956 F.2d at 411, and that "the Commonwealth . . . may be enjoined from imposing the fair share fees on nonmembers when it is determined that the exclusive representative has not complied with the constitutional requirements." Id. Most significant is the citation to and agreement with Tierney, supra, and Dean, supra, that "the employer and the union must have a constitutional procedure in place before deducting fees." 956 F.2d at 406 (emphasis in original). For the plaintiffs, all of this means that Hohe II overrides Hohe I and requires us to grant injunctive relief.
We must first state our disagreement with the plaintiffs' implication, if we are reading their somewhat oblique argument correctly, that we are not now dealing with a motion for a preliminary injunction. It is true that this case was appealed to the Third Circuit and is now here on remand but, prospectively, that does not destroy the preliminary nature of the relief the plaintiffs are seeking, which is an immediate injunction pending final disposition of the matters remanded to us by the Third Circuit.
Thus, procedurally we are in the same position as the Third Circuit in Hohe I, which reiterated the need to satisfy the well established standard for the issuance of a preliminary injunction (including a showing of irreparable injury), and held that the first amendment interest of the plaintiffs here is not irreparably injured when the amount in dispute has been escrowed. Accord Hudson v Chicago Teachers Union, 708 F Supp 961, 963 n 3 (N D Ill 1989).
Additionally, Hohe II is not in conflict with Hohe I. First, if Hohe II had had some substantive impact on Hohe I, the court in Hohe II would have mentioned it. Second, the approval given by Hohe II to injunctive relief must be understood in context. The court in Hohe II was not dealing with preliminary injunctive relief but with the merits of the plaintiffs' claim concerning the adequacy of Council 13's Hudson procedure and what would be an appropriate remedy. Obviously, if we must ultimately decide that the Union has not provided a constitutional procedure for testing the propriety of the fair share fee, we would have to issue injunctive relief against collection of the fee, but that is an issue separate from the appropriateness of interlocutory relief.
Another consideration on the relationship between Hohe II and Hohe I is that, in the face of its conclusion that the notice involving the local presumption was inadequate, the Third Circuit in Hohe II did not remand with instructions to enjoin further collection of the fee attributable to the locals, but merely with instructions that we fashion an appropriate remedy. We do not believe that the court would have so ordered if it felt an injunction was appropriate, since it cited Tierney and Dean in its opinion for another issue. Additionally, as the Commonwealth defendants point out, the Third Circuit elsewhere in its opinion did discuss at length our error in attempting to fashion a remedy on the verification issue, stressing that the proper remedy was limited to nominal damages and did not include actual damages as well. Thus, if it believed that injunctive relief was a clearly appropriate remedy for the plaintiffs on remand, we are confident that it would have instructed us to issue the injunction. Compare Tierney (remanding to the district court with instructions to enjoin further collection of the fair share fee until constitutional procedures were in place).
The exact nature of the Third Circuit's ruling on the local presumption must be kept in mind. The court only concluded that the notice was inadequate because it did not provide nonunion employees with sufficient information to gauge the propriety of the fee by including, among other things, the reasons why Council 13 felt justified in using the local presumption. 956 F.2d at 410. The court did not conclude that the local portion of the fair share fee inaccurately collected for nonchargeable items. Indeed, the court remanded the case to us so that we could determine "whether the percentage amount Council 13 assumed its affiliate locals spent for chargeable items is accurate." 956 F.2d at 416.
Under these circumstances, the relief sought by plaintiffs against collection of the entire portion of the fair share fee would undoubtedly deprive Council 13 of fees to which it is entitled since there has not yet been any determination of the accuracy of the local portion of the fee nor, significantly, have plaintiffs in this motion attempted to show that it was inaccurate, relying instead simply on the inadequate notice. It may turn out that the entire local portion of the fee is chargeable. In Hohe I, the Third Circuit was not receptive to the issuance of broad injunctions granting interim relief in fair-share-fee cases. See 868 F.2d at 73-74.
We must also be practical. Without a determination of the accuracy of the fee, if we were to return the entire local portion to the nonunion employees and prohibit ongoing collection, it may later turn out that the Union would have to seek recoupment of fees to which it was entitled. Even the Sixth Circuit would not deny recoupment. See Lowery v Lexington Local Board of Education, 903 F.2d 422, 433 (6th Cir 1990) (Lowery II). Since Council 13 has provided an escrow for all of the local portion, which the Third Circuit has decided adequately protects the plaintiffs' first amendment rights, it is administratively more convenient to wait until the parties have litigated whether the Union has, in fact, improperly collected money from the plaintiffs. If so, it will be simpler to require Council 13 to rebate the funds rather than have it attempt to recoup them.
As alternative relief, the plaintiffs have requested nominal damages of $ 1.00 each for the inadequate notice involving the local presumption. The defendants have not opposed nominal damages, but they have not specified whether damages are appropriate for each of the four years that the notice was used. We agree with the plaintiffs that they are entitled to nominal damages for each of these years since the defective notice in each year would constitute a separate injury. We will grant this relief as part of any final order we enter in this matter.
We also agree with the plaintiffs that interest should be available to them. Unlike them, however, we do not believe that interest is payable on the entire amount of the local portion of the fee collected while the inadequate notice was being used. Under Ellis v Railway Clerks, 466 US 435, 104 S. Ct. 1883, 80 LEd2d 428 (1984), plaintiffs would be entitled to interest but only on that portion of the fee "illegally held for a period of time." Id. at 442, 104 S. Ct. at 1889, 80 LEd2d at 438. The portion illegally held would be that part attributable to nonchargeable items.
We will issue an appropriate order.
William W. Caldwell
United States District Judge
Date: September 14, 1992
AND NOW, this 14th day of September, 1992, upon consideration of plaintiffs' motion for partial summary judgment and for injunctive relief, it is ordered that:
1. The request for injunctive relief is denied.
2. It is hereby declared, pursuant to 28 USC § 2201, that section 2(g) of Pennsylvania Act No. 84-1988, 71 PS § 575(g) (Purdon 1990), is unconstitutional on its face under the first and fourteenth amendments to the United States Constitution because it requires nonunion public employees to exhaust nonjudicial remedies before bringing challenges to the propriety of fair share fees in court.