Hohe v. Casey, Civ. A. No. 88-1348.

• Citation: 704 F. Supp. 581
• Decision Date: 30 August 1988
• Docket Number: Civ. A. No. 88-1348.
• Parties: Mary A. HOHE, et al., Plaintiffs, v. Robert P. CASEY, Governor, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

704 F. Supp. 581

Mary A. HOHE, et al., Plaintiffs, v. Robert P. CASEY, Governor, et al., Defendants.

Civ. A. No. 88-1348.

United States District Court, M.D. Pennsylvania.

August 30, 1988.

Milton L. Chappell, Raymond J. LaJeunesse, Jr., Glenn M. Taubman, National Right to Work Legal Defense Foundation, Inc., Springfield, Va., and Thomas A. Beckley, John G. Milakovic, Charles O. Beckley, II, Beckley & Madden, Harrisburg, Pa., for plaintiffs.

Thomas York, and Joseph S. Sabadish, Deputy Attys. Gen., Office of the Attorney General, Harrisburg, Pa., for Casey, Zazyczny, Greene & Com. of Pennsylvania.

Elaine Williams, Kirschner, Walters & Willig, Philadelphia, Pa., and John J. Sullivan, Richard Kirschner, Larry P. Weinberg, Kirschner, Weinberg & Dempsey, Washington, D.C., for Council 13, American Federation of State, County & Municipal Employees.

ORDER

CALDWELL, District Judge.

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On July 13, 1988, the Governor of Pennsylvania signed Act No. 84 of 1988 thereby amending Pennsylvania's Administrative Code of 1929, 71 P.S. §§ 51-732. Act 84 authorizes labor unions to bargain for and collect a "fair share fee" from non-union Commonwealth employees in order to offset the cost of collective bargaining on behalf of the non-union employees. On July 28, 1988, the defendants amended their collective bargaining agreement to provide for the payment of such a fee. Beginning on or about August 4, 1988, they sent to the plaintiffs certain notices and financial disclosure materials as a prelude to the fee collection which commenced on August 16, 1988.

On August 26, 1988, the plaintiffs brought this lawsuit in which they seek injunctive and declaratory relief for themselves and others similarly situated. They are challenging the constitutionality of Act 84, both on its face and as applied by the defendants, under the first and fourteenth amendments. Now before the court is the plaintiffs' motion for a temporary restraining order or a preliminary injunction. They allege several constitutional flaws in the defendants' collection plan, notice and financial disclosure which they claim cause irreparable injury and require immediate restraint.

It is clear that although agency shop or fair share fee programs impinge upon first amendment rights, with proper procedural safeguards, they are constitutional. See Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986); Ellis v. Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984); Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Such programs must minimize the risk that non-union employees' contributions might be used, even temporarily, for impermissible purposes. The constitutional requirements for a union's collection of agency fees include "an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the fee before an impartial decisionmaker, and an escrow for the...