We do not read the statute or regulations to require an employer to confirm that a union has taken proper procedural steps before the employer fulfils its statutory obligations. Further, imposing this requirement would place an unnecessary burden on the employer. Also, requiring an employer to do so presents the risk of impairing the collective bargaining relationship between the union and the employer. Hogan complains that it is a constitutional violation for an employer to threaten to suspend or to suspend an employee for failure to pay a service fee without first verifying that the union complied with all applicable procedural requirements. She contends that the statutes and regulations at issue are designed to protect the rights of employees under the First Amendment to the United States Constitution.
Hogan states that case law requires employers to minimize the infringement upon employees' rights.
She argues that the commission has made these provisions and rulings meaningless, sacrificing employees' constitutional rights, by refusing to require that employers confirm that unions follow procedural requirements. We disagree with Hogan's contention that the commission's decision allows employers to trample on the constitutional rights of nonunion employees. An employee who has received an unlawful service fee demand immediately may seek recourse against the union by filing a prohibited labor practice charge. 456 Code Mass. Regs. If an employee took this defensive step, a constitutional claim against the employer would not even arise because the employer may not take any punitive action against the employee for failure to pay the service fee while the charge is pending.