec. 3, 2018)

(Knight II "foreclose[s]" faculty member's First Amendment

challenge to exclusive representation provision of State

collective bargaining law).

24

Janus and the other Supreme Court cases have thus not

questioned the constitutionality of exclusive representation.

The Court has, however, inextricably coupled exclusive

representation with a union's duty of fair representation. See,

e.g., Janus, 138 S. Ct. at 2469 (duty of fair representation "is

a necessary concomitant of the authority that a union seeks when

it chooses to serve as the exclusive representative of all the

employees in a unit"). As the exclusive representative of both

members and nonmembers, the union has a duty "fairly to

represent all [employees in the bargaining unit], both in its

collective bargaining with [the employer] . . . and in its

enforcement of the resulting collective bargaining agreement."

Vaca v. Sipes, 386 U.S. 171, 177 (1967).23

The focus of this duty in the negotiating context has not

been on input but on output, i.e., on the results of the

collective bargaining process. Most significantly, the "union

may not negotiate a collective-bargaining agreement that

23The Supreme Court has stated that "constitutional

questions [would] arise" regarding the legitimacy of exclusive

representation in the absence of the duty of fair

representation. Steele, 323 U.S. at 198. In Massachusetts,

that duty is codified by statute. See G. L. c. 150E, § 5

(exclusive representative required to "represent[] the interests

of all . . . employees without discrimination and without regard

to employee organization membership"). See also Leahy, 399

Mass. at 348 ("even if the Massachusetts statute did not provide

for the duty of fair representation, the courts would infer it

as a constitutional requirement").

25

discriminates against nonmembers." Janus, 138 S. Ct. at 2468.

Cf. Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953) ("mere

existence of . . . differences" in way that "negotiated

agreement affect[s] individual employees and classes of

employees" will not violate duty of fair representation so long

as differences are reasonable and negotiated in good faith). By

contrast, the duty of fair representation has not been found to

apply to how the union selects its negotiators and develops its

proposals. See National Labor Relations Bd. v. Financial Inst.

Employees of Am., Local 1182, Chartered by United Food &

Commercial Workers Int'l Union, AFL-CIO, 475 U.S. 192, 205

(1986) (Financial Inst. Employees), quoting Allis-Chalmers Mfg.

Co., 388 U.S. at 191 (explaining that union may "select union

officers and bargaining representatives" without input of

nonmembers because "[n]on-union employees have no voice in the

affairs of the union"); Standard Fittings Co. v. National Labor

Relations Bd., 845 F.2d 1311, 1319 (5th Cir. 1988), citing

Financial Inst. Employees, supra (duty of fair representation

does not give nonmembers right to "ratify a collective-

bargaining agreement or select union officers and bargaining

representatives"); Branch 6000, Nat'l Ass'n of Letter Carriers

v. National Labor Relations Bd., 595 F.2d 808, 811 (D.C. Cir.

1979) ("non-union employees properly may be excluded" from

processes of formulating union's negotiating position without

26

violating duty of fair representation). See also Southern

Worcester County Reg'l Vocational Sch. Dist. v. Labor Relations

Comm'n, 377 Mass. 897, 904 (1979) ("selection of the union

negotiating team [is] an internal union matter"); George v.

Local Union No. 639, Int'l Bhd. of Teamsters, Chauffeurs,

Warehousemen & Helpers of Am., AFL-CIO, 100 F.3d 1008, 1010–

1011, 1014 (D.C. Cir. 1996) (union did not violate duty of fair

representation by not permitting member from serving on

negotiating committee or attending negotiating meetings); Sears

v. Automobile Carriers, Inc., 711 F.2d 1059 (6th Cir. 1983)

(unpublished) (union did not commit breach of duty of fair

representation by removing member from negotiating committee);

Bass v. International Bhd. of Boilermakers, 630 F.2d 1058, 1063

(5th Cir. 1980) ("internal union decisions" are "not

circumscribed by the constraints of the [duty of fair

representation]"); Matter of Phalen v. Theatrical Protective

Union No. 1, Int'l Alliance of Theatrical & Stage Employees,

A.F.L.-C.I.O., 22 N.Y.2d 34, 44, cert. denied, 393 U.S. 1000

(1968) ("an action for breach of the duty of fair representation

by one who has been discriminated against, although it may

afford him an important remedy, is no substitute for democratic

participation in the affairs of the union. Unless an individual

is a member of the union, he can have no voice in the selection

of its officers who are his representatives in the collective

27

bargaining process"). Cf. Anderson v. Commonwealth Employment

Relations Bd., 73 Mass. App. Ct. 908, 909 n.5 (2009) (union rule

that retired members could not vote on collective bargaining

agreements did not "violate[] the duty of fair representation"

because "the plaintiffs' voting claim" was "a purely internal

matter").

We now address the employees' contention that they are not

challenging exclusive representation "in the abstract," but only

insofar as the unions use exclusive representation to deprive

them of "a voice and a vote in their workplace conditions" with

respect to bargaining representatives, contract proposals, and

bargaining strategy unless they join the unions and support

their politics. We conclude that this argument is likewise

without merit.

As an initial matter, we address the employees' claim that

the unions are involved in "State action" for purposes of a

First Amendment challenge to their internal rules restricting

the participation of nonmembers in certain meetings or strategy

sessions. As then Circuit Judge Breyer, writing for the United

States Court of Appeals for the First Circuit, explained, the

"link between the union's [government-created] bargaining power

and its membership requirements is too distant to impose

constitutional restrictions." Hovan v. United Bhd. of

Carpenters & Joiners of Am., 704 F.2d 641, 645 (1st Cir. 1983).

28

He further concluded that, while exclusive representation is a

creature of statute, internal union rules not dictated by

statute do not constitute State action, and holding otherwise

"would radically change not only the legal, but the practical,

nature of the union enterprise." Id. at 642-643. Accord United

Steelworkers of Am., AFL-CIO-CLC v. Sadlowski, 457 U.S. 102,

104, 121 n.16 (1982) (union's adoption of "outsider rule"

prohibiting nonmembers from contributing to union elections did

not violate "nonmembers' constitutional rights of free speech

and free association" because "the union's decision to adopt an

outsider rule does not involve state action"); Kidwell v.

Transportation Communications Int'l Union, 946 F.2d 283, 299

(4th Cir. 1991), cert. denied, 503 U.S. 1005 (1992) (for

purposes of First Amendment challenge, "the internal membership

and procedural decisions of a union . . . , although having an

impact on those who may participate in the union's duties in

carrying out its role as collective bargaining representative,

do[] not constitute state action"); Turner v. Air Transport

Lodge 1984 of Int'l Ass'n of Machinists & Aerospace Workers,

AFL-CIO, 590 F.2d 409, 413 n.1 (2d Cir. 1978), cert. denied, 442

U.S. 919 (1979) (per curiam) (Mulligan, J., concurring) ("since

union constitutions and rules are formulated and enforced by the

union, a private entity, no federal constitutional right of free

speech is . . . involved"). While these cases involved private

29

sector unions, State action has been found lacking in the public

sector union context as well. See, e.g., Hallinan v. Fraternal

Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 817 (7th

Cir.), cert. denied, 558 U.S. 1049 (2009) ("Here, it was the

Union, rather than the employer, that barred the plaintiffs from

membership. And union actions taken pursuant to the

organization's own internal governing rules and regulations are

not state actions"); Harmon v. Matarazzo, 162 F.3d 1147 (2d

Cir.) (unpublished), cert. denied, 525 U.S. 1042 (1998) (police

officer's Federal civil rights claim against police union "not

actionable" because union "is not a state actor"); Messman v.

Helmke, 133 F.3d 1042, 1044 (7th Cir. 1998) ("a union's internal

governing rules usually are not subject to First Amendment

prohibitions"); Jackson v. Temple Univ. of the Commonwealth Sys.

of Higher Educ., 721 F.2d 931, 933 (3d Cir. 1983) (public

employee's Federal civil rights claim against union not

actionable where plaintiff failed "to set forth any facts

suggesting that the state was responsible for the Union or that

the Union was acting under color of state law in deciding not to

bring [his] grievance to arbitration"). We conclude that here

the link between exclusive representation and the unions'

membership requirements are likewise too attenuated to

constitute State action.

30

Moreover, even if we were to assume that the link between

statutorily required exclusive representation and union

membership requirements might be sufficient in certain

circumstances to satisfy the State action requirement, we would

still discern no constitutional problems. Employees in the

bargaining unit received a vote on whether to form their unions;

those opposed to having a union lost that vote. The "majority-

rule concept is . . . unquestionably at the center of our

federal labor policy," and hence the "complete satisfaction of

all who are represented is hardly to be expected" (citations

omitted). Allis-Chalmers Mfg. Co., 388 U.S. at 180. See

Emporium Capwell Co., 420 U.S. at 62 ("majority rule" is

"[c]entral to the policy of fostering collective bargaining").

Indeed, as the Court in Knight II, 465 U.S. at 290, observed,

majority rule is a fundamental aspect of American democratic

government. Those who lose elections often do not have

representatives speaking in favor of their personal policy

preferences, at least until the next election. Like these

members of the electorate, the employees have another chance to

vote: they can vote to decertify the union after a certain

period of time. See G. L. c. 150E, § 4. See also Watertown v.

Watertown Mun. Employees Ass'n, 63 Mass. App. Ct. 285, 291-292

(2005) (describing "the employees' right to select new union

31

representation" as "a collective bargaining right that is beyond

the arbitrator's powers" to penalize).

In the meantime, their inability to select bargaining

representatives or participate in bargaining sessions is a

consequence of losing the election regarding union

representation and choosing not to join the union after having

lost. This is an intended and expected feature of exclusive

representation. See Emporium Capwell Co., 420 U.S. at 62 (in

creating exclusive representation, Congress intended "regime of

majority rule" in which interests of some employees "might be

subordinated to the interest of the majority"). Hence,

"exclusive bargaining representation by a democratically

selected union does not, without more, violate the right of free

association on the part of dissenting non-union members of the

bargaining unit." D'Agostino v. Baker, 812 F.3d 240, 244 (1st

Cir.), cert. denied, 136 S. Ct. 2473 (2016).

Moreover, as discussed, conflicting representatives in

collective bargaining is not practicable: to have the employee

representatives speak with one voice at the bargaining table is

critical to the efficient resolution of labor-management

disputes and protects the bargaining unit employees from divide-

and-conquer tactics by employers. See note 21, supra (citing

cases). Thus, as the Court in Knight II, 465 U.S. at 291,

concluded, "The state has a legitimate interest in ensuring that

32

its public employers hear one, and only one, voice presenting

the majority view of its professional employees on employment-

related policy questions," and exclusive representation is a

"rational means of serving that interest."

Finally, the nonunion employees, even if they do not have

input into bargaining committees or bargaining proposals, remain

protected by the duty of fair representation. As mentioned,

that duty ensures that the unions may not negotiate a collective

bargaining agreement that discriminates against nonmembers in

the terms and conditions of employment. See Janus, 138 S. Ct.

at 2468; Emporium Capwell Co., 420 U.S. at 64 ("by the very

nature of the exclusive bargaining representative's status as

representative of all unit employees, Congress implicitly

imposed upon it a duty fairly and in good faith to represent the

interests of minorities within the unit"). Here, the employees

have not plausibly alleged that the unions committed a breach of

the duty of fair representation for the reasons discussed supra.

Thus, we conclude, it is not a breach of the duty of fair

representation to prevent nonmembers from participating in the

selection of bargaining committees or the development of

bargaining proposals. The Supreme Court has deemed such

exclusive representation to be constitutional.

4. Conclusion. For the foregoing reasons, we vacate as

moot the board's decision with respect to the agency fee

33

provisions of G. L. c. 150E, § 12, and we affirm the board's

decision with respect to the exclusive representation provisions

of G. L. c. 150E, §§ 2, 4, 5, and 12.

So ordered.