Home DIANE MCCORMICK vs. LABOR RELATIONS COMMISSION; EAST LONGMEADOW EDUCATION ASSOCIATION, intervener.

412 Mass. 164

November 4, 1991 - March 11, 1992

Suffolk County

Present: LIACOS, C.J., WILKINS, ABRAMS, NOLAN, & LYNCH, JJ.

The Labor Relations Commission correctly dismissed a challenge to the validity of agency fees demanded by a union of a nonmember for whom the union served as the bargaining representative, where the union had given the nonmember notice of the imposition of the fee and an opportunity to vote on the collective bargaining agreement, in accordance with G. L. c. 150E, Section 12. [166-168]

A nonuninon employee was not entitled, under the authority of Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976), to express her general views on a proposed collective bargaining agreement at a nonpublic contract ratification meeting convened by the union. [169]

On an appeal from a decision of the Labor Relations Commission an employee was not entitled to raise arguments that she failed to raise before the commission. [169-170]

APPEAL from a decision of the Labor Relations Commission.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Bruce N. Cameron of Virginia, for the plaintiff.

Jean Strauten Driscoll for the defendant.

Margery E. Williams, for East Longmeadow Education Association, intervener, submitted a brief.


ABRAMS, J. Diane McCormick, a guidance counselor in the East Longmeadow public schools, appeals from a final order of the Labor Relations Commission (commission) dismissing

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her challenge to the validity of agency fees [Note 1] demanded by her exclusive bargaining representative, East Longmeadow Education Association (association). We transferred the case from the Appeals Court on our own motion. On appeal, McCormick contends that the association, in prohibiting her from speaking about the terms of a proposed contract at a contract ratification meeting, violated her statutory and constitutional rights. For the reasons discussed below, we affirm the commission's dismissal.

1. Facts. McCormick's employer and the association entered into a collective bargaining agreement (contract) for a three-year period extending from September 1, 1987, to August 31, 1990. The contract required bargaining unit employees who did not wish to join the association to pay an agency fee. McCormick was not an association member. The contract was ratified at a meeting convened by the association on September 15, 1987. All employees in the bargaining unit were permitted to vote on the contract at that meeting. However, the association forbade people who were not association members from commenting on, or asking questions about, any aspects of the proposed contract other than the agency fee clause. [Note 2]

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On November 23, 1987, the association sent McCormick a demand letter, asking that she pay either the agency fee or a scholarship fee for the 1987-1988 school year pursuant to the contract requirements. McCormick responded with a challenge, filed with the commission, to the propriety of the agency fee demand. When the association subsequently withdrew the demand, [Note 3] the commission dismissed the challenge as moot. On June 22, 1989, the association demanded the 1987-1988 agency fee as well as the 1988-1989 agency fee. McCormick again filed a challenge with the commission. [Note 4] On July 12, 1990, the commission dismissed her complaint. Pursuant to a request by McCormick filed on July 19, 1990, the commission reconsidered its dismissal. On January 4, 1991, it affirmed the dismissal.

McCormick challenged the agency fee on ten grounds before the commission. On appeal, however, she asks us to review only one of these claims, her claim that the agency fee is invalid because the association "[s]ilenced non members with respect to public questioning of the entire contract proposal at the ratification meeting -- i.e., allowed only fair share points of clarification from nonmembers prior to ratification vote" (emphasis in original). She argues that this prohibition on nonmember speech violated her statutory and constitutional rights. Because most of McCormick's arguments are raised for the first time on this appeal, they are not properly before us. Therefore, we do not reach them. Those arguments that are properly before us are without merit.

2. Discussion. McCormick's complaint before the commission was formulated solely as a challenge to the validity of

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the service fees. Her complaint was filed on one of the commission's own forms, entitled "Charge of Prohibited Practice Challenging a Service Fee." The following words appear directly under that heading: "Note: 456 CMR 17.06 provides that a public employee may challenge the validity or amount of a service fee by filing a prohibited practice charge with the commission. `Validity' shall mean whether or not there has been compliance with 456 CMR 17.03 and 17.05. `Amount' shall mean whether or not some or all of the service fee demanded by an employee organization is impermissible under 456 CMR 17.04(1)." McCormick wrote on the form that "this challenge is one of validity." Where McCormick was asked to state the basis of her challenge to the validity of the service fee, she refers the reader to "see attachment B," a two-page typewritten supplement of her own. [Note 5] At the top of her attachment B, McCormick wrote that "[t]he validity of the 1987-88 and 1988-89 fair share fee . . . is being challenged for violations of M. G. L. c. 150E ss. 12, 13, and 14; 456 CMR 17.03; 456 CMR 17.05; as well as the due process procedures established by [cases dealing with agency service fees]."

General Laws c. 150E, Section 12 (1990 ed.), provides, in part, that a "service fee shall not be imposed unless 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. 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

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be used to conduct the ratification vote." [Note 6] In sum, Section 12 requires unions, as a condition of imposing service fees on nonmembers, to give them notice and an opportunity to vote on the contract. Title 456 Code Mass. Regs. Section 17.03 (1) (1986), reiterates Section 12: "No service fee shall be imposed unless the collective bargaining agreement requiring its payment as a condition of employment has been formally executed pursuant to a ratification vote of a majority of all employees casting valid votes in person at a meeting or meetings or by mail in a mail ballot ratification procedure." McCormick does not dispute that she was notified of the ratification meeting and given an opportunity to vote on the contract. We cannot say that the commission abused its discretion in reading the language in Section 12 and 456 Code Mass. Regs. Section 17.03, [Note 7] as limited to its terms, and, accordingly, dismissing McCormick's complaint. See Operation & Maintenance Serv., Inc. Westover Job Corps Center/G.E. v. Labor Relations Comm'n, 405 Mass. 214 , 218 (1989) (construction that administrative agency charged with its enforcement gives statute is "distinct and profound exercise of discretion"); Quincy City Hosp. v. Labor Relations Comm'n, 400 Mass. 745 , 748 (1987) (commission has "substantial discretion . . . in its disposition of prohibited practice charges" and is "granted wide latitude in resolving complaints").

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In a memorandum filed with the commission, McCormick cited Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976), in support of her argument that the association "illegally den[ied nonmembers] the right to speak." The commission, in its dismissal, responded that Madison did not support her claim. We agree. The dispute in Madison centered on whether nonunion employees could express their views on a proposed contract at a public school board hearing. The fact that the hearing was open to the public was essential to the Supreme Court's holding that, "when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech." Id. at 176. The meeting at issue here was not a public one. [Note 8]

Most of McCormick's arguments on appeal, unlike her challenge before the commission, are cast as duty of fair representation claims. [Note 9] She argues that, in prohibiting her from speaking or asking questions about the contract, the association violated its duty of fair representation, which, she claims, is prohibited by G. L. c. 150E, Sections 12 and 5, as well as the Federal and State Constitutions. Because McCormick

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complained of an invalid agency fee before the commission, not a breach of the duty of fair representation, we do not consider those claims. [Note 10] McCormick cannot raise on appeal arguments that she failed to raise before the commission. See Seagram Distillers Co. v. Alcoholic Beverages Control Comm'n, 401 Mass. 713 , 724 (1988); Gurry v. Board of Pub. Accountancy, 394 Mass. 118 , 126 (1985); Therrien v. Labor Relations Comm'n, 390 Mass. 644 , 648 (1983); Albert v. Municipal Court of the City of Boston, 388 Mass. 491 , 493 (1983); Shamrock Liquors, Inc. v. Alcoholic Beverages Control Comm'n, 7 Mass. App. Ct. 333 , 335 (1979). [Note 11] Nowhere in her challenge to the validity of the agency fees does McCormick mention the "duty of fair representation." The first time that McCormick raised the duty of fair representation claim was after she had filed her July 19 request for reconsideration of the commission's dismissal of her charges. On September 18, 1990, she filed a statement in support of her request for reconsideration. In that request she alleged, for the first time, over three years after the ratification meeting at issue, that the association's method of conducting the ratification meeting "breaches the [association's] duty of fair representation and is also a violation of our First Amendment rights."

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Even if McCormick had raised the duty of fair representation claim in her first challenge, it would have been time barred. [Note 12] McCormick had six months from the date of the conduct complained of to file her duty of fair representation charge, 456 Code Mass. Regs. Section 15.03 (1986); Town of Hanson & Local 2713, Hanson Permanent Fire Fighters Ass'n, 16 M.L.C. 1352 (1989); the ratification meeting had taken place eight months earlier. By the time McCormick raised the duty of fair representation claim on September 18, 1990, it was barred by the relevant State statute of limitations. See Graham v. Quincy Food Serv. Employees Ass'n & Hosp., Library & Pub. Employees Union, 407 Mass. 601 , 613 (1990) (three-year limitations period for duty of fair representation claim). [Note 13]

The commission's dismissal of McCormick's complaint is affirmed.

So ordered.


FOOTNOTES

[Note 1] Agency fees, also known as service or fair share fees, are the proportional share of union dues that nonmembers must pay to a union to help defray "collective bargaining, contract administration, and grievance adjustment" expenses. Harrison v. Massachusetts Soc'y of Professors/Faculty Staff Union/MTA/NEA, 405 Mass. 56 , 61 (1989); School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70 , 78 (1982). These fees are assessed to avoid the "free rider" problem; that is, if a bargaining unit's employees could get all of the benefits of unionization without any of the burdens (e.g., union dues), there would be little incentive for anyone to join the union. By law, these agency fees may not include any sums for the support of "social, political, or speech activities of the [union]." Id. Accord Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292, 294 (1986); Ellis v. Brotherhood of Ry., Airline & S.S. Clerks, Freight Handlers, Express & Station Employees, 466 U.S. 435, 447 (1984).

[Note 2] The notice of the ratification meeting informed those invited to attend that "[m]embers of the [association] may ask for clarification and make comments on any part of the contract proposals. Non members of the [association] may ask for clarification and make comments on just the fair share section."

[Note 3] The association withdrew its demand because the demand letter was mailed before the collective bargaining agreement had been executed, in violation of the commission's regulations. 456 Code Mass. Regs. Section 17.03 (1) (1986).

[Note 4] Other employees in the bargaining unit who were not association members joined McCormick in her charges. The commission informally consolidated all charges, resolving them in a single opinion. In her brief, McCormick states "the parties agreed to assemble the record only in McCormick's appeal, and be bound by the outcome of her case."

[Note 5] Following the sections where the charging party is to fill out the basis of the challenge, the form reads, "[b]y these acts, the Bargaining Agent listed above has violated M. G. L. c. 150E Section 10 (b) (1)." Section 10 (b) (1) provides that "[i]t shall be a prohibited practice for an employee organization or its designated agent to . . . [i]nterfere, restrain, or coerce any employer or employee in the exercise of any right guaranteed under this chapter."

[Note 6] The last sentence of Section 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." McCormick argues that we should derive from this language a right of nonmembers "to speak and vote on the collective bargaining agreement in exactly the same way as [members]." Because this is a duty of fair representation claim, we do not reach it. See infra at 169-170. It would be especially unwise for us to reach this particular claim in this case, because we do not have the benefit of the commission's construction of this part of Section 12. McCormick did not raise this duty of fair representation argument before the commission, and there are no prior commission decisions addressing the meaning and scope of the last sentence of Section 12.

[Note 7] The other statutes and regulations cited by McCormick as the basis for her challenge are not relevant to this appeal.

[Note 8] We note additionally that the association, in order to ratify the contract, was not required to hold a meeting at all. It could have conducted the ratification vote by mail. General Laws c. 150E, Section 12, uses the phrase "any other method which will be used to conduct the ratification vote." The commission's regulations permit mail ballot ratification. 456 Code Mass. Regs. Section 17.03 (1) and (2).

[Note 9] General Laws c. 150E, Section 5, contains the fair representation requirement. It reads, in pertinent part, that "[t]he 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." See Leahy v. Local 1526, Am. Fed'n of State, County, & Mun. Employees, 399 Mass. 341 , 348 (1987) ("even if the Massachusetts statute did not provide for the duty of fair representation, the courts would infer it as a constitutional requirement"). A union breaches its duty of fair representation if its "actions toward an employee are `arbitrary, discriminatory, or in bad faith.'" Graham v. Quincy Food Serv. Employees Ass'n & Hosp., Library & Pub. Employees Union, 407 Mass. 601 , 606 (1990), quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967).

[Note 10] In responding to another of McCormick's claims, one which is not before us on this appeal, the commission wrote that (1) the alleged prohibited practice occurred more than six months before the charges were filed and hence was barred by the relevant statute of limitations and (2) "this portion of the charges of prohibited practice appears to allege that the Union breached its duty to represent them fairly in violation of Section 10 (b) (1) of the Law, and therefore cannot appropriately be addressed by the Commission as part of a challenge to the validity of a demand for a service fee."

[Note 11] McCormick, who proceeded pro se until the time she filed her motion for reconsideration, argues that "[t]eachers [a]re [n]ot [e]xpected [t]o [b]e [l]awyers." This argument is of little avail. Pro se litigants are bound by the same rules of procedure as litigants represented by counsel. Mmoe v. Commonwealth, 393 Mass. 617 , 620 (1985). McGowan v. Director of the Div. of Employment Sec., 388 Mass. 1003 , 1004 (1983). See International Fidelity Ins. Co. v. Wilson, 387 Mass. 841 , 847 (1983). Accord Andrews v. Bechtel Power Corp., 780 F.2d 124, 140 (1st Cir. 1985), cert. denied, 476 U.S. 1172 (1986).

[Note 12] The challenge to the validity of the agency fees, however, was timely filed. Service of the demand for the fee triggers the running of the limitations period for such challenges. 456 Code Mass. Regs. Section 17.06 (2). The demand had been served less than six months before McCormick filed her challenge to the validity of the agency fee.

[Note 13] Although the association has the burden of pleading and proving an affirmative statute of limitations defense before the commission, Town of Wayland & IBPO, 5 M.L.C. 1738, 1741 (1979); City of Pittsfield & Pittsfield Permanent Firemen's Ass'n, 4 M.L.C. 1905, 1908 (1978), here the association could not be expected to plead and prove a defense to a claim of which it did not have notice.