DOUGLAS F.

GANSLER
ATTORNEY GENERAL
KATHERlNE WINFREE
Chief Deputy Attorney General
JOHN B. HOWARD, JR.
Depury Attorney General
THE ATTORNEY GENERAL OF MARYLAND
OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY
The Honorable Glen Glass
Maryland House of Delegates
307 Fords Lane
Aberdeen, Maryland 21001
April 26, 2013
DAN FRIEDMAN
Counsel to the General Assembly
SANDRA BENSON BRANTLEY
BONNIE A. KIRKLAND
KATHRYN M. ROWE
Assistant Attorneys General
Re: HB 667 - Public School Employees - Collective Bargaining -
Representation Fees
Dear Delegate Glass:
You have asked for an explanation of how BB 667 will work. It is important to
understand that this bill is just the latest in a series of "fair share" laws, in this and other
states, that allow public employee unions to collect service fees from non-union public
employees.! . The purpose behind allowing unions to collect fees from non-members is to
offset costs attributable to the collective bargaining process to which non-members
benefit. 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 the
service fee. Once they agree, the bill then requires that both members and "nonmembers
affected by serviCe or representation fee" be eligible to vote on the ratification of the
service fee agreed upon. If the parties fail to agree, current Maryland law provides that
the parties enter into mediation. Md. Educ. ("ED") Ann. Code 6-408(e)(1)(ii). If
mediation fails, the parties are required to enter into arbitration before the Public School
Labor Relations Board. ED 6-408(e)(8). The Public School Labor Relations Board's
decision 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 (currently
codified as Md. State Pers. & Pens. Ann. Code 3-502), which allows state employee unions to
negotiate a service fee for non-union state employees.
104 LEGISLATIVE SERVICES BUILDING' 90 STATE CIRCLE ANNAPOLlS, MARYLAND 21401-1991
410-946-5600 . 301-970-5600 . Fax 410-946-5601 . TTY 410-946-5401 . 301-970-5401
The Bonorable Glen Glass
April 26, 2013
Page 2
You 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 that
both the local school board and the unions must negotiate in good faith and conclude
their negotiations quickly. ED 6-408(a). Because BB 667 assumes that there is a value
of the union's services to non-member employees and because negotiating a $0.00 fee
would be so clearly adverse to the unions' interests it is highly unlikely that such a result
would be the outcome of a good faith negotiation. Additionally, the mediation and
arbitration provisions currently in place wi11likely prevent a $0.00 fee.
I hope that this answers all of your questions. At your request, I have also
attached a series ofletters that we wrote regarding the 2009 Fair Share Act.
Dan Friedman
Counsel to the General Assembly
DOUGLAS F. GANSLER
AnORNEY GBNERAL
KATHElUNE WINFREE
Chief Deputy Attorney General
JOHN B. HOWARD, In.
Deputy Attorney General
THE ATTORNEY GENERAL OF MARYLAND
OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY
The Honorable Gail H. Bates
, 202 Lowe House Office Building
Annapolis, Maryland 21401-1991
Dear Delegate Bates:
April 7, 2009
DAN FRIEDMAN
Counsel to the General Assembly
SANDRA BENS ON BRANTLEY
BONN1E A. KIRICLAND
KATHR'YN M. ROWE
Assistant Attorneys General
You have asked for advice ,concerning 'Senate Bill 264, "State Employees - Collective
Bargaining -Negotiations - 'The Fair Share Act:'" Specifically, you have asked whether the religious
in the bill would violate the Establishment Clause of the United States Constitution. It
is my view that the provision raises serious constitutional issues. It possible, however, that the
issue ,could be resolved in negotiation of the service fees.
Senate Bill 264 permits negotiations regarding the right of an employee organization. to
receive service fees from nonmembers as part of collective bargaining for State employees. The bill
further provides that ,an: '
employee who is a member of a bona fide religion that historically has held
conscientious objections to joining or finatl.cially supporting an employee
organization may not be required to pay a serviCe fee to an employee organization
under [the bill].
Page 2, lines 7-11. An elnployeewho qualifies for this exemption may be required to pay an amount
equal to the service fee to a nonreligious, nonlabor charitable organization exempt from taxation
under 501(c)(3) of the Internal Revenue Code. Page 2, lines 12-16. While the above language
requires that certain employees be exempt from the service fee based on their religious beliefs, it
does not expressly require that all ,others pay, but instead leaves the amounts to be paid and the
employees 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 a member of and adheres to established and traditional tenets
or teachings' of a bona fide religion, body, or sect which has historically held
, conscientious obj ections to joining or financially supporting labor organizations shall
nodJe'reqUired to j6il1 01:' financially 8uPP-brt 'any lab"br organization -as a condition of
1041EGlSLATIVE SERVICBS BUILDING' 90 STATE CIRCLE' ANNAPOUS, MARYLAND-21401-1991
410-946-5600 301-970-5600 Fax 410-946-5601 TTY 410-946-5401 . 301-970-5401
The Honorable Gail H. Bates
April 7, 2009
Page 2
employment; except that such employee may be required in a contract between such
employees! employer and a labor organization in lieu of periodic dues and initiation
fees, to pay sums equal to such dues and initiation fees to a nonreligious, nonlabor
organization charitable fund
The 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 union
membership only those employees who are members of "bona fide" religious organizations having
the beliefs described in the statute. Such a law "must 'be invalidated unless it is justified by a
compelling governmental interest." Larson 456 U.S. at 247. Moreover, the law must be "closely
fitted" to further the compelling governmental interest. Id. The Wilson court found that 19 of the
N.L.R.A. could not withstand strict scrutiny. Specifically, it held:
The Board offers an explanation for the distinction, but it does not identify
a compelling interest furthered by the, statute. In the absence of any
identifiable governmental interest served by the statute, we must declare it
unconstitutional. Moreover, even were we to find that the statute served a compelling
governmental interest of protecting religious freedom in the workplace, the statute
would still fail strict scrutiny. While protection of religious freedom in the workplace
may be a governmental interest, section 19 could be more closely fitted
to further this interest by paralleling the protection afforded by Title VU, which is
without 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 scrutiny
under the lesser scrutiny applicable to nondiscriminatory statutes under Lemon v. Kurtzman, 403
U.S. 602 (1971). See also Comment, The [UnJconstitutionality of the NLRA's Religious
Accommodation Provision, 44 Gonzaga Law Review 325 (2008-2009).
More recent cases have reached the same conclusion when faced with similar language. In
Katter v. Ohio Employment Relations Bd., 492 F.Supp.2d 851 (S.D.Ohio 2007), the Court
considered 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 against
discrimination by unions as well as employers, and points out that cases had found the alternative
of charitable contributions in lieu of union fees to be a reasonable accommodation of the statute.
Because the protections of Title VII reached "all aspects of religious observance and practice, as well
, as belief, "that 'law requires accOlmnodations for those'whose religious beliefs were not connected'
with an established religion.
The Honorable. Gail H. Bates :
April 7,2009
Page 3
exemption much like the one. discussed in Wilson.
2
TheCourt conel uded that Ohio law, like.the-law
considered in Wilson, discriminated between religions and was subject to strict scrutiny"
It distinguishes between two employees who have the same religious beliefs and
attend the same church, when one has actually become a formal member of the
church. The statute further differentiates between two employees who have the same
religious beliefs, are members of churches with formal doctrines against supporting
labor unions, but one of the churches has recently embraced a doctrine, while the
other church has historically embraced it. It then creates a denominational preference
by providing special treatment to members of the religious organizations described
in the statute. Specifically, the statute requires employers to provide a substituted
charity accommodation to members of religions having the beliefs described in the
statute.
Katter, 492 P,Supp.2d at 862.
Applying strict scrutiny, the Court found that even if the statute were found to serv.e the
compelling government interest of protecting religious freedom in the workplace, it would fail strict
scrutiny because it "could be more closely tailored to further that interest by providing protection to
all 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 provisions
found.invalid in these statutes, Therefore, it is my view that, if the exemption in Senate Bi1l264 is
applied as written it would most likely also be found to be unconstitutional. However,.it is my view
that the bill permits negotiation of a broader exemption that would include those with sincere
religious beliefs against membership in or support'of a union that are not based on the creed of an
established religion, As a result, it can be implemented in a manner that meets constitutional
requirements if care is taken in the negotiations.
Sincerely,
.. 0$1
1
/k.tn M. Rowe
Assistant Attorney General
2 The Ohio statute created an exemption for a "public employee who is a member of and
adheres to established and traditional tenets or teachings of a bona fide religion or religious body
which has historically held conscientrous objections "to j oining'orfinancially supporting an'employee
organization .... "
DOUGLAS E GANSLER
ATTORNEY GENERAL
KATHERlNE WINFREE
Chief Deputy Attorney General
JOHN B. HOWARD, JIt.
Deputy Attorney General
THE ATTORNEY GENERAL OF MARYLAND
OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY
Mr. J oseph C. Bryce
Chief Legislative Officer
State House
Annapolis, Maryland
Dear Mr. Bryce:
April 8, 2009
DAN FRIEDMAN
Counsel to the General Assembly
SANDRA BENSON BRANTLEY
BONNIE A. KIIU<LAND
I<ATHRYN M. ROWE
Assistant Attorneys General
. You have asked for advice concerning Senate Bill 264, "State Employees - Collective
Bargaining -Negotiations-'The Fair Share Act. '" Specifically, you have asked whetherreplacingthe
current religious exemption with language like that now used with respect to collective bargaining
in the educational context would resolve constitutional issues that have been raised with the existing
language. It is my view that it would.
Senate Bill 264 permits negotiations regarding the right of an employee organization to
receive service fees from nonmembers as part of collective bargaining for State employees. The bill
further provides that an:
employee who is a member of a bona fide religion that historically has held
conscientious objections to joining or financially supporting an employee
organization may not be required to pay a service fee to an employee organization
under [the bill].
Page 2, lines 7-11. An employe'e who qualifies for this exemption may be required to pay an amount
equal to the service fee to a nonreligious, nonlabor charitable organization exempt from taxation
under 501(c)(3) of the Internal Revenue Code. Page 2, lines 12-16.
Education Article 6-407 (c )(1) provides that, in certain counties, a service or representation
fee may be imposed onnomnembers of the exclusive bargaining representative forrepresentin.g them
in negotiations, contract administration, including grievances, and other activities required by law.
The law further provides that:
An employee whose religious beliefs are opposed to joining or financing any
collective bargaining organization is:
.. - ....... -. -'-"- "---" .... -.. __ .. _-_. -_.-... -:- - - _ .. - .. - ....... -
104 LEGISLATIVE SERVICES BUILDING. 90 STATE CIRCLE. ANNAI'OLIS, ivIARYLANJ) 'i14()I-1991.-'
410-946-5600 301-970-5600 . Fax 410-946-5601 TTY 410-946-540I 301-970-5401 .
I
i
T
;---- .. __ ... __ ._- .. _ .. _--- _.- .- .. _-- ..... _ ... _--_ .... _ .. - .... _ .. _._ ... _--------..,.------.--,-----------
Mr. Joseph C. Bryce
April 8,2009
Page 2
this subsection to a nomeligious, nommion charity or to such other charitable
organization as may be mutually agreed upon by the employee and the exclusive
representative, and who fumishes to the public school employer and the exclusive
representative written proof of such payment.
Education Article 6A07(c)(4).
In my earlier letter to the Honorable Gail H. Bates I advised that the exemption language of
Senate Bil1264 was constitutionally problematic because it discriminated between persons with
similar religious objections based on their membership in religions with certain types of beliefs, and
offered 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., 920
F.2d 1282 (6
th
Cir. 1990); Katter v. Ohio Employment Relations Bd., 492 F.Supp.2d 851 (S.D.Ohio
2007). In contrast to the language in the bill, the exemption in the Education Article applies evenly
to all persons who have a sincere religious objection to joining or financing a collective bargaining
organization. There is no discrimination. As a result, it is my view that this provision is
constitutional and would resolve the issue raised by the current language of Senate Bill 264.
KMR/lcmr
bryce01.wpd

a
{jl
'" .,., /? J/J;
I .. Rowe
ASSIstant Attorney General
!
--- ---- ------ -- -- ---- ------ --- -- -- -- ------- --- -- ---------- ------l