WHITTIER REGIONAL SCHOOL COMMITTEE vs. LABOR RELATIONS COMMISSION & another. [Note 1]

NOLAN, J. The plaintiff, Whittier Regional School Committee (school committee), has appealed from a decision of the defendant Labor Relations Commission (commission) dated December 11, 1986, which ordered the school committee to enforce the agency service fee clause of the collective bargaining agreement between the defendant Whittier Regional Teachers Association (association) and the school committee by terminating the employment of Carl O'Brien, a teacher who has refused to pay the fee. We transferred the case from the Appeals Court on our own motion. We discern no error in the commission's order, but, for reasons set forth below, we remand the case to the commission for further consideration. At issue is whether the school committee violated G. L. c. 150E, Section 10 (a) (1), (2), & (5), by failing to discharge O'Brien for refusing to pay the agency service fee.

O'Brien is a nonmember of the association, but he is required as a condition of employment to pay a service fee to the association for its representation of him in its collective bargaining activities. G. L. c. 150E, Section 12. He is not required, however, to support the social, political, or special activities of the association. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).

We learn from the commission's findings of fact that O'Brien was employed by the school committee as a teacher for the 1982-1983 school year, during which the agency service fee was set by the association at $217 per year. Of this amount, $17 was allocated to the local association, $145 to the State association (MTA), and $55 to the national association (NEA). Membership in the MTA and NEA was a precondition to membership in the local association according to the association by-laws. The association gave notice on October 22, 1982, that the agency service fee was due and payable by December 1, 1982, and a second reminder was posted on November 23, 1982. O'Brien did not pay the fee by December 1, 1982. After receiving a demand letter sent on February 2, 1983, O'Brien tendered to the association a check in the amount of $17 in lieu of the full amount demanded. He tendered this amount sometime prior to April 16, 1983. This check was returned to O'Brien by the association.

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The association wrote to the superintendent-director of the Whittier Regional Vocational Technical School District on February 17, 1983, demanding the initiation of dismissal proceedings against O'Brien for failure to pay the full fee. The school committee responded on February 22, 1983, by advising the association that it would not take any action "until such time as the factual and legal issues regarding the Association[']s refusal to accept the payment of the service fee and the determination of the amount of the service fee have been resolved by either the American Arbitration Association, Essex County Superior Court or Labor Relations Commission." [Note 2]

In 1982, there was pending an arbitration proceeding seeking an interpretation of the agency service fee provision in the collective bargaining agreement at issue in this case. Sometime later, the parties mutually agreed to withdraw this arbitration proceeding and to allow the matter to be decided by the commission. The association sent another letter on March 3, 1983, to the superintendent, demanding compliance with the collective bargaining agreement by the school committee. Again, the superintendent declined because the case was then pending before the commission. A final demand for O'Brien's dismissal was made on April 15, 1983.

O'Brien has not filed a charge of prohibited practice against the bargaining agent in protest of the amount of the service fee. See 456 Code Mass. Regs. Section 17.06 (1)-(3) (1986), and, infra note 3. The school committee argued before the commission for him that he had fulfilled his obligation under the collective bargaining agreement by tendering $17. Article 3-04 of the agreement provides: "As a condition of his continued employment, every teacher, if and when not a member in good standing of the Association, shall pay or, by payroll deduction, have paid to the Association an agency fee of an amount to be determined by the Association, but in no event in excess of its dues . . ." (emphasis supplied). The term "its dues" is

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ambiguous, the committee argues, and may refer only to the dues of the local association and not to those of the MTA or the NEA. The commission has decided this issue adversely to the school committee in recognizing $217 as the amount due. There is no error on the record before us, though we hasten to add that O'Brien is not a party in the case before the commission, and he may have certain statutory rights under G. L. c. 71 when confronted with dismissal. He may have acquired tenure at some time prior to the issuance of the commission's order.

1. Jurisdiction of the commission. There is no merit to the school committee's argument that the commission was without authority or jurisdiction to order dismissal of a teacher because such action is within the area of the school committee's nondelegable duties. The nondelegability doctrine has never been stretched this far. In Southern Worcester County Regional Vocational School Dist. Comm. v. Labor Relations Comm'n, 386 Mass. 414, 423-424 (1982), we upheld an order of the commission requiring reinstatement of a teacher who had been discharged for union activity even though reinstatement resulted in tenure for the teacher. The order in the instant case is well within the commission's broad powers under G. L. c. 150E, Section 11.

2. Prohibited practice violation. The school committee argues that its failure to discharge O'Brien was not a violation of G. L. c. 150E, Section 10(a)(5) & (1). This argument cannot stand. It is true that the seminal case, School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70 (1982), which required revamping the procedure governing payment of contested agency fees, was not decided until January 14, 1982. The school committee seems to argue that Greenfield caused such procedural confusion that it should be excused from answering the demands of the association to comply with the collective bargaining agreement by discharging O'Brien for failure to pay the agency fee. However, between January, 1982 and December, 1986, when the commission issued its order in this case, there elapsed an abundance of time within which to act.

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3. Failure of association to notify O'Brien of demand. Assuming, without deciding, that the school committee has standing to advance an argument in the name of O'Brien, the argument that O'Brien was not given appropriate notice cannot stand. When he tendered $17, the association rejected the tender and steadfastly demanded the entire amount, $217.

4. Conclusion. The equities seem to favor giving O'Brien the opportunity to be heard before the commission. We remand the case to the commission to give O'Brien an opportunity within ninety days from the date of this decision to pay the service fee demanded with interest or to file late a charge [Note 3] regarding the amount to be paid as service fee. Giving O'Brien the opportunity of bringing a prohibited practice charge to challenge the fee amount is a recognition of the conclusion reached in Greenfield, supra in which this court stated that "[t]he commission may require the employee to pay the disputed

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fee into an escrow account, but may not require it to be paid to the organization until the commission has determined the permissible fee. Once the employee has brought a complaint, the burden of justifying the fee as permissible must rest on the organization." Id. at 85.

So ordered.