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HOHE v. CASEY

September 15, 1988

MARY A. HOHE, et al., Plaintiffs,
v.
ROBERT P. CASEY, Governor, et al., Defendants



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 Introduction

 Through this action the plaintiffs present a constitutional challenge to Act No. 84 of 1988 which amended Pennsylvania's Administrative Code of 1929, 71 P.S. ยงยง 51-732 (Purdon 1962 and Supp.1988), to allow labor unions to collect "fair share fees" from certain non-union Commonwealth employees. Pending for disposition is the plaintiffs' motion for a preliminary injunction in which they challenge the procedure utilized by the defendants to deduct the fee from their paychecks. At issue presently are the technical aspects of the implementation of the fee collection program and not the constitutionality of Act 84 or the fair share fee concept. As explained below, the plaintiffs' preliminary injunction motion will be denied and the temporary restraining order currently in effect will be lifted.

 Background

 On July 13, 1988, Act 84 amended Pennsylvania's Administrative Code to authorize labor unions to bargain for and collect a "fair share fee" from certain non-union Commonwealth employees, in order to offset the cost of collective bargaining on behalf of said non-members. On July 28, 1988, AFSCME Council 13 and the Commonwealth amended their collective bargaining agreement to provide for the deduction of such fees from the paychecks of the plaintiffs and other non-members who are represented by the Union for collective bargaining purposes. Council 13 determined the non-members' fair share fee to be equal to 88.55% of the members' regular dues. Based on the union dues rate of 1.5% of base salary, the fair share fee was calculated to be 1.33% of a non-member's base salary. The Union determined the identities of the non-member fee payers from the Commonwealth's payroll records and informed the Commonwealth of the names and amounts to be deducted.

 The Union prepared a notice to be sent to the non-member fee payers to explain how the fair share fee was calculated. The notice, dated August 8, 1988, lists the Union's audited 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 and the notice contains a description of what expenses the Union considers to be chargeable and nonchargeable It advises the fee payers of their rights to object to payment of the fee on religious grounds or to challenge the fee calculation itself within 45 days. When challenges are made, an impartial decisionmaker is to be appointed by the American Arbitration Association to conduct a hearing. At that hearing, Council 13 will have the burden of proof regarding the amount of the fair share fee and the accuracy of the underlying calculation of chargeable expenses. Upon receipt of a challenge, the Union is to deposit in an interest bearing escrow account 100% of the fair share fee paid by the challenger. The fee will remain in escrow until resolution of the challenge by the decisionmaker, and will then be distributed according to the ruling.

 On August 26, 1988, the 15 plaintiffs, Commonwealth employees who work in bargaining units represented by AFSCME Council 13, filed this lawsuit. The plaintiffs are not members of Council 13 and claim the Union and the Commonwealth have violated their first and fourteenth amendment rights by exacting the fair share fees. Also on August 26, 1988, the plaintiffs filed a motion for a temporary restraining order and a preliminary injunction, through which they challenge the constitutional adequacy of the procedure the defendants used to implement the fair share fee program. On August 30, 1988, the court restrained further fair share fee deductions pending a hearing on the preliminary injunction motion. Said hearing was conducted on September 9, 1988, and the plaintiffs' motion for preliminary injunction is now ripe for disposition.

 Discussion

 For a court to grant a request for a preliminary injunction:

 
the moving party must generally show (1) a reasonable probability of eventual success in the litigation and (2) that the movant will be irreparably injured pendente lite if relief is not granted. Moreover, while the burden rests upon the moving party to make these two requisite showings, the district court "should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest."

 In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir.1982) (quoting Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir.1975)). Unless both probability of success and irreparable harm are demonstrated, preliminary injunctive relief is not to be granted. Id. (Citing Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982) (en banc)).

 The only issues to be decided presently concern the procedural adequacy of the technical aspects of the Union's program and the notice sent to the plaintiffs. The question of the constitutionality of Act 84 or of fair share fee programs in general is not now before the court. *fn1" However, it is worthy of note that although fair share fee programs impinge upon first amendment rights, it is clear that with proper procedural safeguards, they are constitutional. 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, however, "minimize the risk that nonunion employees' contributions might be used forimpermissiblepurposes." Hudson, 475 U.S. at 309, 106 S. Ct. at 1077, 89 L. Ed. 2d at 248. The Supreme Court wrote in Hudson that:

 
"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.

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