BEN BRANCH & others [Note 1] vs. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & others. [Note 2]

KAFKER, J. Massachusetts, like most States, allows public sector employees in a designated bargaining unit to elect a union by majority vote to serve as their exclusive representative in collective bargaining with their government employer. No eligible employee is required to join a union, but unions have historically collected mandatory "agency fees" from nonmembers in the bargaining unit to fund their operations as the exclusive representatives of members and nonmembers alike. In the instant case, four public employees raise challenges under the First Amendment to the United States Constitution to both the exclusive representation and the mandatory agency fee provisions of G. L. c. 150E.

The employees initially filed charges of prohibited practice before the Department of Labor Relations (DLR). A DLR investigator dismissed the case, and the Commonwealth Employment Relations Board (board), the three-member board within the DLR responsible for reviewing investigator decisions, upheld the dismissal. The employees appealed to the Appeals Court, and while the case was on appeal, the United States Supreme Court, in Janus v. American Fed'n of State, County, & Mun. Employees, Council 31, 138 S. Ct. 2448, 2486 & n.28 (2018), held that all State "agency-fee laws . . . violate the [First Amendment]" by compelling nonmembers of public sector unions to support their unions' speech. The employees argue that Janus requires us to overturn the board's decision dismissing their charges and declare the agency fee provision of the collective bargaining statute, G. L. c. 150E, § 12, unconstitutional on its face, and the exclusive representation provisions of the statute, G. L. c. 150E, §§ 2, 4, 5, 12, unconstitutional as applied to the employees.

We hold that the employees' constitutional challenge to the agency fee provision is moot because the unions voluntarily stopped collecting agency fees to comply with Janus. It is not reasonably likely that they will recommence collecting the fees, as the Attorney General and the DLR have issued guidance explaining

Page 812

that Janus categorically prohibits public sector unions from collecting agency fees from members of a bargaining unit who do not belong to the union and do not consent to pay the fees, and the question of law is now settled. We further hold that the employees' First Amendment challenge to the exclusive representation provisions of G. L. c. 150E is foreclosed by Supreme Court precedent and thus lacks merit. We accordingly vacate as moot the board's decision with respect to the constitutionality of the agency fee provisions of G. L. c. 150E and affirm the board's decision with respect to the exclusive representation provisions of G. L. c. 150E. [Note 3]

1. Facts and procedural history. The significant facts in this case are not disputed. As mentioned, the employees are public sector employees working in designated bargaining units. At all relevant times, however, they were not members of the unions that served as their exclusive bargaining representatives. [Note 4] The collective bargaining agreements between the employers and the unions nonetheless contained provisions authorizing the unions to collect agency fees from nonmembers. [Note 5] The unions also maintained

Page 813

rules that nonmembers were "not entitled . . . to participate in affiliate decision-making," specifically to attend union meetings (other than contract ratification meetings) or "vote on election of officers, bylaw modifications, contract proposals or bargaining strategy."

In the spring of 2014, the unions requested that the employees pay their annual agency fees for the 2013-2014 academic year. In response, the employees filed complaints with the DLR alleging that these fee requests constituted a prohibited practice on the part of the unions and the employers. [Note 6] The employees alleged that the requirement that they pay agency fees constituted a prohibited practice under G. L. c. 150E, §§ 10 (a) (1), (3), (b) (1), and 12, because "compulsory union fees . . . are unconstitutional under the First and Fourteenth Amendments [to the United States Constitution]." [Note 7] More specifically, the employees claimed that G. L. c. 150E, § 12, the statutory provision that authorizes public sector unions to collect agency fees, was unconstitutional on its face. [Note 8] They also claimed that this statute was unconstitutional as applied to them because it required them to pay agency fees "even though they are not entitled to attend union meetings or be involved in any union activities such as having a voice or a vote on bargaining representatives, contract proposals or bargaining strategy." Finally, they challenged the constitutionality of the exclusive representation provisions of G. L. c. 150E, § 5, for essentially the

Page 814

same reasons. [Note 9]

A DLR investigator took affidavits from the employees and the unions, and then issued a decision in November 2014 dismissing the charges. [Note 10] In her decision, the investigator concluded that the DLR did not have authority to address the employees' constitutional arguments. Instead, she only considered whether the employers and the unions had violated G. L. c. 150E. She concluded that G. L. c. 150E, § 5, expressly authorized the unions to serve as the employees' exclusive representatives and that they were permitted to enforce membership rules restricting service on negotiating committees to union members. She further concluded that, under controlling precedent of this court and the United States Supreme Court, neither the employers nor the unions engaged in a prohibited practice by requiring nonmember employees to pay agency fees to a public sector union pursuant to G. L. c. 150E, § 12.

The employees sought review of the investigator's dismissal of their charges by the board pursuant to G. L. c. 150E, § 11. They conceded in their briefing that "existing precedent" required the board to uphold the dismissal of the unfair labor practice charges but appealed in order "to exhaust administrative remedies" and preserve their constitutional arguments for appellate review. In February 2015, the board affirmed the dismissal in its entirety for the reasons set forth in the investigator's decision. The employees then appealed from the board's decision to the Appeals Court. That court granted the unions' motion to intervene and stayed the case until the Supreme Court issued Janus in June 2018. We then transferred the case to this court on our own motion and ordered supplemental briefing.

Page 815

2. Mootness. We first address the employees' argument that Janus requires us to overturn the board's decision upholding the unions' collection of agency fees pursuant to the agency fee provision, G. L. c. 150E, § 12. The Supreme Court, in Janus, 138 S. Ct. at 2486, held that "States and public sector unions may no longer extract agency fees from nonconsenting employees," and the board and the unions accordingly concede that "public employers and public-sector unions can no longer collect agency fees from nonunion employees unless they affirmatively consent." The board argues that both the employers and unions have voluntarily complied with Janus by no longer permitting the nonconsensual collection of agency fees from employees who are not in a union, and hence that the portion of its decision dismissing the employees' constitutional challenges to the imposition of agency fees and the manner of their collection should be vacated and dismissed as moot. [Note 11] We agree with the board, and

Page 816

thus vacate that portion of the board's decision as moot.

It is a "general rule that courts decide only actual controversies . . . and normally do not decide moot cases." Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421 Mass. 502, 504 (1995). "[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Bronstein v. Board of Registration in Optometry,

Page 817

403 Mass. 621, 627 (1988). [Note 12] A moot case is one where a court can order "no further effective relief." Lawyers' Comm. for Civ. Rights & Economic Justice v. Court Adm'r of the Trial Court, 478 Mass. 1010, 1011 (2017).

Here, the unions presented affidavits [Note 13] demonstrating that they did not collect any agency fees from the employees while their complaints were pending, stopped collecting agency fees entirely in anticipation of Janus, and no longer collected agency fees from nonmembers once Janus was issued in order to comply with the decision. [Note 14] Furthermore, both the Attorney General and the DLR issued guidance explaining that Janus prohibits public employers and public sector unions from collecting agency fees from members of a bargaining unit who do not belong to the union and do not consent to pay the fees. [Note 15] And, as mentioned, the unions and

Page 818

employers concede that they are bound by Janus. In light of these significant steps by the unions and the unequivocal legal guidance issued by the relevant agencies, we are not persuaded by the employees' claim that there is "no reason to expect any change" in the challenged conduct involving agency fees. [Note 16] Nor is this the exceptional case where we exercise our discretion to decide a moot case. [Note 17] Because no agency fee demands are currently being made on the employees, and because any such demands are not likely to recur, there is no "actual controvers[y]" for the court to decide and no "effective relief" for it to order. Murphy v. National Union Fire Ins. Co., 438 Mass. 529, 533 (2003). See Lawyers' Comm. for Civ. Rights & Economic Justice, 478 Mass. at 1011.

Page 819

We therefore hold that the unions' cessation of agency fee collection to comply with Janus and the issuance by the Attorney General and the DLR of guidance categorically prohibiting their collection has rendered moot the employees' challenge to the agency fee provisions of G. L. c. 150E. [Note 18]

3. Constitutionality of exclusive representation. The employees also challenge the constitutionality of their unions' exclusive representation of their employees in collective bargaining, claiming that exclusive representation compels them to associate with the unions in violation of the First Amendment. [Note 19] We conclude that, under controlling Supreme Court precedent, neither the exclusive representation provisions of G. L. c. 150E nor the unions' internal policies and procedures barring nonmembers from various collective bargaining activities violate the First Amendment.

General Laws c. 150E, § 4, provides that "[p]ublic employers may recognize an employee organization designated by the majority of the employees in an appropriate bargaining unit as the exclusive representative of all the employees in such unit for the purpose of collective bargaining." In turn, G. L. c. 150E, § 5, provides that the "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." We have explained that the "exclusive representation concept" is "a basic building block of

Page 820

labor law policy under G. L. c. 150E." Service Employees Int'l Union, AFL-CIO, Local 509 v. Labor Relations Comm'n, 431 Mass. 710, 714-715 (2000). The same is true under Federal labor relations law. [Note 20]

Our analysis of exclusive representation is guided by an uninterrupted line of decisions in which the Supreme Court has affirmed its "long and consistent adherence to the principle of exclusive representation tempered by safeguards for the protection of minority interests" provided by the duty of fair representation. Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50, 65 (1975). Exclusive representation, as the Supreme Court has explained, is necessary to effectively and efficiently negotiate collective bargaining agreements and thus promote peaceful and productive labor-management relations. See, e.g., National Labor Relations Bd. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967) ("National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions. The policy therefore extinguishes the individual employee's power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees"). See also Carlson, The Origin and Future of Exclusive Representation in American Labor

Page 821

Law, 30 Duq. L. Rev. 779, 780 (1992) ("Majority-rule based exclusivity bolsters a union's bargaining position, legitimizes its complete control over employee bargaining within a unit and, even from the employer's perspective, simplifies the bargaining process. Collective bargaining on any other basis faces considerable practical difficulties" [footnote omitted]). [Note 21]

In particular, our analysis of the constitutionality of exclusive representation is informed by Knight v. Minnesota Community College Faculty Ass'n, 460 U.S. 1048 (1983) (Knight I); Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984) (Knight II); and Janus itself. In the two Knight decisions and Janus, the majority and the dissents alike recognized and respected the importance of exclusive representation in the collective bargaining process, at least in the negotiation of the terms and conditions of employment.

In Knight I, 460 U.S. at 1048, a case involving faculty at State community colleges, the Supreme Court summarily affirmed the portion of the lower court's decision concluding that it was constitutional to limit collective bargaining sessions (known as "meet and negotiate" sessions) regarding the terms and conditions of employment to the faculty's exclusive representative. See Knight II, 465 U.S. at 279 ("The Court's summary affirmance . . . rejected the constitutional attack on [the State statute's] restriction

Page 822

to the exclusive representative of participation in the 'meet and negotiate' process"). In summarily affirming the lower court, it thus appeared noncontroversial to the Court to limit collective bargaining regarding the terms and conditions of employment to the exclusive representative and to recognize the "constitutionality of exclusive representation bargaining in the public sector." Knight v. Minnesota Community College Faculty Ass'n, 571 F. Supp. 1, 4 (D. Minn. 1982), aff'd in part, 460 U.S. 1048 (1983). This decision is in line with earlier Supreme Court decisions that recognize and respect the need for an exclusive bargaining representative. See Emporium Capwell Co., 420 U.S. at 65. See also notes 20 and 21, supra (citing cases).

In Knight II, 465 U.S. at 292, the Court extended the right of exclusive representation to "meet and confer" sessions with the employer regarding university governance and academic matters outside the scope of the mandatory bargaining that took place in the "meet and negotiate" sessions deemed constitutional in Knight I. Although Knight II, supra at 288, presented a more difficult question than exclusive representation in the collective bargaining context, and one that divided the Court, the majority held that the nonmembers' "speech and associational rights . . . [had] not been infringed" even by this type of government-imposed exclusive representation. Specifically, the Court observed that exclusive representation was constitutional because the First Amendment creates no "government obligation to listen" to particular voices on policy questions, and the State's right to designate the faculty union as the exclusive representative for the "meet and confer" sessions (as well as the "meet and negotiate" sessions) was within its inherent right to "choose its advisers." Id. at 288 & n. 10.

The Court further explained that such exclusive representation did not impair the nonmember employees' associational freedoms, as the nonmembers were "not required to become members of the [union]." Id. at 289. Although the nonmembers "[might] well [have felt] some pressure to join the exclusive representative" to gain a "voice" in the "meet and confer" sessions, such pressure was "no different from the pressure to join a majority party that persons in the minority always feel." Id. at 289-290. This sort of pressure, the Court explained, is inherent both in majority rule, which is a guiding principle of "our system of government," and in the collective bargaining process; as such, "it does not create an unconstitutional inhibition on associational freedom." Id. at 290.

Page 823

In Janus, a challenge to the agency fee provision of a State collective bargaining law, the Court did not in any way question the centrality of exclusive representation, at least in the collective bargaining process. There, the Court "noted" that exclusive representation provided the union with the "exclusive right to speak for all the employees in collective bargaining" and that the employer was "required by state law to listen to and bargain in good faith with only that union." Janus, 138 S. Ct. at 2467. Indeed, the Court expressly observed that it is "not disputed that the State may require that a union serve as exclusive bargaining agent for its employees," and that, with the exception of laws permitting mandatory agency fees, "States can keep their labor-relations systems exactly as they are." Id. at 2478, 2485 n.27. See id. at 2489 (Kagan, J., dissenting) ("The majority does not take issue with the [concept of exclusive representation]"). And the Court assumed that "labor peace," defined as the avoidance of "the conflict and disruption" that would occur if employees were "represented by more than one union," was a "compelling state interest," but that mandatory agency fees were not "inextricably linked" to such peace (citation omitted). Id. at 2465. It was this "compelling state interest" that apparently justified the "significant impingement on associational freedoms that would not be tolerated in other contexts." Id. at 2478. [Note 22]

Page 824

Janus and the other Supreme Court cases have thus not questioned the constitutionality of exclusive representation. The Court has, however, inextricably coupled exclusive representation with a union's duty of fair representation. See, e.g., Janus, 138 S. Ct. at 2469 (duty of fair representation "is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit"). As the exclusive representative of both members and nonmembers, the union has a duty "fairly to represent all [employees in the bargaining unit], both in its collective bargaining with [the employer] . . . and in its enforcement of the resulting collective bargaining agreement." Vaca v. Sipes, 386 U.S. 171, 177 (1967). [Note 23]

The focus of this duty in the negotiating context has not been on input but on output, i.e., on the results of the collective bargaining process. Most significantly, the "union may not negotiate a collective-bargaining agreement that discriminates against nonmembers." Janus, 138 S. Ct. at 2468. Cf. Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953) ("mere existence of . . . differences" in way that "negotiated agreement affect[s] individual employees and classes of employees" will not violate duty of fair representation so long as differences are reasonable and negotiated in good faith). By contrast, the duty of fair representation

Page 825

has not been found to apply to how the union selects its negotiators and develops its proposals. See National Labor Relations Bd. v. Financial Inst. Employees of Am., Local 1182, Chartered by United Food & Commercial Workers Int'l Union, AFL-CIO, 475 U.S. 192, 205 (1986) (Financial Inst. Employees), quoting Allis-Chalmers Mfg. Co., 388 U.S. at 191 (explaining that union may "select union officers and bargaining representatives" without input of nonmembers because "[n]on-union employees have no voice in the affairs of the union"); Standard Fittings Co. v. National Labor Relations Bd., 845 F.2d 1311, 1319 (5th Cir. 1988), citing Financial Inst. Employees, supra (duty of fair representation does not give nonmembers right to "ratify a collective-bargaining agreement or select union officers and bargaining representatives"); Branch 6000, Nat'l Ass'n of Letter Carriers v. National Labor Relations Bd., 595 F.2d 808, 811 (D.C. Cir. 1979) ("non-union employees properly may be excluded" from processes of formulating union's negotiating position without violating duty of fair representation). See also Southern Worcester County Reg'l Vocational Sch. Dist. v. Labor Relations Comm'n, 377 Mass. 897, 904 (1979) ("selection of the union negotiating team [is] an internal union matter"); George v. Local Union No. 639, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 100 F.3d 1008, 1010-1011, 1014 (D.C. Cir. 1996) (union did not violate duty of fair representation by not permitting member from serving on negotiating committee or attending negotiating meetings); Sears v. Automobile Carriers, Inc., 711 F.2d 1059 (6th Cir. 1983) (unpublished) (union did not commit breach of duty of fair representation by removing member from negotiating committee); Bass v. International Bhd. of Boilermakers, 630 F.2d 1058, 1063 (5th Cir. 1980) ("internal union decisions" are "not circumscribed by the constraints of the [duty of fair representation]"); Matter of Phalen v. Theatrical Protective Union No. 1, Int'l Alliance of Theatrical & Stage Employees, A.F.L.-C.I.O., 22 N.Y.2d 34, 44, cert. denied, 393 U.S. 1000 (1968) ("an action for breach of the duty of fair representation by one who has been discriminated against, although it may afford him an important remedy, is no substitute for democratic participation in the affairs of the union. Unless an individual is a member of the union, he can have no voice in the selection of its officers who are his representatives in the collective bargaining process"). Cf. Anderson v. Commonwealth Employment Relations Bd., 73 Mass. App. Ct. 908,

Page 826

909 n.5 (2009) (union rule that retired members could not vote on collective bargaining agreements did not "violate[] the duty of fair representation" because "the plaintiffs' voting claim" was "a purely internal matter").

We now address the employees' contention that they are not challenging exclusive representation "in the abstract," but only insofar as the unions use exclusive representation to deprive them of "a voice and a vote in their workplace conditions" with respect to bargaining representatives, contract proposals, and bargaining strategy unless they join the unions and support their politics. We conclude that this argument is likewise without merit.

As an initial matter, we address the employees' claim that the unions are involved in "State action" for purposes of a First Amendment challenge to their internal rules restricting the participation of nonmembers in certain meetings or strategy sessions. As then Circuit Judge Breyer, writing for the United States Court of Appeals for the First Circuit, explained, the "link between the union's [government-created] bargaining power and its membership requirements is too distant to impose constitutional restrictions." Hovan v. United Bhd. of Carpenters & Joiners of Am., 704 F.2d 641, 645 (1st Cir. 1983). He further concluded that, while exclusive representation is a creature of statute, internal union rules not dictated by statute do not constitute State action, and holding otherwise "would radically change not only the legal, but the practical, nature of the union enterprise." Id. at 642-643. Accord United Steelworkers of Am., AFL-CIO-CLC v. Sadlowski, 457 U.S. 102, 104, 121 n.16 (1982) (union's adoption of "outsider rule" prohibiting nonmembers from contributing to union elections did not violate "nonmembers' constitutional rights of free speech and free association" because "the union's decision to adopt an outsider rule does not involve state action"); Kidwell v. Transportation Communications Int'l Union, 946 F.2d 283, 299 (4th Cir. 1991), cert. denied, 503 U.S. 1005 (1992) (for purposes of First Amendment challenge, "the internal membership and procedural decisions of a union . . . , although having an impact on those who may participate in the union's duties in carrying out its role as collective bargaining representative, do[] not constitute state action"); Turner v. Air Transport Lodge 1984 of Int'l Ass'n of Machinists & Aerospace Workers, AFL-CIO, 590 F.2d 409, 413 n.1 (2d Cir. 1978), cert. denied, 442 U.S. 919 (1979) (per curiam) (Mulligan, J., concurring) ("since union constitutions and rules are formulated and enforced by the union, a private entity,

Page 827

no federal constitutional right of free speech is . . . involved"). While these cases involved private sector unions, State action has been found lacking in the public sector union context as well. See, e.g., Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 817 (7th Cir.), cert. denied, 558 U.S. 1049 (2009) ("Here, it was the Union, rather than the employer, that barred the plaintiffs from membership. And union actions taken pursuant to the organization's own internal governing rules and regulations are not state actions"); Harmon v. Matarazzo, 162 F.3d 1147 (2d Cir.) (unpublished), cert. denied, 525 U.S. 1042 (1998) (police officer's Federal civil rights claim against police union "not actionable" because union "is not a state actor"); Messman v. Helmke, 133 F.3d 1042, 1044 (7th Cir. 1998) ("a union's internal governing rules usually are not subject to First Amendment prohibitions"); Jackson v. Temple Univ. of the Commonwealth Sys. of Higher Educ., 721 F.2d 931, 933 (3d Cir. 1983) (public employee's Federal civil rights claim against union not actionable where plaintiff failed "to set forth any facts suggesting that the state was responsible for the Union or that the Union was acting under color of state law in deciding not to bring [his] grievance to arbitration"). We conclude that here the link between exclusive representation and the unions' membership requirements are likewise too attenuated to constitute State action.

Moreover, even if we were to assume that the link between statutorily required exclusive representation and union membership requirements might be sufficient in certain circumstances to satisfy the State action requirement, we would still discern no constitutional problems. Employees in the bargaining unit received a vote on whether to form their unions; those opposed to having a union lost that vote. The "majority-rule concept is . . . unquestionably at the center of our federal labor policy," and hence the "complete satisfaction of all who are represented is hardly to be expected" (citations omitted). Allis-Chalmers Mfg. Co., 388 U.S. at 180. See Emporium Capwell Co., 420 U.S. at 62 ("majority rule" is "[c]entral to the policy of fostering collective bargaining"). Indeed, as the Court in Knight II, 465 U.S. at 290, observed, majority rule is a fundamental aspect of American democratic government. Those who lose elections often do not have representatives speaking in favor of their personal policy preferences, at least until the next election. Like these members of the electorate, the employees have another chance to vote: they can vote to decertify the union after a certain period of time. See G. L. c. 150E,

Page 828

§ 4. See also Watertown v. Watertown Mun. Employees Ass'n, 63 Mass. App. Ct. 285, 291-292 (2005) (describing "the employees' right to select new union representation" as "a collective bargaining right that is beyond the arbitrator's powers" to penalize).

In the meantime, their inability to select bargaining representatives or participate in bargaining sessions is a consequence of losing the election regarding union representation and choosing not to join the union after having lost. This is an intended and expected feature of exclusive representation. See Emporium Capwell Co., 420 U.S. at 62 (in creating exclusive representation, Congress intended "regime of majority rule" in which interests of some employees "might be subordinated to the interest of the majority"). Hence, "exclusive bargaining representation by a democratically selected union does not, without more, violate the right of free association on the part of dissenting non-union members of the bargaining unit." D'Agostino v. Baker, 812 F.3d 240, 244 (1st Cir.), cert. denied, 136 S. Ct. 2473 (2016).

Moreover, as discussed, conflicting representatives in collective bargaining is not practicable: to have the employee representatives speak with one voice at the bargaining table is critical to the efficient resolution of labor-management disputes and protects the bargaining unit employees from divide-and-conquer tactics by employers. See note 21, supra (citing cases). Thus, as the Court in Knight II, 465 U.S. at 291, concluded, "The state has a legitimate interest in ensuring that its public employers hear one, and only one, voice presenting the majority view of its professional employees on employment-related policy questions," and exclusive representation is a "rational means of serving that interest."

Finally, the nonunion employees, even if they do not have input into bargaining committees or bargaining proposals, remain protected by the duty of fair representation. As mentioned, that duty ensures that the unions may not negotiate a collective bargaining agreement that discriminates against nonmembers in the terms and conditions of employment. See Janus, 138 S. Ct. at 2468; Emporium Capwell Co., 420 U.S. at 64 ("by the very nature of the exclusive bargaining representative's status as representative of all unit employees, Congress implicitly imposed upon it a duty fairly and in good faith to represent the interests of minorities within the unit"). Here, the employees have not plausibly alleged that the unions committed a breach of the duty of fair representation for the reasons discussed supra. Thus, we conclude, it is not a breach of

Page 829

the duty of fair representation to prevent nonmembers from participating in the selection of bargaining committees or the development of bargaining proposals. The Supreme Court has deemed such exclusive representation to be constitutional.

4. Conclusion. For the foregoing reasons, we vacate as moot the board's decision with respect to the agency fee provisions of G. L. c. 150E, § 12, and we affirm the board's decision with respect to the exclusive representation provisions of G. L. c. 150E, §§ 2, 4, 5, and 12.

So ordered.