In a case which was filed before the United States Supreme Court’s decision in Janus v. AFSCME, Local 31, 138 S.Ct. 2448 (2018), four public employees claimed that the agency fee provision in the Massachusetts public sector collective bargaining law, G.L. c. 150E, § 12, and that statute’s exclusive representation provisions, §§ 2, 4, 5, and 12, violate the First Amendment to the United States Constitution as to employees who are nonmembers of their unions. After the Department of Labor Relations (“DLR”) and the Commonwealth Employment Relations Board (“CERB”) dismissed their case, the employees appealed. The Supreme Judicial Court apparently exercised direct appellate review, took the case, and has now decided it in Branch v. CERB, SJC No. 12606 (2019).

Addressing the agency fee claim first, the SJC noted that after Janus had declared mandatory agency fee statutes unlawful under the First Amendment, the employees’ unions voluntarily stopped collecting the fees. It also observed that the DLR had issued unequivocal guidance consistent with Janus. Concluding that there is no reasonable prospect that fee collections will resume, the court decided that the employees’ claim was moot.

Moving to the exclusive representation argument, the court rejected the employees’ First Amendment challenge. It applied several United States Supreme Court decisions which have sustained exclusive representation provisions as essential to the effectiveness of the collective bargaining process, The SJC pointed out that the Supreme Court has tied the requirement of exclusive representation to a union’s duty of fair representation but has held that the latter duty applies only to the “output” of the process and not to its “input”. Accordingly, under Supreme Court precedent this duty does not apply to how the union selects its negotiators and develops its proposals. The SJC further found no constitutional problem in the fact that the nonmember employees would have no voice in proposals submitted or agreed to at the table, noting that this is a natural consequence of their losing the initial vote regarding union representation and choosing not to join the union after that vote. As the court pointed out, the employees’ unions are still obligated by the duty of fair representation to negotiate an agreement which does not discriminate against nonmembers in the terms and conditions of employment.

This decision means that in Massachusetts the ruling in Janus does not undermine the requirement in chapter 150E that nonmembers of unions will have the terms and conditions of their employment determined by the unions which they have opted not to join.

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This update is provided for informational purposes only and should not be considered legal advice.