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January 15, 2004.


The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge


Presently before the court is a motion (Doc. 23) by plaintiffs, representing a class of nonunion workers employed by the Commonwealth of Pennsylvania, for partial summary judgment. Plaintiffs claim that defendant, the Pennsylvania State Correctional Officers Association ("Association"), exclusive bargaining representative for the employees, violated their First Amendment rights by collecting a "fair share fee" without prior notice justifying the fee. The Association contends that it was excused from offering such notice because, as a new organization, it lacked a history of expenditures on which to base a fair share fee calculation.

The question presented is whether a "new union" exception exists to the constitutional requirement that unions provide notice to nonunion employees explaining the basis of a fair share fee prior to collection. For the reasons that follow, the court holds that no such exception exists and will grant the motion for partial summary judgment. Page 2

 I. Statement of Facts

  The Association was formed in 2001 to serve as the collective bargaining representative for employees of state correctional and forensic facilities. (Doc. 25 ¶¶ 7-8; Doc. 34, Ex. 1). During that year, the Commonwealth of Pennsylvania decertified the incumbent collective bargaining unit*fn1 and certified the Association as the new exclusive representative for the employees. Shortly thereafter, the Commonwealth and the Association executed a new collective bargaining agreement governing terms and conditions of employment for these individuals. (Doc. 25 ¶¶ 7-8, 12; Doc. 34, Ex. 1).

  One provision of the agreement required the Commonwealth to deduct "fair share fees" from nonunion employees and to remit these fees to the Association to finance its bargaining activities. (Doc. 25 ¶¶ 13-14; Doc. 34). Officials of the Association, after reviewing the expenditures of its predecessor, determined that a fee of one percent of nonunion employees' gross pay was appropriate to meet the Association's expenses. (Doc. 25 ¶¶ 15-16; Doc. 34, Ex. 1). The Association neither notified employees that the fee would be charged nor disclosed the method used to calculate the one percent fee. (Doc. 25 ¶¶ 31-32; Doc. 34). The Commonwealth began deducting the fee from salaries of nonunion employees in December 2001, remitting these amounts to the Association. (Doc. 25 ¶ 26; Doc. 34). Page 3

  In June 2002, plaintiffs filed a complaint on behalf of all nonunion employees required to pay the fair share fee,*fn2 claiming that collection of the fee without prior notice of the method of calculation violates the First Amendment rights of nonunion employees. (Docs. 1, 5). Defendants filed an answer admitting that the fair share fee had been deducted from nonunion employees' salaries without such notice but denying that this resulted in a constitutional violation. (Docs. 13-14).

  On March 15, 2003, the Association issued to nonunion employees a notice of a change in the fair share fee. (Doc. 25 ¶ 41; Doc. 34). The notice listed the categories of expenses incurred by the Association in previous years and distinguished between expenditures related to non-ideological activities (chargeable to nonunion employees) and those related to ideological activities (not chargeable to these employees). (Doc. 25, App. D at U1793-U1804). Based on audited financial statements from previous years, the union set the new fair share fee at 1.17% of gross salary. The notice also advised individuals that they could challenge the computation of the fee before an independent arbitrator and that all deductions would be held in escrow pending resolution of the objections. (Doc. 25, App. DatU1793-U1804). Page 4

  In July 2003, plaintiffs filed a motion for summary judgment on the issue of whether collection of fair share fees before March 15, 2003, violated the First Amendment rights of nonunion employees. (Doc. 23). Plaintiffs seek an order declaring a constitutional violation and directing defendants to account for and disgorge all fees collected from nonunion employees during this period. (Doc. 23).

 II. Standard of Review

  Federal Rule of Civil Procedure 56 permits the entry of summary judgment against a party on an issue or a claim when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c); see also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). In resolving a motion for summary judgment, courts should not weigh conflicting evidence or make factual findings but, rather, should "consider all evidence in the light most favorable to the non-moving party" to determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Schnall v. Amboy Nat'l Bank, 279 F.3d 205, 209 (3d Cir. 2002). Summary judgment is appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Page 5

 III. Discussion

  Resolving whether the Association breached its constitutional obligations by failing to provide advance notice of the fair share fee requires an examination of the Supreme Court's decisions in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and Chicago Teachers Union. Local No. 1 v. Hudson, 475 U.S. 292 (1986). These cases upheld the validity of "agency shop" arrangements, in which all employees, regardless of union affiliation, are obligated to contribute financially to the union designated as exclusive bargaining representative by the employer. Hudson, 475 U.S. at 301-03: Abood. 431 U.S. at 211, 231. The Court recognized that a blanket requirement forcing nonunion employees to support union activities implicates the First Amendment rights of those employees. Nevertheless, it held that such interference was "constitutionally justified by . . . the important contribution" of such arrangements to ensure the viability of union representation and eliminate "free riders" — employees who benefit from the union's bargaining efforts but refuse to support those exertions financially. Id. at 222-26, 231, 234-35; accord Hudson, 475 U.S. at 302-03. Therefore, unions may impose a fair share fee on nonunion employees "to finance expenditures by the [u]nion for the purposes of collective bargaining, contract administration, and grievance adjustment." Abood, 431 U.S. at 225-26, 231.

  However, the Court refused to allow unions to use fair share fees for "ideological" and "political" activities. Hudson, 475 U.S. at 305; see Abood, 431 U.S. at 234-35. Whatever the benefits of union representation, they cannot Page 6 outweigh the First Amendment rights of nonunion employees to support only that political speech with which they agree. Hudson, 475 U.S. at 305-06: see also Abood, 431 U.S. at 234 ("The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights."). Unions may not use funds obtained through a fair share fee to advance "political views,. . . political candidates, or . . . other ideological causes not germane to [their] duties as . . . collective-bargaining representative." Id. at 235. Any appropriation of a nonunion employee's earnings for an impermissible use, even if the funds are later returned, ...

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