STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 14-29
Issued: March 20, 2015

Andrew D. Martin,
Complainant

v.

AFSCME Council 93,
Respondent.

 

ORDER

 

	 
     The Complaint in this matter was filed by Andrew D. Martin 
on May 20, 2014, alleging that AFSCME Council 93 violated 26 
M.R.S.A.  964(2)(A) as well as article 4.2.1 of the collective 
bargaining agreement between AFSCME and the City of Portland.  
The Complainant charges that the Union interfered with his 
rights under the Municipal Public Employees Labor Relations Act 
(the "Act") by refusing to reinstate his membership in the Union 
and making him pay an agency service fee without his consent.  
 
     At the prehearing conference on October 2, 2014, the 
Complainant represented himself and Joseph E. DeLorey, Esq., 
represented the Respondent, AFSCME Council 93.  Also present was 
Ms. Sylvia Hebert, Staff Representative for the Union.  During 
the prehearing conference, the parties summarized their 
respective positions and agreed that there did not appear to be 
any material facts in dispute.  Both parties were interested in 
resolving the matter without having a full evidentiary hearing 
before the Board.  Accordingly, the parties agreed to have the 
Prehearing Officer issue a recommended order based on the 

[end of page 1]

parties' written submissions, including the prohibited practice 
complaint, the Union's response, and both parties' pre-hearing 
submissions.  The parties would be given the opportunity to 
respond to or comment on the Recommended Order prior to it being 
presented to the Board.  The Prehearing Officer's Recommended 
Order was issued on October 29, 2014.  The Complainant timely 
requested that the matter be reviewed by the full Board.  No 
further written briefs were filed, but the parties presented 
oral argument to the Board on January 20, 2015.

 
                          JURISDICTION
 
     Andrew D. Martin is a public employee within the meaning of 
26 M.R.S.A.  962(6) and AFSCME Council 93 is the bargaining 
agent within the meaning of 26 M.R.S.A.  962(2).  The Board's
jurisdiction to hear this case lies in 26 M.R.S.A.  968(5).        
 

                        FINDINGS OF FACT
 
1.  The Complainant, Andrew D. Martin, works for the City of 
    Portland in a job classification that is included in a 
    bargaining unit of city employees.  The Union, AFSCME 
    Local 1373, is the exclusive bargaining representative for this 
    unit and has been at all times relevant to this complaint.

2.  In 2010, Mr. Martin was expelled from the Union for reasons 
    that are not relevant to the complaint before us. 

3.  After his expulsion from AFSCME, and until March of 2014, 
    neither union dues nor fair share fees were deducted from 
    Mr. Martin's paycheck.


[end of page 2]


4.  On March 21, 2014, Mr. Martin first noticed that his 
    paycheck had a deduction of $5.90 with a notation saying 
    "CEBA Dues Fair Sha".  He called the payroll person who 
    indicated that Tom Caiazzo in Human Resources had instructed 
    her to start the deductions.  Mr. Martin called Mr. Caiazzo 
    who told him that the fair share fee deduction had been 
    started at the request of AFSCME.  In response to his 
    question as to why he did not receive any notice of the 
    deduction, Mr. Caiazzo told him that Sylvia Hebert, the 
    AFSCME Staff Representative, had said that she was going to 
    mail a letter to Mr. Martin.

5.  Mr. Martin called Ms. Hebert and she indicated that there 
    was some confusion as to whether the address they had was 
    the proper mailing address for him.  He confirmed that the 
    address they had was his correct address.  

6.  The letter Ms. Hebert sent to Mr. Martin, although dated 
    March 5, 2014, was not mailed to him until March 21, 2014, 
    at the earliest.  The letter to Mr. Martin stated:
 
       March 5, 2014
       Andrew Martin
       P.O. Box 11611
       Portland, ME  04104

       Dear Mr. Martin:

       Enclosed please find letter sent this date to the City of 
       Portland with regard to your payment of fair share fees 
       per the collective bargaining agreement.

       If you have any questions, please feel free to contact 
       me.


[end of page 3]


       Sincerely,

 
       Sylvia Hebert
       AFSCME Staff Representative
       shebert@afscmecouncil93.org
       207-620-3910 (office direct)
       SH/lb
       Enc.

7.  The letter from Ms. Hebert to Mr. Caiazzo, stated:
 
       March 5, 2014

       Tom Caiazzo
       Employee Relations Manager
       City of Portland
       389 Congress Street
       Portland, ME  04101

       Dear Mr. Caiazzo:

       It has come to my attention that Andrew Martin is not 
       paying a fair share fee as required in the Collective 
       Bargaining Agreement with AFSCME Council 93.

       Andrew Martin was expelled from AFSCME membership but that
       does not preclude him from paying Fair Share as a member 
       of the bargaining unit in accordance with Section 4.2.1 
       of the Collective Bargaining Agreement.

       I am requesting that the Fair Share Fee be deducted from 
       his paycheck each pay period.

       Thank you for your attention to this matter.

       Sincerely,



       Sylvia Hebert
       AFSCME Staff Representative


[end of page 4]


       shebert@afscmecouncil93.org
       207-620-3910 (office direct)
       207-212-9396 (cell)

       SH/lb

8.  Section 4.2.1 of the Collective Bargaining Agreement between 
    AFSCME and the City of Portland states:

     4.2 Fair Share Fees
        4.2.1 For employees hired into a permanent position on 
        or after March 1, 1985, it shall be a condition of 
        employment that said employees either (1) join the 
        Union, or (2) agree to pay their fair share toward 
        the Union's cost of collective bargaining, 
        contract administration, and the adjustment of 
        grievances through payroll deductions as outlined 
        in this Article.  The Union shall establish said 
        fair share annually not to exceed 80% of full 
        Union dues and shall notify the City promptly as 
        to the percentage and dollar amount of said fair 
        share.  Said employees shall have 10 days after 
        completion of their probationary period within 
        which to join the Union or agree to pay the fair 
        share amount.

        4.2.2 The Union agrees to establish a bona fide internal 
        Union procedure to allow non-member employees in 
        the unit to challenge the level of the fair share 
        deduction established hereunder. In the event of 
        any challenge to the fair share provision, the 
        City shall not be required to discharge any 
        employee(s) for failure to comply with this 
        provision until after the employee(s) have 
        exhausted their internal Union remedies and so 
        long as there is any litigation pending. After 
        such exhaustion and in the absence of any pending 
        litigation, the City shall provide any employee 
        who has not elected to join the Union or to pay 
        their fair share with written notice that the 
        employee has 30 days to make such election or be 


[end of page 5]


        discharged from service.  Any discharge under this 
        provision is reviewable only in Court and is not 
        grievable or arbitrable. The Union agrees to 
        comply with the procedures established by the U.S. 
        Supreme Court's decision of Chicago Teachers Union 
        Local No. 1, AFT, AFL-CIO, et al. v. Annie Lee 
        Hudson et al. decided March 4, 1986 for handling 
        of fair share fee claims.

        4.2.3 Upon receipt of a written authorization card from 
        the employee, the City shall deduct either the 
        full Union dues or the fair share fee as 
        indicated.  The City has no obligation to pay the 
        Union any dues or fee payment for an employee if 
        the employee has not signed said authorization 
        card.

9.  On March 26, 2014, Mr. Martin emailed AFSCME Council 93 
    asking that he be made a full member of AFSCME Local 1373 
    again.  His request was denied.


                          DISCUSSION
 
     Section 964(2)(A) of the Act prohibits pubic employees, 
public employee organizations and their members and agents from 
"interfering with, restraining or coercing employees in the 
exercise of the rights guaranteed in section 963."  Section 963, 
in turn, provides a broad protection of the right of public 
employees to join and participate in union activities or to 
refrain from doing so.  Section 963 states:

      963. RIGHT OF PUBLIC EMPLOYEES TO JOIN OR REFRAIN 
     FROM JOINING LABOR ORGANIZATIONS

        A person may not directly or indirectly interfere 
     with, intimidate, restrain, coerce or discriminate 
     against a public employee or a group of public 


[end of page 6]


     employees in the free exercise of their rights, given 
     by this section, to voluntarily:

	1.  Join a union. Join, form and participate in 
     the activities of organizations of their own choosing 
     for the purposes of representation and collective 
     bargaining or in the free exercise of any other right 
     under this chapter; or

	2.  Not join a union. Refrain from joining or 
     participating in the activities of organizations for 
     the purposes of representation and collective 
     bargaining, except that an employee may be required to 
     pay to the organization that is the bargaining agent 
     for the employee a service fee that represents the 
     employee's pro rata share of those expenditures that 
     are germane to the organization's representational 
     activities.

     Public Law 2007, chapter 415, entitled "An Act to Protect 
Fair Share Workers from Termination", made several changes to 
various sections of Title 26 that are relevant to the issue at 
hand.  Section 963 was repealed and replaced[fn]1 with the provision 
quoted above having two distinct subsections reflecting the 
long-standing principle that  963 protects both the right to 
join a union and the right to refrain from joining a union.  
See, e.g., Churchill v. SAD #49 Teachers Association, 380 A.2d 186, 192 (1977). 
 
     Public Law 2007, chapter 415 also added the last clause of 
 963, sub-  2 that "an employee may be required to pay [to the 


1 Until this change,   963, as enacted in 1969, stated: 
 
    963 Right of public employees to join labor organizations
    No one shall directly or indirectly interfere with, intimidate, restrain, 
   coerce or discriminate against public employees or a group of public 
   employees in the free exercise of their rights, hereby given, voluntarily 
   to join, form and participate in the activities of organizations of their 
   own choosing for purposes of representation and collective bargaining, or 
   in the free exercise of any other right under this chapter.

 
[end of page 7]


union] a service fee that represents the employee's pro rata 
share of those expenditures that are germane to the organiza-
tion's representational activities." P.L. 2007, c. 415,  2.[fn]2  
This new clause does not by itself require the payment of a 
service fee, but simply codifies the existing case law that 
allowed parties to negotiate mandatory payment of service fees.  
See, e.g., Council 74, AFSCME v. City of Bangor, No. 80-50 at 5 
(Sept. 22, 1980).
 
     Public Law 2007, chapter 415 also enacted two other 
provisions that are important in this case.  The first is the 
enactment of  964(1)(H), prohibiting an employer from 
"terminating or disciplining an employee for not paying union 
dues or fees of any type."[fn]3  The second is the enactment of a new 
provision in Chapter 7 of Title 26 addressing Employment 
Practices.  Section 629,[fn]4 entitled "Unfair Agreements," limits 
the employer's ability to withhold funds from an employee's 
paycheck without the authorization of the employee, except in 
the specific instances identified.  Public Law 2007, chapter 415 
amended section 629 to add the following subsection:
 
     4.  Deduction of service fees.  Public employers may 
     deduct service fees owed by an employee to a 
     collective bargaining agent from the employee's pay, 
     without signed authorization from the employee, and 
     remit those fees to the bargaining agent, as long as:

          A. The fee obligation arises from a lawfully 
          executed and implemented collective bargaining 
          agreement; and  



2 P.L. 2007, ch. 415,   6, 10, and 15 made the same change to the State 
Employees Labor Relations Act, the University of Maine System Act, and the 
Judicial Employees Labor Relations Act.

3 Identical provisions were added to the various collective bargaining acts 
covering other public sector employers and employees.

4 In Title 26, Chapter 7, sub-chapter 2, "Wages and Medium of Payment."


[end of page 8]

  
          B. In the event a fee payor owes any arrears on 
          the payor's fee obligations, the deduction 
          authorized under this subsection may include an 
          installment on a payment plan to reimburse all 
          arrears, but may not exceed in each pay period 
          10% of the gross pay owed. 


     Again, like the change to  963, the enactment of  629(4) 
does not require agency fees or require payroll deduction of 
agency fees; it simply sets the conditions under which an 
employer lawfully can deduct agency fees from an employee's 
paycheck without that employee's written authorization.
 
     Turning to the case at hand, the Complainant alleges a 
 964(2)(A) violation.[fn]5  Thus, the question is whether the conduct 
of the Union can reasonably be viewed as interference, restraint 
or coercion with respect to his rights under  963.  Mr. Martin 
argues that he would like to join AFSCME, but is precluded from 
doing so because of his expulsion in 2010.  He argues that by 
not allowing him to join the union and by causing the employer 
to deduct fair share fees from his paycheck without his consent, 
the Union has interfered with the rights guaranteed by  963, 
thereby violating  964(2)(A).
 
     Section 963, subsection 2 explicitly refers to the 
possibility that an employee may be required to pay a service 
fee.  Subsection 2 establishes an employee's right to refrain 
from joining a union, "except that an employee may be required 
to pay to the [bargaining agent] a service fee that represents 
the employee's pro rata share of those expenditures that are 


5  The Complainant also alleges a violation of the collective bargaining 
agreement.  That charge must be dismissed, as the Board has no jurisdiction 
to hear grievances.  State of Maine v. MSEA, 499 A.2d 1228, 1239 (Oct. 29, 
1985).


[end of page 9]


germane to the organization's representational activities.?" The 
source of any such service fee requirement is the collective 
bargaining agreement that the bargaining agent negotiates with 
the employer.  Given the individual interests involved, we
conclude that the bargaining agent has an obligation to comply 
with the essential terms of the agreement giving rise to the 
requirement to pay the service fee permitted under  963(2).  A 
failure to do so could constitute a violation of  964(2)(A).

     Here, as Mr. Martin argues, the terms of the collective 
bargaining agreement present the employee with the option of 
either joining the union or agreeing to pay the fair share fee.  
Article 4.2.1 of the agreement states that employees must "either 
(1) join the union, or (2) agree to pay their fair share toward 
the Union's cost of collective bargaining, contract 
administration, and the adjustment of grievances through payroll 
deductions as outlined in this Article."[fn]6  The same article 
states that new employees have 10 days after completion of their 
probationary period "to join the Union or to agree to pay the 
fair share amount."  Mr. Martin has not agreed to pay the fair 
share fee, but he would like to join the Union.  The option of 
joining has been denied to him, however, insofar as the Union has 
declined to readmit him.  Thus, Mr. Martin does not have the 
choice contemplated by the collective bargaining agreement.  By 
insisting that Mr. Martin pay the fair share fee when he has not 
agreed to do so and is willing to join the Union, the Union 
failed to comply with an essential term of the agreement.  This 
failure on the Union's part constitutes a violation of  964(2)(A) 


6  The agreement purports to make the payment of dues or the fair share fee a 
condition of continued employment.  At the pre-hearing conference, the 
Union's staff representative indicated that they knew the provision was 
inconsistent with current law, and they were in the process of negotiating 
substantial changes in the successor agreement.


[end of page 10]


as it interfered with the rights guaranteed to Mr. Martin in 
 963.

     Furthermore, even if the imposition of the service fee in
 this instance was not a violation of the contract, it has failed 
to comply with Constitutional and statutory procedural 
requirements. There is significance to the wording of  963 
referring to a service fee "that represents the employee's pro 
rata share of those expenditures that are germane to the 
organization's representational activities."  A charge that the 
Union interfered, restrained or coerced Mr. Martin in the 
exercise of rights guaranteed by  963 in violation of  964(2)(A) 
must therefore encompass the right to ensure that the service 
fee does not exceed the statutory limitation. 

     This language in  963 limiting the fee amount "to those 
expenditures that are germane to the organization's represent-
ational activities" was clearly intended to incorporate the 
First Amendment limitations on agency fees as defined by the 
United States Supreme Court.  In 1986, the U.S. Supreme Court 
issued Chicago Teachers Union v. Hudson, in which it affirmed 
the holding of Abood that a public sector union may not require 
nonmembers to pay for costs "not germane to its duties as 
collective-bargaining agent."  475 U.S. 292, 294, quoting Abood 
v. Detroit Board of Education, 431 U.S. 209 (1977).  The Supreme 
Court further identified the minimum procedural safeguards a 
public sector union must employ to protect nonmembers' First 
Amendment rights.  The Hudson Court held that, 
 
     [T]he constitutional requirements for the Union's 
     collection of agency fees include an adequate 
     explanation of the basis for the fee, a reasonably 
     prompt opportunity to challenge the amount of the fee 


[end of page 11]



     before an impartial decisionmaker, and an escrow for 
     the amounts reasonably in dispute while such 
     challenges are pending.

Chicago Teachers Union v. Hudson, 475 U.S. 292, 310 (1986).  We 
recognize that the U.S. Supreme Court's most recent discussion 
of agency fees in Harris v. Quinn called into question the 
constitutional foundation of agency fees in the public sector. 
573 U.S.___, 134 S. Ct. 2618 (2014).  The Supreme Court has not 
overruled Hudson, however, so Hudson continues to be the law we 
must apply. 
 
     After nearly four years without having any dues or fair 
share fees deducted from Mr. Martin's paycheck, the Union caused 
the agency fee amount to be deducted by the employer without 
providing Mr. Martin advance notice, much less an "adequate 
explanation of the basis of the fee" or a reasonably prompt 
opportunity to challenge the amount of the fee before an 
impartial decision maker.  Even if the Union's existing 
procedures might have provided sufficient notice to probationary 
employees about to be subject to the agency fee requirement, 
that procedure would not be sufficient for Mr. Martin, as he 
would have had no reason to think that the Union would change 
its position on requiring fees from him.
 
     We conclude, therefore, that the Union violated  964(2)(A) 
by failing to comply with the collective bargaining agreement's 
requirements for collecting a service fee and by causing a 
regular deduction from Mr. Martin's paycheck for fair share fees 
without giving him the procedural protections required by 
Hudson.


[end of page 12]


                              ORDER

     On the basis of the foregoing facts and discussion, and by 
virtue of and pursuant to the powers granted to the Maine Labor 
Relations Board by the provisions of 26 M.R.S.A.  968(5), it is 
hereby ORDERED: 
 
     That AFSCME Council 93 and its representatives and agents
shall:

     1. Notify the City of Portland that the agency fee or 
        "fair share" deductions from Mr. Martin's paycheck must 
        be stopped until the such deductions can be implemented 
        consistent with the terms of the collective bargaining 
        agreement and Mr. Martin has been provided with the 
        procedural protections specified in Chicago Teachers 
        Union v. Hudson, and
 
     2. Reimburse Mr. Martin of the full amount of agency fees 
        deducted from his paycheck from April 2014 until the 
        present, plus interest of 3.13%.[fn]7
 
 
Dated at Augusta, Maine, this 20th day of March, 2015.                               	                                      
				    				 	 		

The parties are advised of their right pursuant to 26 M.R.S.A. §968(5)(F) to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision.

MAINE LABOR RELATIONS BOARD

[signed]
Katharine I. Rand
Chair

[signed]
Robert W. Bower, Jr.
Employer Representative

[signed]
Amie M. Parker
Employee Representative

7 This is the pre-judgment interest rate used in Maine's state courts for claims filed in 2014. See www.courts.maine.gov/attorneys/writ-pre.html .

[end of page 13]