Justices Won't Hear Massachusetts Child-Care Aides' Case

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By Lawrence E. Dubé

June 13 — The U.S. Supreme Court declined to review an appellate court ruling that a Massachusetts law for collective bargaining between a state agency and a union doesn't on its face violate the First Amendment rights of child-care providers who aren't required to join the union or make financial contributions ( D'Agostino v. Baker, U.S., No. 15-1347, cert. denied 6/13/16 ).

Kathleen D'Agostino and other providers argued in their petition that the justices should hear the case “to make clear that exclusive representation, like any other mandatory expressive association, must be justified by overriding state interests to be constitutional.”

Massachusetts officials and the union that represents the child-care providers waived their right to respond to the petition.

Challenge to State Bargaining Law

D'Agostino and other providers challenged Massachusetts law that treats family child-care providers who receive government payments as state employees for purposes of collective bargaining.

The state Department of Early Education and Care bargains with Service Employees International Union Local 509. Employees covered by the bargaining relationship are not required to join the union or pay union dues or fees.

D'Agostino argued that granting the union the status of an exclusive bargaining agent violated the First Amendment rights of employees to petition their state government without union representation.

The U.S. District Court for the District of Massachusetts dismissed the challenge (98 F. Supp. 3d 109, 202 LRRM 3514 (D. Mass. 2015)), and the U.S. Court of Appeals for the First Circuit affirmed in February (812 F.3d 240, 205 LRRM 3337 (1st Cir. 2016)).

Writing for the First Circuit, retired Supreme Court Justice David H. Souter said D'Agostino and other caregivers who were not union members couldn't establish that giving an elected union the right to bargain for public employees violated their rights under the First Amendment because they retain the right to present grievances directly to their public employer and may speak publicly outside the union.

Child-Care Aides Cited Urgent First Amendment Issue

In their petition for Supreme Court review, the child-care aides said the First Circuit ruling conflicts with Supreme Court precedents requiring that compelled or mandatory associations satisfy exacting First Amendment scrutiny.

The appeals court ruling “gives the government untrammeled authority to appoint exclusive representatives to speak for citizens in their relations with government,” the petition argued.

The authority conferred on state government by the Massachusetts bargaining law “not only offends First Amendment values, but turns basic precepts of democracy on their head,” the petitioners argued. They called it “imperative” that the Supreme Court make it clear that exclusive union representation of public employees can be justified only by “compelling state interests.”

The petitioners challenged the First Circuit's argument that they are not subject to a violation of the First Amendment because they need not join the union or pay dues or fair share fees to the organization.

“SEIU's authority to exclusively represent family child care providers in their relations with the Commonwealth necessarily associates providers with SEIU and its expressive activities,” the petitioners argued, asserting that such authority “infringes on the First Amendment rights of those providers who, like the Petitioners, do not wish to associate with this polarizing advocacy group or its agenda.”

Petition Called Knight Distinguishable

In rejecting D'Agostino's claims, the First Circuit cited Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271, 115 LRRM 2785 (1984), for the proposition that the First Amendment rights of public college faculty members weren't violated by giving a union the right to act as a bargaining agent and to discuss educational policy issues that were outside the scope of collective bargaining.

However, D'Agostino argued that Knight addressed a narrow question about a college's excluding faculty members from union bargaining sessions.

The decision “cannot bear the incredible weight” of supporting an argument that exclusive union representation is exempt from First Amendment scrutiny, the petition argued.

William L. Messenger of the National Right to Work Legal Defense Foundation in Springfield, Va., was counsel of record for the child-care providers.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Summaries of labor and employment law cases denied Supreme Court review appear in Section E.

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