Opposition Brief — Wareham Education Ass'n v. Massachusetts Labor Relations Commission

No. 99-643 ; NOV Le 1999

|

“) OPEInE OF fe GLERK

IN THE

Supreme Court of the United States

WAREHAM EDUCATION ASSOCIATION,

BRIDGEWATER EDUCATION ASSOCIATION,

and FAIRHAVEN EDUCATORS’ ASSOCIATION,

Petitioners,

Vz

MASSACHUSETTS LABOR RELATIONS COMMISSION,

DAVID DuPUIS, ELEANOR DuPUIS, BETSY ANN Woop,

CHARLES CIPOLLINI, and PETER ANTHONY,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

BRUCE N. CAMERON

(Counsel of Record)

GLENN M. TAUBMAN

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road

Springfield, VA 22160

(703) 321-8510

Attorneys for Respondent Individual Teachers

November 1999

CO

‘is

QUESTIONS PRESENTED

1. Whether a small, affiliated union, or an individual

nonmember, should bear the burden of verifying the union’s

financial information when reliable information is necessary to

competently evaluate the union’s agency fee demand?

2. Whether independent and adequate state grounds exist to

support the decision below?

Pp

3. Where a union is found by an administrative agency to

have violated a state statute by the manner in which it demanded

compulsory union fees, may the administrative remedy include

temporary forfeiture of the fee until such time as the union

submits a legally proper demand?

.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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SIA TEEN OF Time CAMs oc... ckccncccacsucceasss 4

REASONS FOR DENYING THE PETITION ........... 9

I. Petitioners Cannot Point to a Seam,

Much Less a Split, in the Solid

Screen of Adverse Decisions Below ....... 9

Il. Transaction Costs Cannot Defeat

FVOG SPOOCR RAMS ok oki sce ccdanceess 12

Il. The Decision Below Also Rests

on Independent State Grounds ........... 14

IV. This Court Does Not Sit to

Revisit the Discretionary Remedial

Decisions of a State Administrative

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TABLE OF AUTHORITIES

Cases Page

Andrews v. Education Ass'n of Cheshire,

829 F.2d 335 (2d Cir. 1987) ............... 9, 12, 13, 14

Black v. Cutter Laboratories, 351 U.S. 292 i) 14

Chicago Teachers Union v. Hudson, 475 U.S. 292

on RS Ay a a eee eee nee passim

Damiano v. Matish, 830 F.2d 1363 (6th Cir. 1987) ........ 9

Dashiell v. Montgomery Cty., 925 F.2d 750

eek Day od x 4d ecw cn kouedens 9

Ferriso v. NLRB, 125 F.3d 865 (D.C. Cir. 1997) ......... 9

Fibreboard Paper Products v. NLRB, 379 U.S. 203

I a sg nei ule un ate eb kos CAA dy hae ke 15

Hohe v. Casey, 956 F.2d 399 (3d Cir. 1992) .......0.00.. 9

Hurley v. Irish-American Gay Group, 515 U.S. 557

a a 12

Knight v. Kenai Peninsula Borough Sch. Dist.,

131 F.3d 807 (9th Cir. 1997), cert. denied,

PM 6a ss ctw navn cccaceccccnccan 9

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

ET a agai tba doe kek kok ake eek, 12

-iv-

TABLE OF AUTHORITIES - continued

Cases Page

Lowary v. Lexington Local Bad. of Educ.,

903 F.2d 422 (6th Cir. 1990), cert. denied,

UE Rites PO ONE ok 40 oe Oka sree tekstas 9,14

Lowary v. Lexington Local Bd. of Educ.,

704 F. Supp. 1461 (N.D. Ohio 1988) ................. 9

Malden Educ. Ass'n, 15 MLC 1029 (1988) ............. 16

Pacific Gas & Electric Co. v. Public Utilities

CO Are Uae: CRE 5 50h ee Seis ces ka scuss 12

Ping v. National Educ. Ass'n, 870 F.2d 1369

Coes Cos ene aa cae a a eee 9

Prescott v. County of El Dorado, 177 F.3d 1102

aes Pe Pre pte ate ee ree ae 12

School Comm. of Greenfield v. Greenfield Educ.

Ass'n, 385 Mass. 70, 431 N.E.2d 180 (1982) .......... 13

School Comm. of Newton v. Labor Relations

es eG a a, a ee 15

Shea v. International Ass'n of Machinists,

Se FS re el, BD ok bs vs ev ee nennens 12

Springfield Educ. Ass'n (Belhumeur), 23 MLC 247

CRED Sic MEE Casa eee OEE WERE EERE 1]

Tashjian v. Republican Party of Conn., 479 U.S. 208

CUR 6 ab esas ss As ee eee ee ae 13

@V-

TABLE OF AUTHORITIES - continued

Cases

Therrien v. Labor Relations Comm'n,

390 Mass. 644, 459 N.E.2d 88 (1983) ........

Tierney v. City of Toledo, 917 F.2d 927

Ce i LEE eee Ore ae ree

Wareham Educ. Ass'n vy. Labor Relations

Comm'n, 430 Mass. 81, 713 N.E.2d 363 (1999)

Zacchini v. Scripps-Howard Broadcasting Co.,

433 UB. SORDID oo. occ vce cnkancdcas.

Constitutional and Statutory Provisions

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-vi-

TABLE OF AUTHORITIES - continued

Miscellaneous Page

Arthur L. Bowker, Trust Violators in the Labor

Movement: A Study of Union Embezzlement,

oP 5. Ge TROD, PEN CEDURE i's oe ee uae kane cwarawacn 7,10

ale

IN THE

Supreme Court of the United States

No. 99-643

WAREHAM EDUCATION ASSOCIATION,

BRIDGEWATER EDUCATION ASSOCIATION,

and FAIRHAVEN EDUCATORS’ ASSOCIATION,

Petitioners,

Vv.

MASSACHUSETTS LABOR RELATIONS COMMISSION,

DAVID DUPUIS, ELEANOR Dupuis, BETSY ANN Woop,

CHARLES CIPOLLINI, and PETER ANTHONY,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The decision and order of the Massachusetts Labor Relations

Commission is reported at 24 Massachusetts Labor Cases 23

(1997). The decision and order of the Massachusetts Supreme

Judicial Court is reported at 430 Mass. 81, 713 N.E.2d 363

(1999). Both opinions are set forth in the appendix to the

Petition for Writ of Certiorari.

JURISDICTION

To the extent this Court has jurisdiction, it is based on 28

U.S.C. § 1257 (a). Respondents argue below this Court lacks

jurisdiction based on the independent and adequate state grounds

for the decisions below.

re

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides: “Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the right of

the people peaceably to assemble, and to petition the Govern-

ment for a redress of grievances.”

Massachusetts General Laws chapter 150E § 11 says in

pertinent part:

If, upon all the testimony, the commission deter-

mines that a prohibited practice has been committed, it

shall state its findings of fact and shall issue and cause

to be served on the party committing the prohibited

practice an order requiring it or him to cease and desist

from such prohibited practice, and shall take such

further affirmative action as will comply with the

provisions of this section, including but not limited to

the withdrawal of certification of an employee organi-

zation established by or assisted in its establishment by

any such prohibited practice. It shall order the reinstate-

ment with or without back pay of an employee dis-

charged or discriminated against in violation of the first

paragraph of this section.

Massachusetts General Laws chapter 150 E § 12 states:

The commonwealth or any other employer shall require

as a condition of employment during the life of a

collective bargaining agreement so providing, the

payment on or after the thirtieth day following the

beginning of such employment or the effective date of

such agreement, whichever is later, of a service fee to

the employee organization which in accordance with

the provisions of this chapter, is duly recognized by the

employer or designated by the commission as the

exclusive bargaining agent for the unit in which such

ie

employee is employed; provided, however, that such

service fee shall not be imposed unless the collective

bargaining agreement requiring its payment as a condi-

tion of employment has been formally executed,

pursuant to a vote of a majority ofall employees in such

bargaining unit present and voting.

Prior to the vote, the exclusive bargaining agent

shall make reasonable efforts to notify all employees in

the unit of the time and place of the meeting at which

the ratification vote is to be held, or any other method

which will be used to conduct the ratification vote. The

amount of such service fee shall be equal to the amount

required to become a member and remain a member in

good standing of the exclusive bargaining agent and its

affiliates to or from which membership dues or per

capita fees are paid or received. No employee organiza-

tion shall receive a service fee as provided herein unless

it has established a procedure by which any employee

so demanding may obtain a rebate of that part of said

employee’s service payment, if any, that represents a

pro rata share of expenditures by the organization or its

affiliates for:

(1) contributions to political candidates or political

committees formed for a candidate or political

party;

(2) publicizing of an organizational preference for a

candidate for political office;

(3) efforts to enact, defeat, repeal or amend legislation

unrelated to the wages, hours, standard of produc-

tivity and performance, and other terms and condi-

tions of employment, and the welfare or the

working environment of employees represented by

the exclusive bargaining agent or its affiliates;

(4) contributions to charitable, religious or ideological

causes not germane to its duties as the exclusive

bargaining agent;

(5) benefits which are not germane to the governance

or duties as bargaining agent, or the exclusive

bargaining agent or its affiliates and available only

to the members of the employee organization.

It shall be a prohibited labor practice for an em-

ployee 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.

STATEMENT OF THE CASE

Facts: David and Eleanor Dupuis are teachers in the

Bridgewater public schools. Betsy Ann Wood is a teacher in the

Wareham public schools. Charles Cipollini and Peter Anthony

are teachers in the Fairhaven public schools. Mr. and Mrs.

Dupuis, Ms. Wood, Mr. Cipollini and Mr. Anthony (hereinafter

collectively referred to as “teachers”) are subject to collective

bargaining agreements entered into by, respectively, the

Bridgewater Education Association (“BEA”), the Wareham

Education Association (“WEA”) and the Fairhaven Educators

Association (“FEA”).

The Bridgewater Education Association, the Wareham

Education Association and the Fairhaven Educators Association

(hereinafter collectively referred to as “associations” or “local

unions”) are affiliated on the state level with the Massachusetts

Teachers Association (“MTA”) and on the national level with the

National Education Association (“NEA”).

The teachers have not joined the associations or the

associations’ state and national affiliates. Nevertheless, thev are

required to pay agency fees to these unions and their affiliates as

a

a result of collective bargaining agreements between their

employers and the unions.

Although employers and unions are allowed to enter into

agency fee agreements in the Commonwealth of Massachusetts,

they are not required to do so. (G.L. c. 1S0E § 12) Asa result,

most of the local affiliates of the MTA have not entered into

agreements which coerce support from nonmembers. '

The smaller the local affiliate, the less likely it is to enter

into compulsory fee agreements with the employer. Almost

two-thirds of the local affiliates of the MTA (196) are smaller

than the smallest of the three local unions (i.e., WEA) involved

in this case. Of those 196 small locals, fewer than one-third (62)

have entered into coercive agreements. Of those 62, only 27

represent teachers who have not joined the union.

Beginning in 1989, the local unions demanded that the

teachers pay an agency fee which generally equaled the amount

of dues paid by voluntary union members.’

' Out of 300 local affiliates, only 137 have agency fee agreements.

> Dues for the Bridgewater Education Association for the year at issue

were $299, of which $30 was retained by the BEA, $191 was sent to the

MTA and $78 was forwarded to the NEA. The agency fees demanded of the

Dupuis for that same year were $275.45, of which $30 was retained by the

BEA, $186.95 was sent to the MTA and $58.50 was forwarded to the NEA.

Dues for the Wareham Education Association for the 1987-88 school

year were $283, of which $30 was retained by the WEA, $178 was sent to the

MTA and $75 was forwarded to the NEA. The agency fee demanded of Ms.

Wood for that same year was $242.63, of which $29.18 was retained by the

WEA, $157.57 was sent to the MTA and $55.88 was forwarded to the NEA.

The dues for the Wareham Education Association for the 1988-89 school year

were $299, of which $30 was retained by the WEA, $191.was sent to the

MTA and $78 was forwarded to the NEA. The agency fee demanded of Ms.

Wood for 1988-89 was $262.73, of which $30 was retained by the WEA,

(continued...)

.”

The local unions’ fee demands were not accompanied by

an audit of their financial books and records. An audit would

allow the teachers to have a trustworthy basis on which to review

the local unions’ actual expenditures to decide whether they

thought the fee demand was excessive. The fee demands

provided some unaudited financial information, but did not

disclose all union expenditures.

For objecting nonmembers like the teachers, the local

unions’ state and national affiliates calculated a reduced agency

fee that was less than the dues paid by voluntary union members.

These calculations included audits of the affiliates’ books and

records.

The MTA, the state affiliate which receives the lion’s

share of the compelled fees, “rebates” a portion of these fees to

the local in what it terms “local office support.” This local office

support, which can be up to 50% of total local expenses, carries

some strings with it. One of those “strings” is that the local

affiliate cedes to the MTA the authority to require an audit of the

local’s books “in the event the MTA deems it necessary.”

The authority of the MTA to require audits of its local

affiliates became a matter of internal controversy after this case

was filed. The MTA employs what it calls “regional services

consultants” to handle relationships with the local affiliates. One

MTA regional services consultant, Charles Baldwin, became

alarmed when he noticed that both “malfeasance” and

> (...continued)

$174.23 was sent to the MTA and $58.50 was forwarded to the NEA.

The dues for the Fairhaven Education Association for the year at issue

were $314, of which $45 was retained by the FEA, $191 was sent to the MTA

and $78 was forwarded to the NEA. The agency fees demanded of Mr.

Anthony and Mr. Cipollini for that year were $290.45, of which $45 was

retained by the FEA, $186.95 was sent to the MTA and $58.50 was

forwarded to the NEA.

ieee ini stecatiaiieieii ieee

“nonfeasance” were taking place when it came to the handling of

money by local affiliates.

Mr. Baldwin wrote a letter to MTA’s Executive Director

(with a copy to the General Counsel and others) relating his

experience, and reporting that he consulted with Mike O’Neil, a

C.P.A. employed by the MTA, and learned from him of a list of

other MTA locals which had similar problems. Baldwin

Suggested that a way to combat this serious problem was to

“make it disadvantageous for our locals not to have their books

audited each year.”

The teachers have an independent basis for fearing that

locals have something to hide from the knowledgeable eyes of

experts. When the FEA was required to bring its financial books

and records to a Labor Relations Commission hearing, the FEA

refused (on advice of MTA counsel) to produce the books and

records to the nonunion teachers if those teachers insisted upon

being aided in the matter by their own attorney.

Nationwide, there is a rising concern about the trustwor-

thiness of the financial records of small unions. According to one

published study, when it comes to officer embezzlement of union

funds, “[t]he vast majority of all victim labor Organizations, 78

percent, were local unions.” Arthur L. Bowker, Trust Violators

in the Labor Movement: A Study of Union Embezzlement, 19 J.

Lab. Res. 571, 574 (1998). Indeed, the introduction to this study

summarized part of the findings that, “victim unions were small

in financial and membership size.” Jd. at 571.

These same concerns exist here. In one local, the

auditors had to work on the accounting records to bring them to

the point where they could be audited. According to an MTA

employee and an MTA auditor, at least eight MTA locals

suffered from malfeasance and nonfeasance on the part of local

officers when handling funds.

It takes a certain minimal amount of time, even for

trained professionals, to determine if a small union’s financial

-8-

records are trustworthy. The local unions’ own expert testified

that he would budget 60 hours to audit a small local. In its

decision, the Massachusetts Labor Relations Commission

recounted the steps a certified public accountant takes in

determining whether a union’s financial statements are trustwor-

thy. These include confirming the amount of financial transac-

tions with outside banks and vendors. (Appendix to Petition

“App.” at 30a-31a) Obviously, this test would take longer for a

teacher who is untrained in the science of auditing financial

records—assuming such testing with banks and vendors would

even be possible.

Proceedings Below: After the teachers received the

agency fee demands which failed to include an audit of local

union expenses, they timely filed prohibited practice charges

with the Massachusetts Labor Relations Commission challenging

the procedures by which the local unions demanded their agency

fees, and other matters not pertinent here. The charges raised the

constitutional and state statutory right of the teachers to receive

from the local unions audited information so they could gauge

the propriety of the unions’ fee demands.

The Commission issued a complaint alleging that these

three local unions did not provide the teachers “with an inde-

pendent auditor’s financial statement of its revenues and

expenses for the fiscal year preceding the period for which the

fee was demanded.” Since the local unions had not provided the

teachers with any audited financial information at the time of the

agency fee demand, the Commission’s allegation was admitted

by all three unions. The local unions did not plead any affirma-

tive defense to their failure to provide an audit to the teachers.

The Commission held several hearings. Recommended

Findings of Fact were issued by Commissioner William Dalton

on October 28, 1996. A unanimous final decision and order was

handed down by the Commission on October 29, 1997, holding

that the local unions violated state law by failing to provide

audited financial information to the teachers. Upon the request

of the local unions, the Supreme Judicial Court granted direct

ACS Se ee nttaaa o deca

-9.

review of the Commission’s decision. On July 15, 1999, the

Supreme Judicial Court unanimously affirmed the decision of the

Commission.

REASONS FOR DENYING THE PETITION

I. PETITIONERS CANNOT POINT TO A SEAM, MUCH

LESS A SPLIT, IN THE SOLID SCREEN OF

ADVERSE DECISIONS BELOW.

In Chicago Teachers Union v. Hudson, 475 U.S. 252,

307 n.18 (1986), this Court determined that a union must provide

an audit of its books and records whenever it makes an agency

fee demand upon nonmembers. Specifically, this Court required

that the union’s “major categories of expenses” be disclosed “as

well as verification by an independent auditor.” (/d.)

A phalanx of federal circuit courts have reaffirmed the

Hudson audit requirement. None have rejected it for public

employees. Second Circuit: Andrews vy. Education Ass’n of

Cheshire, 829 F.2d 335, 340 (2d Cir. 1987); Third Circuit: Hohe

v. Casey, 956 F.2d 399, 415 (3d Cir. 1992); Fourth Circuit:

Dashiell v. Montgomery Cty., 925 F.2d 750, 756-57 (4th Cir.

1991); Sixth Circuit: Lowary v. Lexington Local Bd of Educ.,

903 F.2d 422, 431-32 (6th. Cir. 1990), cert. denied, 498 U.S. 958

(1990); Tierney v. City of Toledo, 917 F.2d 927, 933-36 (6th Cir.

1990); Damiano v. Matish, 830 F.2d 1363, 1370 (6th Cir. 1987);

Seventh Circuit: Ping v. National Educ. Ass’n, 870 F.2d 1369,

1374 (7th Cir. 1989) (quoting Lowary v. Lexington Local Bd of

Educ., 704 F. Supp. 1461, 1466 (N.D. Ohio 1988)); Ninth

Circuit: Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d

807, 813 (9th Cir. 1997), cert. denied, 524 U.S. 904 (1 998); D.C.

Circuit: Ferriso v. NLRB, 125 F.3d 865, 867-72 (D.C. Cir. 1997).

Petitioner local unions acknowledge this unanimity by

candidly confessing that it is “well established” that “an

independent audit of the expenditures on which the agency fee is

based must be provided to fee payers.” (Pet. at 14)

-10-

The audit requirement is not some arcane technical

standard. Both the Supreme Judicial Court of Massachusetts and

the Massachusetts Labor Relations Commission acknowledged

the basis for the requirement of audited information is to allow

nonmembers some measure of assurance the local unions’

financial information is reliable. (App. at 10a-11a; 40a-41a)

This concern about reliability is magnified in small

locals. As mentioned above, the Bowker study found that when

it came to financial improprieties, “victim unions were small in

financial and membership size.” Bowker, 19 J. Lab. Res. at 571.

These kinds of concerns about small unions have proven

well founded in Massachusetts. The trial revealed auditors had

to work on the accounting records of one local to bring it to the

point where it could be audited. According to a union employee

and a union auditor, at least eight locals of the MTA suffered

from malfeasance and nonfeasance on the part of local officers

when handling funds.

Indeed, the local unions’ expert witness testified that in

“most” small locals one person handles all the accounting and,

therefore, the expert could not place any reliance on union

“internal controls.”

Since reliable financial information is at the heart of the

Hudson procedure, and the “Achilles’ heel” of small union

finances is reliability, the question becomes who should bear the

burden of determining the veracity of the local unions’ financial

records?

While the local unions can limit their financial burden

to $30 (the amount they collect), the financial burden on the

teacher seeking to protect First Amendment rights is significant.

The Massachusetts Labor Relations Commission recounted the

steps a certified public accountant takes to determine whether a

union’s financial statements are trustworthy. These include

confirming the amount of financial transactions with outside

banks and vendors. (App. at 30a-3 1a) The unions’ expert witness

its

testified that he would budget 60 hours to audit a small local.

This means that highly-trained professionals are required to

expend at least $2,000 worth of their time to review the account-

ing records of the Wareham Education Association to determine

whether the records can be relied upon.

Should Betsy Ann Wood (the Wareham nonmember) be

required to invest, at a minimum, 60 hours of her time to

determine whether the WEA’s financial records are adequate for

her to gauge the propriety of its claim to $30.00 of her money?

Hardly! This is the essence of an unconstitutional burden on free

speech rights.’

No proper consideration of the burden on these small

locals would be complete without a consideration of their large

state and national affiliates. The local unions’ affiliates are a

large and ready source of financial help. The MTA has an

annual income of nearly $13 million and the NEA has an annual

income of almost $118 million. The MTA not only has the

authority to require audits of its local affiliates, the record shows

it has paid for them in the past.

These local unions charge the teachers for all three levels

of the “unified” organization, on the basis that support for the

large state and national affiliates is essential to having the proper

resources for effective collective bargaining. The ability of these

affiliates to bring their “considerable economic” resources to

bear to help locals in need is the precise reason this Court ruled

> The local unions disingenuously suggest (Pet. at 20) that the

requirement of providing reliable audited financial information to nonmem-

bers is not important because they can skip “virtually cost-free and risk-free”

to the next stage of the Hudson procedure - which is the trial. A trial on the

amount of the state affiliate’s agency fee has already taken place. Springfield

Educ. Ass'n (Belhumeur), 23 MLC 247 (1997). Although that case is on

appeal, the nonmembers in that case proved the affiliate’s demands were

illegally high. The procedure took approximately eight years, 53 days of trial

and $50,000 in court reporters’ fees to Say nothing of attorney resources.

0

A’

nonmembers can be compelled to support all three levels of the

union hierarchy. Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507,

523 (1991).

Affiliate resources, however, are a topic the local unions

would like to avoid when it comes to claiming “burden.” This

Court must not close its eyes, when evaluating claims of “bur-

den,” to the collections operation or the multilevel, interlocking

nature of these unions. Andrews, 829 F.2d at 340 n. 2.

In a desperate search for any aberration in the solid wall

of adverse precedent and common sense protection for nonmem-

bers’ rights, the local unions claim that Prescott v. County of El

Dorado, 177 F.3d 1102 (9th Cir. 1999) “would appear to

sanction the financial disclosure provided by [the local unions]

in this case.” (Pet. at 16)

That brings us to the essence of this Petition. Against a

solid wall of adverse precedent, the most the local unions can say

is that Prescott appears to support them. Appearance has proven

deceiving to the local unions, for the Supreme Judicial Court of

Massachusetts relied upon Prescott in ruling against them. (App.

at 10a)

Il. TRANSACTION COSTS CANNOT DEFEAT FREE

SPEECH RIGHTS.

“[OJne important manifestation of the principle of free

speech is that one who chooses to speak may also decide ‘what

not to say.”” Hurley v. Irish-American Gay Group, 515 U.S.

557, 573 (1995) (quoting Pacific Gas & Electric Co. v. Public

Utilities Comm'n, 475 U.S. 1, 16 (1986). The teachers here do

not want to join these unions and do not want to support their

political and ideological activities.

These are “core” First Amendment concerns. Lehnert

500 U.S. at 516; Shea v. International Ass’n of Machinists, 154

F.3d 508, 517 (Sth Cir. 1998) (Nonunion employees who call

upon the court in this type of case “to protect the[ir] free speech

-]3-

nights ... from intrusive union procedures ... [raise] rights whose

protection are at or near ‘the core’ of the First Amendment”).

The fundamental First Amendment rights involved in this

litigation require that prophylactic procedures “be carefully

tailored to minimize the infringement.” Hudson, 475 U.S. at 303.

The state courts of Massachusetts have determined that

the teachers’ stake in this litigation is their free speech rights

while the unions’ stake is “only [to] funds to which [they are]

entitled by statute and agreement.” School Comm. of Greenfield

v. Greenfield Educ. Ass'n, 385 Mass. 70, 84, 431 N.E.2d 180,

189 (1982).*

In general, cost considerations are not a sufficient basis

to defeat First Amendment claims. Tashjian v. Republican Party

of Conn., 479 U.S. 208, 218 (1986).

Specifically, the Second Circuit has ruled that burden is

not a proper defense to the required Hudson procedures:

[T]he district court should not have approached

this question with a balancing test in which the

cost to the union and the practicality of the proce-

dures were to be weighed against the dissenters’

First Amendment interests. We believe that the

procedures mandated by Hudson are to be ac-

corded all nonmembers of agency shops regard-

less of whether the union believes them to be

excessively costly. Excessive cost cannot form

the basis for allowing the union or the govern-

ment to avoid Hudson’s requirement ....

It is probably more accurate to say that the unions’ interest is only

contractual. The court below noted that Massachusetts law only permits, and

does not mandate, union security agreements. (App. at 9a) Reflected in the

record is the fact that most of the MTA’s locals have not entered into agency

fee agreements.

~14-

Andrews 829 F.2d at 339.

The Sixth Circuit, after quoting from Andrews, opined:

Although it may be somewhat burdensome on the

unions, full disclosure of financial information is

a minimal requirement in exchange for this

interference. Hudson and a due regard for First

Amendment values lead to this conclusion.

Lowary, 903 F.2d at 432.°

If the amount of money at issue were a cognizable

concern, this Court in Hudson would not have imposed the

constitutionally required procedures with this note: “The amount

at stake for each individual dissenter does not diminish this

concern [about the risk that constitutional rights will be vio-

lated]. For, whatever the amount, the quality of respondents’

interest in not being compelled to subsidize the propagation of

political or ideological views that they oppose is clear.” Hudson,

475 U.S. at 305.

lil. THE DECISION BELOW ALSO RESTS ON

INDEPENDENT STATE GROUNDS.

If there are adequate and independent state grounds for

the decision of a state court, this Court is deprived of jurisdic-

tion. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.

562, 565-68 (1977); Black v. Cutter Laboratories, 351 U.S.292,

297-99 (1956). In the court below, the Massachusetts Labor

Relations Commission vehemently argued:

The Unions conveniently ignore the fact that the

Commission’s decision here rests not only on the

First Amendment requirements ... but also rests

> The defendant local union in Lowary was less than one-third the size

of the smallest union here.

Ce ne

4

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on the Commission’s application of the broad

policies underlying the language of Section 12 of

Chapter 150 E.

The local unions’ Petition fails to mention, much less

discuss, the jurisdictional problems presented by the Commis-

sion’s decision to rest its opinion not only upon First Amend-

ment requirements, but aiso upon the Commission’s application

of the broad policies underlying the Massachusetts labor statute,

G.L. c. 150E. The Commission argued before the court below

that its decision was based upon “sound labor policy” and its

opinion stated its audit requirement for small locals was a result

of recognizing and accommodating “divergent interests when

interpreting and applying the Law.” (App. at 42a)

IV. THIS COURT DOES NOT SIT TO REVISIT THE

DISCRETIONARY REMEDIAL DECISIONS OF A

STATE ADMINISTRATIVE AGENCY.

Remedial decisions of the National Labor Relations

Board are subject to limited judicial review. Fibreboard Paper

Products v. NLRB, 379 U.S. 203, 216 (1964). The Massachusetts

Supreme Judicial Court has ruled the Massachusetts Labor

Relations Commission has similar discretionary statutory

authority under state law (compare 29 U.S.C. § 160 (c) with

Mass. G.L. c. 150E § 11), when it comes to questions of remedy.

Therrien v. Labor Relations Comm 7, 390 Mass. 644, 648, 459

N.E.2d 88, 91 (1983); School Comm. of Newton v. Labor

Relations Comm'n, 388 Mass. 557, 580 (1983).

There is no abuse of discretion in the Commission’s

remedial decision. The Commission has not denied the local

unions the ability to require reimbursement for their collective

bargaining expenses at some future time. It has only released the

teachers’ money from escrow based on the local unions unlawful

demand. (App. at 43a: “Cease and desist from requiring the

Charging Parties to pay an agency service fee ... based on the

invalid demands.”)

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The local unions can make a new agency fee demand

when they comply with the constitutionally required procedures.

The Commission places essentially no restrictions on a union’s

ability to continue making agency fee demands on nonmembers,

even though earlier demands were illegal.

Malden Education Association, 15 MLC 1029 (1988) is

instructive. In that case, the Malden Education Association

made four agency fee demands upon a nonmember for the same

year (1983-84). These demands were made on September 19,

1983, November 18, 1983, February 29, 1984 and November 9,

1984. Jd. at 1032. The Commission held that the first two

demands were illegal because the union had not filed the proper

financial information. Jd. at 1035, 1037. However, when the

union later filed the proper financial information, the Commis-

sion determined the third and fourth demands to be valid. Jd. at

1035.

In its argument to the court below, the Massachusetts

Labor Relations Commission stated: “[n]Jone of [the cases cited

by the local unions] arose under a regulatory scheme like that in

Massachusetts where a union’s right to collect a fee is only

triggered by a valid demand.” To the extent that a union has a

nght to collect a fee from Massachusetts teachers, the Commis-

sion’s decision does nothing to thwart that right. Instead, it

simply requires that right to be enforced in a way that is consis-

tent with state law and the First Amendment.

A remedial decision, based upon a state regulatory

scheme, is beyond the purview of this Court.

sit.

CONCLUSION

The local unions present no meritorious reason for a writ

of certiorari in this case. With respect to all issues the local

unions have raised, the decision of the Supreme Judicial Court

either rested on adequate and independent state law grounds or

correctly followed the applicable decisions of this Court. The

court below properly affirmed the state remedial determination

of the administrative agency. The local unions cannot point to

any conflict among the courts of appeals concerning the issues

and no real conflict exists concerning this issue. Therefore, the

local unions’ Petition should be denied.

Respectfully submitted,

Bruce N. Cameron

Counsel of Record

Glenn M. Taubman

c/o National Right to Work

Legal Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(703) 321-8510

Attorneys for Respondent

Individual Teachers

November 1999