JAMES BELHUMEUR & others [Note 1] vs. LABOR RELATIONS COMMISSION & others, interveners. [Note 2]

WILKINS, J. The plaintiff teachers have challenged the amount and validity of the agency service fees charged to them by the unions that represent them for collective bargaining purposes. This appeal relates to one aspect of that challenge. We allowed the plaintiffs' petition for direct appellate review.

Each plaintiff argues, as a nonunion member obliged to pay a "service fee" (G. L. c. 150E, Section 12 [1990 ed.]), that his or her First Amendment rights have been violated because no independent auditor has certified to the correctness of the allocation of chargeable and nonchargeable expenses, on the basis of which each union determined the agency service fee it charged. The plaintiffs contend that a report of such an independent audit must be delivered to them with the union's demand for payment of an agency service fee. They rely on what the Supreme Court said in Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986), particularly in footnote 18 of that opinion. They also assert that State constitutional principles support their claim. None of the intervener unions obtained independent audits of their determinations of which expenses were chargeable and nonchargeable. For the purposes of this appeal, we may assume that the unions otherwise provided adequate information to their agency service fee payers.

We affirm the commission's determination to dismiss the plaintiffs' charges and not to issue complaints on them insofar as those charges are based on the absence of an independently audited verification of a union's separation of chargeable from nonchargeable expenses.

Page 144

1. We turn first to the plaintiffs' claim that their First Amendment rights entitle them to an independent audit verification of the union's determination of the expenses that are chargeable to them as agency service fee payers. That position has been rejected in every Federal Circuit Court of Appeals that has passed on it. See Andrews v. Education Ass'n of Cheshire, 829 F.2d 335, 340 (2d Cir. 1987); Dashiell v. Montgomery County, 925 F.2d 750, 754-757 (4th Cir. 1991); Gwirtz v. Ohio Educ. Ass'n, 887 F.2d 678, 680 (6th Cir. 1989), cert. denied, 494 U.S. 1080 (1990); Ping v. National Educ. Ass'n, 870 F.2d 1369, 1374 (7th Cir. 1989). [Note 3] See also Antry v. Illinois Educ. Labor Relations Bd., 195 Ill. App. 3d 221, 243 (1990); Kuehn v. American Fed'n of State, County & Mun. Employees, Council No. 65, 435 N.W.2d 130, 135 (Minn. Ct. App.), cert. denied, 493 U.S. 849 (1989).

Each Court of Appeals opinion appears to give weight to the fact that, under the auditing process advocated by the challenging agency service fee payers, auditors would be rendering legal opinions as to the propriety of a union's allocation of certain expenses to the chargeable and nonchargeable categories. See Andrews, supra at 340; Dashiell, supra at 756; Gwirtz, supra at 682 n.3; Ping, supra at 1374. This reason for rejecting a constitutional challenge to the absence of an audited verification of the allocation of chargeable and nonchargeable expenses is not dispositive of the issue. Pursuant to proper guidelines founded on established legal considerations,

Page 145

an auditor could probably do a satisfactory job of properly separating chargeable from nonchargeable expenses. If that were done, agency service fee payers would be more apt to accept a union's expense allocations than in the absence of such an audit, and presumably fewer proceedings would be brought to resolve challenges to expense allocations. Even such a process, however, would not foreclose challenges to unions' classifications of expenses. These challenges to allocations would generally involve legal issues.

The crucial question is not, however, whether an independent audit would be a good idea, but rather whether the First Amendment rights of agency service fee payers can be protected only if a report of such an independent audit accompanies a union's demand for payment of an agency service fee. The language in Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 307 n.18 (1986), does not explicitly require such a practice. [Note 4] The uncertain language of footnote 18 provides no guidance to the resolution of the issue before us.

If, as we think, the language of the Hudson opinion is inconclusive, the issue remains whether the First Amendment rights of agency service fee payers can be protected only if the union's chargeable and nonchargeable expense allocations are independently audited. An audit of major categories of expenses should tend to assure nonmembers that the union indeed did incur the expenses on which the agency fee was based. Certain audited categories will have expenses all of which are obviously chargeable. Perhaps others will have expenses that are equally clearly not chargeable. The audits conducted in this case meet the plaintiffs' demands as to

Page 146

those two classes of categories. The focus of dispute is on those categories in which some expenses are chargeable and some are not.

An independent audit of a union's allocation of expenses in these mixed categories is not required in order to protect the plaintiffs' First Amendment rights. The information that the union must provide under the Hudson opinion is not intended to be dispositive of any dispute. That information is designed only to permit an agency fee payer to decide whether to oblige the union to prove before an independent fact finder that the agency fee charged was properly determined. Information from an audit of chargeable and nonchargeable expenses might be helpful in making that decision, but it would not be conclusive, and in our judgment is not necessary to provide the First Amendment protections considered in the Hudson case.

The major threatened First Amendment impropriety that the Supreme Court has identified is the use of agency service fee payers' funds to support political candidates and legislative lobbying or to subsidize other political union activities, outside the union's duties as exclusive bargaining agent. See Lehnert v. Ferris Faculty Ass'n, 111 S. Ct. 1950, 1960-1961 (1991); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234 (1977). The infringement that an agency shop makes on nonunion employees' constitutional rights requires that carefully crafted procedures be developed to minimize that infringement and to give an individual "a fair opportunity to identify the impact of the governmental action on his interests and to assert a meritorious First Amendment claim." Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 303 (1986). Because the disputed portion of an agency service fee is not paid to the union until the challenge is resolved, there is no way by which the union can use a protestor's funds for impermissible purposes.

2. The plaintiffs argue that the Constitution of the Commonwealth requires an independent audit of a union's expense allocations. This argument is presented in less than two

Page 147

pages of their brief. [Note 5] Our previous opinions in this general area have not been based on State, as opposed to Federal, constitutional principles. See Harrison v. Massachusetts Soc'y of Professors/Faculty Staff Union, 405 Mass. 56 (1989); Lyons v. Labor Relations Comm'n, 397 Mass. 498, 503 (1986); School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70 (1982).

The plaintiffs have made no reasoned argument that this court should recognize a State constitutional right to an independent audit of a union's chargeable and nonchargeable expenses. They do not argue that the use of accounts to hold contested amounts in escrow while the dispute is being resolved is unconstitutional under the State Constitution. They do not claim that the procedure established by the Labor Relations Commission to resolve disputes over the calculation of agency service fees is unconstitutional because of the financial burden placed on a successful challenger to a union's expense allocation determination. In short, the plaintiffs presume, without discussion, that the State Constitution fully and exactly requires the processes that have been adopted in response to Federal constitutional principles and that one additional element is required by the State Constitution.

We reject a State constitutional argument that does not stand on a State constitutional foundation. We are unreceptive to an unexplicated argument that a State constitutional requirement should be grafted onto a process that has been formulated exclusively in response to Federal constitutional requirements. Here the plaintiffs have not identified a State constitutional right infringed by the absence of an independent audit of the sort they want that could not be adequately protected in some other way. We do not find in their abbreviated, facial challenge to the absence of an independent audit

Page 148

an argument that calls for a decision of this court on their State constitutional claim.

3. We affirm the decision of the Labor Relations Commission dismissing the plaintiffs' claim that each union's explanation of the basis for its agency service fee violated the plaintiffs' constitutional rights because the union's breakdown of expenses was not verified by an independent audit.

So ordered.