Prescott v. County of El Dorado

• Decision Date: 22 February 1996
• Docket Number: No. Civ. S-95-1859 LKK/JFM.,Civ. S-95-1859 LKK/JFM.
• Citation: 915 F. Supp. 1080
• Court: U.S. District Court — Eastern District of California
• Parties: Steven H. PRESCOTT, et al., Plaintiffs, v. COUNTY OF EL DORADO, et al., Defendants.

915 F. Supp. 1080

Steven H. PRESCOTT, et al., Plaintiffs, v. COUNTY OF EL DORADO, et al., Defendants.

No. Civ. S-95-1859 LKK/JFM.

United States District Court, E.D. California.

February 22, 1996.

COPYRIGHT MATERIAL OMITTED

Dain Weiner, Cameron Park, CA, W. James Young, National Right to Work Legal Defense Foundation, Inc., Springfield, VA, for plaintiffs.

Fred J. Hiestand, Sacramento, CA, Michael W. Roman, Berkeley, CA, for defendants.

ORDER

KARLTON, Chief Judge, Emeritus.

Pending before the court is the plaintiffs' motion for a preliminary injunction. Oral argument was heard on January 16, 1996, and the matter was taken under submission. The court disposes of the matter herein.

I. FACTS¹

Plaintiffs are Public employees of the County of El Dorado. In early 1995, the County entered into a collective bargaining agreement ("CBA") with the El Dorado County Employees Association, Local #1 ("EDCEA" or "the union"). The CBA between EDCEA and the County establishes an "agency shop" under which all employees of the bargaining unit must either maintain membership in the union or pay a "fair share" agency fee as a condition of employment with the County.

EDCEA is one of forty affiliates of the Professional Employees Union, Local # 1 ("PEU") which represent employees of local public agencies, cities, counties and special districts. EDCEA has 570 members and there are an additional 114 fee payers; PEU has over 9100 total members and an additional 482 fee payers. All dues from the EDCEA are paid to PEU.

In April 1995, EDCEA forwarded to the nonmembers a notice informing them that the County would begin to deduct a "fair share fee" from their paychecks equaling 98% of the full union dues.² The notice explains that the union uses the fair share fee to defray the costs incurred by it for both individual and group representation with regard to employment relations with the County, and claims that the actual costs for nonchargeable expenditures are less than 2%.

Enclosed with the notice is a schedule of PEU's projected expenditures for the 1995 fiscal year, based upon expenditures for the 1994 fiscal year. The schedule identifies the major categories of expenses and places an asterisk next to those categories which the union deems as "non-representational expenditures." These non-representational categories are denominated: (1) "ideological expenditures," (2) "social events, gifts, and donations," (3) "contributions to political education fund," and (4) "blood bank." The notice further explains that "fair share fees do not include any expenses incurred for political action, social activities or organizing expenses. Organizing expenses are those incurred to bring new bargaining units into representation by public employees union, Local # 1."

The notice also includes a statement of PEU's revenues and expenses for the 1994 fiscal year. This document lists the major categories of expenses and indicates whether they were paid from the general operating fund or the political education fund. According to the 1994 statement, only "contribution expenses" and "bank charges" were payed by the political education fund; "contribution for political education" and "social events, gifts etc." came from the general fund.

Finally, a letter from a CPA is attached to the notice. It reports that the 1994 statement was "reviewed" in accordance with standards established by the American Institute of Certified Public Accountants, and that it conformed with "generally accepted accounting principles."

The notice explains that if a nonmember challenges the fee, the union will set aside an additional 2% of his or her fair share fee in an interest-bearing escrow account.³ Under the original notice nothing further occurs until ninety days after the end of the fiscal year, when the union publishes a statement of the year's income and general expenditures.

A nonmember dissatisfied with the fee may challenge it in writing within thirty days after publication of the fiscal year end report. The nonmember's challenge is resolved by an arbitrator selected in accordance with procedures established by the American Arbitration Association or the state conciliation and mediation service.

The nonmembers were told that the procedure for challenging the amount of the fair share fee required the dissenting nonmember to submit a letter to the PEU, signed under penalty of perjury, stating the specific expenditure or expenditures, from the list of projected expenditures, believed not to be chargeable as a fair share fee. Subsequent to the filing of this suit, the requirement that the dissenting nonmember specify the category objected to and make the objection under penalty of perjury was eliminated.⁴

The County began deducting the agency fees on May 12, 1995. Plaintiffs filed this lawsuit on October 10, 1995. They note that the notice to the nonmembers fails to provide an audited financial disclosure of the local union's chargeable versus nonchargeable allocations and fails to provide audited financial disclosure of the breakdown of chargeable versus nonchargeable expenditures of each affiliated labor organization that receives money from the EDCEA. They also assert that the notice fails to assure nonmembers that the union will not use their dues to support nonchargeable expenses, and imposes burdensome procedures for challenging the fee. In light of these asserted deficiencies, they claim that the procedures used by the union to collect the fees violate the nonmembers' rights under the First and Fourteenth Amendments to the Constitution of the United States. Plaintiffs seek a preliminary injunction restraining the County and the union from collecting any fees from plaintiffs, or otherwise enforcing the agency shop arrangement, until a constitutionally adequate notice has been provided and constitutionally adequate procedures are in place and operating.

II. PRELIMINARY INJUNCTION STANDARDS UNDER FED.R.CIV.P. 65

The purpose of a prohibitory preliminary injunction is to preserve the relative positions of the parties—the status quo—until a full trial on the merits can be conducted. See University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). The limited record usually available on such motions renders a final decision on the merits inappropriate. See Brown v. Chote, 411 U.S. 452, 456, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973).

"The Supreme Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982). Speculative injury, however, does not constitute irreparable injury. Goldie's Bookstore, Inc. v. Superior Court of State of California, 739 F.2d 466, 472 (9th Cir.1984).

In the Ninth Circuit, two interrelated tests exist for determining the propriety of the issuance of a preliminary injunction. The moving party carries the burden of proof on each element of either test. See Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1203 (9th Cir.1980).

Under the first "traditional" test, the court may not issue a preliminary injunction unless each of the following requirements is satisfied: (1) the moving party has demonstrated a likelihood of success on the merits, (2) the moving party will suffer irreparable injury and has no adequate remedy at law if injunctive relief is not granted, (3) in balancing the equities, the nonmoving party will not be harmed more than the moving party is helped by the injunction, and (4) granting the injunction is in the public interest. See Martin v. International Olympic Committee, 740 F.2d 670, 674-75 (9th Cir.1984).

Under the second "alternative" test, the court may not issue a preliminary injunction unless the moving party demonstrates "either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." The Ninth Circuit has explained that the two parts of the alternative test are not separate and unrelated, but are "extremes of a single continuum." Benda v. Grand Lodge of Intern. Ass'n of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). We are taught that the critical element within this alternative test is the relative hardship to the parties. See Id. Even if the balance tips sharply in favor of the moving party, however, it must be shown at an "irreducible minimum" that there is a "fair chance of success" on the merits. International Olympic Committee, 740 F.2d at 674-75.

In exercising their sound discretion, courts should pay particular regard to public consequences in granting an injunction. Weinberger, 456 U.S. at 312, 102 S.Ct. at 1803.

III. LIKELIHOOD OF SUCCESS ON THE MERITS

The likelihood of plaintiffs' success depends on the substantive law. Below, I briefly examine the origins of the legal doctrine underlying plaintiffs' action and then turn to their specific claims.

A. The Doctrine of Unwilling Allegiance

In Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Supreme Court held that requiring nonunion employees to support their collective-bargaining representative "has an impact upon their First Amendment interests.... But ... such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop" to the creation of labor peace. Id. at 222, 97 S.Ct. at 1793. Accordingly, the court held that the constitution is no impediment to unions achieving recognition as the exclusive collective-bargaining representative of public employees, nor to the concomitant obligation of nonunion employees, as a condition of employment, paying a service fee to...