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DOUGLAS F. GANSLERATTORNEY GENERAL

KATHERlNE WINFREEChief Deputy Attorney General

JOHN B. HOWARD, JR.Depury Attorney General

THE ATTORNEY GENERAL OF MARYLANDOFFICE OF COUNSEL TO TH E GENERAL ASSEMBLY

The Honorable Glen GlassMaryland House of Delegates307 Fords LaneAberdeen, Maryland 21001

April 26, 2013

DA N FRIEDMANCounsel to the General Assembly

SANDRA BENSON BRANTLEYBONNIE A. KIRKLAND

KATHRYN M. ROWEAssistant Attorneys General

Re: HB 667 - Public School Employees - Collective Bargaining -Representation FeesDear Delegate Glass:

You have asked for an explanation of how BB 667 will work. It is important tounderstand that this bill is just the latest in a series of "fair share" laws, in this and otherstates, that allow public employee unions to collect service fees from non-union publicemployees.! . The purpose behind allowing unions to collect fees from non-members is tooffset costs attributable to the collective bargaining process to which non-membersbenefit. See Davenport v. Washington Education Association, 551 D.S. 177 (2007).

The bill requires teachers unions to negotiate with the local school board to set theservice fee. Once they agree, the bill then requires that both members and "nonmembersaffected by serviCe or representation fee" be eligible to vote on the ratification of theservice fee agreed upon. If the parties fail to agree, current Maryland law provides thatthe parties enter into mediation. Md. Educ. ("ED") Ann. Code 6-408(e)(1)(ii). I fmediation fails, the parties are required to enter into arbitration before the Public SchoolLabor Relations Board. ED 6-408(e)(8). The Public School Labor Relations Board'sdecision is final and binding on all parties. ED 6-408( e )(12).

1 In 2009, the General Assembly passed and the Governor approved SB 264 (currentlycodified as Md. State Pers. & Pens. Ann. Code 3-502), which allows state employee unions tonegotiate a service fee for non-union state employees.

10 4 LEGISLATIVE SERVICES BUILDING' 90 STATE CIRCLE ANNAPOLlS, MARYLAND 21401-1991410-946-5600 . 301-970-5600 . Fax 410-946-5601 . TTY 410-946-5401 . 301-970-5401

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The Bonorable Glen GlassApril 26, 2013Page 2You have also asked whether the negotiations could result in a $0.00 non-member

service fee. This outcome is not likely under BB 667' s framework. The law is clear thatboth the local school board and the unions must negotiate in good faith and concludetheir negotiations quickly. ED 6-408(a). Because BB 667 assumes that there is a valueof the union's services to non-member employees and because negotiating a $0.00 feewould be so clearly adverse to the unions' interests it is highly unlikely that such a resultwould be the outcome of a good faith negotiation. Additionally, the mediation andarbitration provisions currently in place wi11likely prevent a $0.00 fee.

I hope that this answers all of your questions. At your request, I have alsoattached a series ofletters that we wrote regarding the 2009 Fair Share Act.

Dan FriedmanCounsel to the General Assembly

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DOUGLAS F. GANSLERAnORNEY GBNERAL

KATHElUNEWINFREEChief Deputy Attorney General

JOHN B. HOWARD, In.Deputy Attorney GeneralTHE ATTORNEY GENERAL OF MARYLAND

OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

The Honorable Gail H. Bates,202 Lowe House Office BuildingAnnapolis, Maryland 21401-1991Dear Delegate Bates:

April 7, 2009

DAN FRIEDMANCounsel to the General Assembly

SANDRA BENSON BRANTLEYBONN1E A. KIRICLANDKATHR'YN M. ROWEAssistant Attorneys General

You have asked for advice ,concerning 'Senate Bill 264, "State Employees - CollectiveBargaining -Negotiations - 'TheFair Share Act:'" Specifically, you have asked whether the religiouse x e m p t i o ~ in the bill would violate the Establishment Clause of the United States Constitution. Itis my view that the provision raises serious constitutional issues. It possible, however, that theissue ,could be resolved in negotiation of the service fees.

Senate Bill 264 permits negotiations regarding the right of an employee organization. toreceive service fees from nonmembers as part of collective bargaining for State employees. The billfurther provides that ,an: 'employee who is a member of a bona fide religion that historically has heldconscientious objections to joining or finatl.cially supporting an employeeorganization may not be required to pay a serviCe fee to an employee organizationunder [the bill].

Page 2, lines 7-11. An elnployeewho qualifies for this exemption may be required to pay an amountequal to the service fee to a nonreligious, nonlabor charitable organization exempt from taxationunder 501(c)(3) of the Internal Revenue Code. Page 2, lines 12-16. While the above languagerequires that certain employees be exempt from the service fee based on their religious beliefs, itdoes not expressly require that all ,others pay, but instead leaves the amounts to be paid and theemployees who are to pay to be negotiated.In Wilson v. N.L.R.B" 920 'F.2d 1282 (6 th Cir. 1990), the Court considered the validity of 19 ,of the National Labol' Relations Act, 29 D.S.C. 169 which provides:Any employee who is amember of and adheres to established and traditional tenetsor teachings' of a bona fide religion, body, or sect which has historically held, conscientious objections to joiningor financially supporting labor organizations shallnodJe'reqUired to j6il1 01:' financially 8uPP-brt 'any lab"br organization -as a condition of

1041EGlSLATIVE SERVICBS BUILDING' 90 STATE CIRCLE' ANNAPOUS,MARYLAND-21401-1991410-946-5600 301-970-5600 Fax 410-946-5601 TTY 410-946-5401 . 301-970-5401

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The Honorable Gail H. BatesApril 7, 2009Page 2employment; except that such employee may be required in a contract between suchemployees! employer and a labor organization in lieu ofperiodic dues and initiationfees, to pay sums equal to such dues and initiation fees to a nonreligious, nonlabororganization charitable fundThe Court concluded that the statute was subject to strict scrutiny under Larson v. Valente,456 U.S. 228 (1982) because it facially discriminated between religions by exempting from unionmembership only those employees who are members of "bona fide" religious organizations havingthe beliefs described in the statute. Such a law "must 'be invalidated unless it is justified by acompelling governmental interest." Larson 456 U.S. at 247. Moreover, the law must be "closelyfitted" to further the compelling governmental interest. Id. The Wilson court found that 19 of he

N.L.R.A. could not withstand strict scrutiny. Specifically, it held:The Board offers an explanation for the distinction, but it does not identifya compelling g o v e r n m e n ~ a l interest furthered by the, statute. In the absence of anyidentifiable governmental interest served by the statute, we must declare itunconstitutional. Moreover, even were we to find that the statute served a compellinggovernmental interest of protecting religious freedom in the workplace, the statutewould still fail strict scrutiny. While protection ofreligious freedom in the workplacemay be a o m p e l ~ i n g governmental interest, section 19 could be more closely fittedto further this interest by paralleling the protection afforded by Title VU, which iswithout regard to membership in a particular religious organization.

Wilson, 920 F.3d at 1287.1 The Court went on to hold that the law would not withstand scrutinyunder the lesser scrutiny applicable to nondiscriminatory statutes under Lemon v. Kurtzman, 403U.S. 602 (1971). See also Comment, The [UnJconstitutionality of the NLRA's ReligiousAccommodation Provision, 44 Gonzaga Law Review 325 (2008-2009).More recent cases have reached the same conclusion when faced with similar language. InKatter v. Ohio Employment Relations Bd., 492 F.Supp.2d 851 (S.D.Ohio 2007), the Courtconsidered a challenge by a teacher who was subject to a fair share provision which had an

I The Wilson Court discussion of Title VII reflects that it protects employees againstdiscrimination by unions as well as employers, and points out that cases had found the alternativeof charitable contributions in lieu of union fees to be a reasonable accommodation of the statute.Because the protections ofTitle VII reached "all aspects ofreligious observance and practice, as well, as belief,"that law requires accOlmnodations for those'whose religious beliefs were not connected'with an established religion.

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The Honorable. Gail H. Bates :April 7,2009Page 3exemption much like the one. discussed in Wilson.2 TheCourt conel uded that Ohio law, like.the-lawconsidered in Wilson, discriminated between religions and was subject to strict scrutiny"

It distinguishes between two employees who have the same religious beliefs andattend the same church, when one has actually become a formal member of thechurch. The statute further differentiates between two employees who have the samereligious beliefs, are members of churches with formal doctrines against supportinglabor unions, but one of the churches has recently embraced a doctrine, while theother church has historically embraced it. It then creates a denominational preferenceby providing special treatment to members of the religious organizations describedin the statute. Specifically, the statute requires employers to provide a substitutedcharity accommodation to members of religions having the beliefs described in thestatute.

Katter, 492 P,Supp.2d at 862.Applying strict scrutiny, the Court found that even if the statute were found to serv.e thecompelling government interest of protecting religious freedom in the workplace, it would fail strictscrutiny because it "could be more closely tailored to further that interest by providing protection toall employees who hold bona fide religious beliefs without regard to membership in a particular

religio,us organization." Id.The express exemption in Senate Bil1264 is virtually indistinguishable from the provisionsfound.invalid in these statutes, Therefore, it is my view that, if he exemption in Senate Bi1l264 isapplied as written it would most likely also be found to be unconstitutional. However,.it is my viewthat the bill permits negotiation of a broader exemption that would include those with sincerereligious beliefs against membership in or support'of a union that are not based on the creed of anestablished religion, As a result, it can be implemented in a manner that meets constitutionalrequirements if care is taken in the negotiations.

Sincerely,

..0$1 1/k.tn M. RoweAssistant Attorney General2 The Ohio statute created an exemption for a "public employee who is a member of andadheres to established and traditional tenets or teachings of a bona fide religion or religious bodywhich has historicallyheld conscientrous objections"to j oining'orfinancially supporting an'employeeorganization ..."

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DOUGLAS E GANSLERATTORNEY GENERAL

KATHERlNE WINFREEChief Deputy Attorney General

JOHN B. HOWARD, JIt.Deputy Attorney GeneralTHE ATTORNEY GENERAL OF MARYLANDOFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

Mr. Joseph C. BryceChief Legislative OfficerState HouseAnnapolis, Maryland 2 1 4 0 1 ~ 1 9 2 5Dear Mr. Bryce:

April 8, 2009

DAN FRIEDMANCounsel to the General Assembly

SANDRA BENSON BRANTLEYBONNIE A. KIIU

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;---- ..__ ..__ ._- .._. _--- _. - .- .._-- ....._.._--_ ..._. - ...._. _._ ..._--------. . , .------.--,---------

Mr. Joseph C. BryceApril 8,2009Page 2this subsection to a nomeligious, nommion charity or to such other charitableorganization as may be mutually agreed upon by the employee and the exclusiverepresentative, and who fumishes to the public school employer and the exclusiverepresentative written proof of such payment.

Education Article 6A07(c)(4).Inmy earlier letter to the Honorable Gail H. Bates I advised that the exemption language ofSenate Bil1264 was constitutionally problematic because it discriminated between persons withsimilar religious objections based on their membership in religions with certain types ofbeliefs, andoffered no protection for those whose beliefs were not based on the historic beliefs of a specific

religion. I noted that similar language had been held invalid elsewhere. See Wilson v. N.L.R.B., 920F.2d 1282 (6 th Cir. 1990); Katter v. Ohio Employment RelationsBd., 492 F.Supp.2d 851 (S.D.Ohio2007). In contrast to the language in the bill, the exemption in the Education Article applies evenlyto all persons who have a sincere religious objection to joining or financing a collective bargainingorganization. There is no discrimination. As a result, it is my view that this provision isconstitutional and would resolve the issue raised by the current language of Senate Bill 264.

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I a ~ . . RoweASSIstant Attorney General

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