Hohe v. Casey

• Decision Date: 10 August 1989
• Docket Number: Civ. A. No. 88-1348.
• Citation: 740 F. Supp. 1092
• Parties: Mary A. HOHE, et al., Plaintiffs, v. Robert P. CASEY, Governor, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

740 F. Supp. 1092

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 10, 1989.

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

Joseph S. Sabadish, Thomas Brian York, Office of the Atty. Gen., Chief, Litigation Section, Harrisburg, Pa.

Elaine Williams, Kirschner, Walters & Willig, Philadelphia, Pa., John J. Sullivan, Richard Kirschner, Kirschner, Weinberg & Dempsey, Washington, D.C., for defendants.

Peter D. Walther, Regina C. Reardon, A. Taylor Williams, Bray, Walther & Reardon, Philadelphia, Pa., for Robert J. Bray.

MEMORANDUM

CALDWELL, District Judge.

Introduction

In this class action, the plaintiffs challenge the constitutionality of Section 2 of Pennsylvania Act No. 84 of 1988, which amended the Pennsylvania Administrative Code of 1929, 71 P.S. §§ 51 to 732-506 (Purdon 1962 and Supp.1989), the collective bargaining agreement executed pursuant thereto, and the procedure implemented by AFSCME Council 13 under the agreement. Now before the court and ripe for disposition are the plaintiffs' motion for partial summary judgment, the union's motion for summary judgment, and the Commonwealth defendants' motion for judgment on the pleadings. Because they contain many of the same issues, we will consider and discuss them together.

Background

Since July 13, 1988, Act 84 has authorized labor unions to bargain for and collect a "fair share fee" from certain non-union commonwealth employees. 71 P.S. § 575(b). The purpose of the fee is to offset the cost of collective bargaining on behalf of the nonmembers. The Act defines "fair share fee" as the regular membership dues required of members less the cost for the previous fiscal year of the union's non-collective-bargaining-related activities. 71 P.S. § 575(a). It requires as a precondition to fee collection that the union "establish and maintain a full and fair procedure, consistent with constitutional requirements, that provides nonmembers ... with sufficient information to judge the propriety of the fee and that responds to challenges by nonmembers to the amount of the fee." 71 P.S. § 575(d). The union must establish arbitration procedures to resolve the challenges, id., which arbitration is final and binding. 71 P.S. § 575(g). When a challenge is made, the union is required to place 50% of the fee into an interest-bearing escrow account until the challenge is resolved by the arbitrator. 71 P.S. § 575(i).

On July 28, 1988, AFSCME Council 13 and the Commonwealth amended their collective bargaining agreement to provide for the withholding of fair share fees from the earnings of non-union employees represented by Council 13 for collective bargaining purposes. Council 13 identified some 18,000 such workers from Commonwealth payroll records and determined the amount of their fees to be 88.55% of its members' regular dues or 1.33% of their base salaries. The union then informed the Commonwealth of the names and amounts to be withheld.

Between August 8 and 12, 1988, Council 13 sent to the potential fee payers a notice explaining how the fair share fee was calculated. The notice lists the union's expenses, broken down by major expense category, for the fiscal year that ended on June 30, 1987. Each category contains an allocation of chargeable and nonchargeable expenses. Also included is a description of what expenses the union considers to be chargeable and nonchargeable. The notice advises the fee payers of their rights to challenge the fee within 45 days, and informs them that 100% of the disputed fee will be placed into escrow pending the outcome of arbitration.

On August 16, 1988, the Commonwealth began deducting the fees. Pursuant to the collective bargaining agreement, the Commonwealth is to remit to Council 13 dues and fair share fees withheld in one month by the end of the following month.

On August 26, 1988, the 15 named plaintiffs, nonunion Commonwealth employees who work in bargaining units represented by AFSCME Council 13, filed this lawsuit on behalf of themselves and all others similarly situated. Their complaint alleges that the union and the Commonwealth have violated and continue to violate their first and fourteenth amendment rights by exacting the fair share fees. They claim that Act 84 is unconstitutional, both on its face and as applied in this case, and that the defendants' scheme for collecting compulsory fees from nonconsenting nonmembers fails to meet the constitutional requirements enunciated in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). Pending resolution of this matter, Council 13 has escrowed all of the fees withheld from all fair share fees payers, whether they have objected or not.

Approximately 500 nonmembers have submitted challenges to the fees by following the statutorily prescribed procedures. On January 18, 1989, an arbitrator appointed by the American Arbitration Association upheld the union's determination of chargeable expenses and its calculation of the fees.

Discussion

It is beyond doubt that agency shop fair share fees, accompanied by appropriate procedural safeguards, are constitutional. Hudson; 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). In this case, the court simply must examine the safeguards mandated by Act 84 and implemented by the defendants, and determine whether they satisfy the constitutional requirements set forth in Hudson. As explained below, we conclude that the defendants have complied with all aspects of Hudson except its verification requirement. With respect to that question, the existence of a factual issue precludes a decision at this time.

Many of the issues raised in the plaintiffs' request for a preliminary injunction, have been reargued in the current motions. Therefore much of what we write now reiterates what was said in denying that motion. See Hohe v. Casey, 695 F.Supp. 814 (3d Cir.1988), aff'd 868 F.2d 69 (3d Cir. 1989). We again emphasize that the questions to be decided are narrow, and, for the most part, technical. Though we are aware of and understand the plaintiffs' philosophical objections to fair share fee programs, those matters are not before the court. We shall not, as the plaintiffs would like, indulge in an analysis of the advisability of such programs on social or political grounds. The General Assembly, rightly or wrongly, has spoken, and the union has availed itself of the benefits of the law. Absent a constitutional infirmity, we are without the authority to satisfy the plaintiffs. They must turn, instead, to the legislature for relief.

We preface our discussion of the several motions under consideration with these remarks because a significant number of the plaintiffs' arguments appear to be directed not at whether the Hudson requirements have been met, but rather at whether fair share fee programs should be subject to more stringent requirements. We will neither consider nor discuss those arguments. In addition, the plaintiffs continually emphasize only the first amendment component of the Hudson decision. Though we agree that the plaintiffs' first amendment rights are indeed worthy of protection, we must weigh those rights against the union's rights, as did the Supreme Court in Hudson.¹

The Hudson Court held that fair share fee programs must "minimize the risk that nonunion employee's contributions might be used for impermissible purposes." Hudson, 475 U.S. at 309, 106 S.Ct. at 1077, 89 L.Ed.2d at 248.

"The objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities." Abood, 431 U.S., at 237, 97 S.Ct. at 1800.

Procedural safeguards are necessary to achieve this objective for two reasons. First, although the government interest in labor peace is strong enough to support an "agency shop" notwithstanding its limited infringement on nonunion employees' constitutional rights, the fact that those rights are protected by the First Amendment requires that the procedure be carefully tailored to minimize the infringement. Second, the nonunion employee — the individual whose First Amendment rights are being affected — must have a fair opportunity to identify the impact of the governmental action on his interests and to assert a meritorious First Amendment claim.

Id. at 302-03, 106 S.Ct. at 1074, 89 L.Ed.2d at 244-45 (footnotes omitted). The required safeguards include "an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." Id. at 310, 106 S.Ct. at 1078, 89 L.Ed.2d at 249. With those principles in mind, we turn to the plaintiffs' claims that because it does not minimize the risk of excessive collections or the burden of objection, the fair share scheme at issue here fails to satisfy the constitutional requirements of Hudson.

A. Timeliness of the Notice

Citing Damiano v. Matish, 830 F.2d 1363 (6th Cir.1987), Tierney v. City of Toledo, 824 F.2d 1497 (6th Cir.1987), Gilpin v. AFSCME, 643 F.Supp. 733 (C.D.Ill.1986), and Lehnert v. Ferris Faculty Ass'n, 643 F.Supp. 1306 (W.D.Mich.1986), the plaintiffs assert that notice of the fee deductions was untimely. They claim that Hudson requires notice to all potential fee payers before any fees may be collected.

Under the facts of this case, the timeliness of the...