Wessel v. City of Albuquerque

• Decision Date: 13 August 2002
• Docket Number: No. 01-2168.,No. 01-2155.,01-2155.,01-2168.
• Citation: 299 F.3d 1186
• Parties: Rory A. WESSEL; Donald Scott; Frank Parra; Walter K. Newton; Paulette Mora Gonzales; Mark C. Mora; Janine Lavigne; Raymond Largo, Sr.; Mark A. Garcia; Rudy Archuleta, Jr.; Jerry Anaya; Sam Aguilar; Rueben Lucero, and all others similarly situated, Plaintiffs-Appellants/Cross-Appellees, v. CITY OF ALBUQUERQUE; Jim Baca, Mayor, City of Albuquerque; Peggy Hardwick, Director Employee Relations, City of Albuquerque; Local 624 American Federation of State, County & Municipal Employees, AFL-CIO, Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

299 F.3d 1186

Rory A. WESSEL; Donald Scott; Frank Parra; Walter K. Newton; Paulette Mora Gonzales; Mark C. Mora; Janine Lavigne; Raymond Largo, Sr.; Mark A. Garcia; Rudy Archuleta, Jr.; Jerry Anaya; Sam Aguilar; Rueben Lucero, and all others similarly situated, Plaintiffs-Appellants/Cross-Appellees, v. CITY OF ALBUQUERQUE; Jim Baca, Mayor, City of Albuquerque; Peggy Hardwick, Director Employee Relations, City of Albuquerque; Local 624 American Federation of State, County & Municipal Employees, AFL-CIO, Defendants-Appellees/Cross-Appellants.

No. 01-2155.

No. 01-2168.

United States Court of Appeals, Tenth Circuit.

August 13, 2002.

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Raymond J. LaJeunesse, Jr., National Right to Work Legal Defense Foundation, Inc., Springfield, VA (Robert L. Pidcock, Albuquerque, NM, with him on the briefs), for Appellants/Cross-Appellees.

Jeremiah A. Collins of Bredhoff & Kaiser, P.L.L.C., Washington, DC (Robert Alexander of Bredhoff & Kaiser, P.L.L.C., Washington, DC; Jerry Todd Wertheim of Jones Sneed Wertheim Wentworth & Jaramillo, PA, Santa Fe, NM; and Robert F. Tinnin and Thomas J. McBride of Hinkle Hensley Shanor & Martin, LLP, Albuquerque, NM, with him on the briefs), for Appellees/Cross-Appellants.

Before EBEL and McKAY, Circuit Judges, and SAM,^* Senior District Judge.

McKAY, Circuit Judge, delivering the opinion of the court^** as to Issues 1-5.

Thirteen non-union members brought this 42 U.S.C. § 1983 action against the City of Albuquerque alleging that the City violated their First Amendment rights through the compulsory deduction of union fair share fees from their wages. The nonmembers filed this action in the United States District Court for the District of New Mexico seeking a declaratory judgment and injunction to prevent further fair share deductions. They also sought damages or equitable restitution in the amount of all or part of the fees unlawfully collected, nominal damages, and attorney fees.

The district court granted the nonmembers leave to supplement their complaint to set forth additional events which were a continuation of conduct alleged in the original complaint. However, the district court denied the nonmembers' request to add a sixth claim for relief, two new defendants, a jury demand, and a demand for punitive damages on the ground of undue delay.

The parties filed cross-motions for summary judgment. The district court granted summary judgment to the nonmembers on their second claim for relief, holding that the Union's fair share notice was unlawful and violated the nonmembers' constitutional right to disclosure of sufficient information to gauge the propriety of the Union's fee. The court awarded the nonmembers nominal damages of $1.00 but denied injunctive relief. The district court granted Defendants summary judgment on all other claims. The parties cross-appealed to this court.

The parties raise six issues on appeal. They are: (1) whether the 1996 City of Albuquerque Fair Share Resolution provides legislative authorization for the collection of fair share fees; (2) whether a union's notice to nonmembers of a fair share fee payment's basis is constitutionally inadequate if the notice does not include a full audit of the union's schedule of chargeable and nonchargeable expenses; (3) whether the district court abused its discretion in refusing to enter a permanent injunction against future unlawful fair share notices and in determining that a refund of the entire fair share fee was not required where plaintiffs had received a refund of all fair share amounts improperly charged to them; (4) whether the Fair Share Resolution must be construed to only allow fees to be used for bargaining-related expenses in the unit and as prohibiting collection of fees representing the pro rata costs of union programs available to all bargaining units; (5) whether the district court abused its discretion in denying plaintiffs' motion to amend their complaint to add a new claim, two new defendants, a jury demand, and a demand for punitive damages based on undue delay; and (6) whether an agreement by a union to indemnify a public employer against claims arising out of fair share fee collection violates the First Amendment and 42 U.S.C. § 1983.

Issue 1 — Legislative Authorization:

We first address whether the 1996 City of Albuquerque Fair Share Resolution provides legislative authorization for the collection of fair share fees. The parties raised this issue in their cross-motions for summary judgment. The district court granted summary judgment in favor of the City, holding that the Fair Share Resolution does provide legislative authorization for the collection of fair share fees. We review "the grant of summary judgment de novo, applying the same standards used by the district court." Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998).

Requiring employees to help finance the union as a collective bargaining agent is constitutionally justified only if there has been a legislative assessment by the public employer. Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 517, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991). The Fair Share Resolution in this case expressly provides that "collective bargaining agreements with City employee unions may include fair share provisions if at least 50% of the recognized bargaining unit are union members." Aplt.App. at 43. The Resolution conveys the clear intent of the City of Albuquerque to permit the collection of fair share fees.

Beyond evidencing an intent to allow fair share fees, the legislative assessment must be valid. The nonmembers argue that the language in a City ordinance enacted previous to the Fair Share Resolution prohibits fair share fees and that the Resolution cannot override the prior ordinance. The ordinance in question provides that "City employees ... have the right to refuse to join and participate in the activities of employee organizations." Albuquerque, N.M., Code § 3-24(A). The ordinance's plain language simply states that employees are not required to join the union or take part in union activities. The ordinance is silent as to the collection of fair share fees. Nonmember employees are only required to pay the fair share fee representing the Union's cost of bargaining on their behalf. "[T]he desirability of labor peace and eliminating `free riders'" justify the payment of fair share fees "`for the purposes of collective bargaining, contract administration, and grievance adjustment.'" Lehnert, 500 U.S. at 517 (quoting Abood v. Detroit Bd. of Educ., 431 U.S. 209, 225-26, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) (forced contribution does not violate nonmembers rights because of the strong public policy interests in labor peace and the elimination of "free riders")). Viewed in the context of the public policy interests of allowing fair share fees, we hold that the ordinance (which does not specifically address the fee issue) does not necessarily prohibit these fees.

The subsequently enacted Fair Share Resolution makes clear the City of Albuquerque's intent to allow fair share fees. The legislative assessment that is constitutionally required in order to allow fair share fees does not demand specific language or formality. See id. at 517; see also Abood, 431 U.S. at 222 ("Such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress."); see also Nashua Teachers Union v. Nashua Sch. Dist., 142 N.H. 683, 707 A.2d 448, 450 (1998) ("We interpret Abood also to permit agency fees in the public sector where the legislature has implicitly authorized them by statute as part of an overall legislative scheme to promote labor peace through mandatory collective bargaining."). All that is necessary is the expression of an interest to promote labor peace and prevent free riding with orderly collective bargaining. Lehnert, 500 U.S. at 517; Abood, 431 U.S. at 222. The Fair Share Resolution expressly states that "collective bargaining agreements with City employee unions may include fair share provisions." Aplt.App. at 43. The specific language employed in the Fair Share Resolution meets the Lehnert necessary expression of the desirability of allowing fair share fees. We agree with the district court that the Fair Share Resolution "is an adequate legislative assessment by the City" allowing the deduction of fair share fees. Aplt.App. at 410.¹

We acknowledge that some courts have found a conflict between fair share resolutions and right-to-work laws, but our research suggests that the vast majority of those decisions were based on fair share deductions equal to the amount of dues paid by union members. See Baldwin v. Arizona Flame Rest., Inc., 82 Ariz. 385, 313 P.2d 759, 762, 766 (1957) (recounting lower court's unreported ruling that deduction of sum equivalent to union dues violated right-to-work law, but declining to reach issue); City of Hayward v. United Public Employees, Local 390, 54 Cal. App.3d 761, 126 Cal.Rptr. 710, 714 (1976) ("The forced payment of dues or their equivalent is, at the very least, `participation' in an employee organization."); Schermerhorn v. Local 1625, Retail Clerks Int'l Ass'n, 141 So.2d 269, 273, 276 (Fla. 1962) (holding that deduction of sum equal to union dues violates state constitutional prohibition on denying right to work "on account of membership or non-membership in any labor union"); Higgins v. Cardinal Mfg. Co., Inc., 188 Kan. 11, 360 P.2d 456, 466 (1961) (holding that deduction of sum equal to union dues violates state constitutional amendment prohibiting employer from conditioning employment on union membership); Churchill v. S.A.D. # 49 Teachers Ass'n, 380 A.2d 186, 192 (Me.1977) ("[T]he forced payment of dues or their equivalent under an `agency shop' clause is tantamount to coercion toward membership or, at the very least, toward...