United States District Court, M.D. Pennsylvania
January 15, 2004.
LEROY ROBINSON and JAY DINO, Plaintiffs
PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSOCIATION, et al., Defendants
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
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.
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).
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).
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).
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
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, constitutes a violation of the
employee's First Amendment rights. Hudson, 475 U.S. at 305-06
("A forced exaction followed by a rebate equal to the amount improperly
expended is . . . not a permissible response to the nonunion employees'
To "avoid the risk that dissenters' funds may be used [even]
temporarily for an improper purpose," the Court in Hudson
instituted several "procedural safeguard[s]" that unions must follow "to
minimize the risk that nonunion employees' contributions might be used
for impermissible purposes." Id. at 305-06, 309. Perhaps the
most important of these is advance notice to nonunion employees
explaining the method by which the fee was calculated.*fn3 See
id. at 305-06, 309-10.
Basic considerations of fairness, as well as
concern for the First Amendment rights at
stake,. . . dictate that the potential objectors
be given sufficient information to gauge the
propriety of the union's fee. Leaving the
nonunion employees in the dark about the source
of the figure for the agency fee and
requiring them to object in order to receive
information does not adequately protect
the careful distinctions drawn in
Id. at 306. Notice to employees of the nature of the fee,
distinguishing between constitutional and unconstitutional expenditures,
ensures that the burden lies on the union to justify its allocation of
expenses. Id. Failure to provide this notice renders collection
of fees from nonunion employees unconstitutional. Id. at
The Court in Hudson declined to prescribe the contents of a
constitutionally adequate notice but suggested that unions could "not be
faulted for calculating the fee on the basis of [their] expenses during
the preceding year," provided that the disclosure included "the major
categories of expenses, as well as verification by an independent
auditor." Id. at 307 n. 18 (quoting Bhd. of Ry. & S.S.
Clerks v. Allen, 373 U.S. 113, 122 (1963)). Following the Supreme
Court's decision, courts have split on what financial information must be
presented in the notice and whether an independent audit is required in
all circumstances. See Otto v. Pa. State Educ. Ass'n-NEA,
330 F.3d 125, 131 & n.6 (3d Cir.) (citing cases), cert. denied,
124 S.Ct. 467 (2003). Although federal courts have disagreed on the
contents of the Hudson notice, none have questioned the basic
obligation of unions to provide advance justification to nonunion
employees of the basis of the fair share fee. See Hohe v.
Casey, 956 F.2d 399, 410 (3d Cir. 1992): see also Otto,
330 F.3d at 131-33.
Despite this clear dictate, the Association contends that it was
relieved from its constitutional obligation because, as a "new"
organization, it had no history of expenditures on which to estimate the
costs that would be incurred on ideological and non-ideological expenses.
Left only to "guess" at the proper allocation between permissible and
impermissible expenditures, it argues that any notification to
employees would have been insufficient under Hudson and its
progeny to justify its fee calculation. Cf. id. at 134
(requiring that notice be based on audited financial information from
previous year). Implicitly invoking the Latin maxim lex neminem cogit
ad vana seu inutilia peragenda*fn4, the Association suggests that,
because any notice would have been constitutionally deficient, no notice
Restatement of the position is nearly sufficient to refute its merit.
The inability of an entity to meet constitutional prerequisites does not
relieve it of the burden but, instead, precludes the entity from acting.
Just as the Constitution restrains an official who cannot demonstrate
compelling circumstances from imposing a prior restraint, it prohibits a
public employees' union that cannot adequately justify a fair share fee
from collecting the fee. See Hudson, 475 U.S. at 303 n.12
(citing Vince Blasi, Prior Restraints on Demonstrations, 68
MICH. L. REV. 1481, 1534-72 (1970)). The absence of justification does
not excuse the need for it.
The question here is not whether the Association could have
met its constitutional obligations under Hudson, The essence of
the Hudson opinion is that the burden lies on the union to
justify collection of a fair share fee. See id. at 305-06. That
it may be unable to do so does not vitiate the necessity for the
procedural protection; to the contrary, it underscores its use. Without
the exposure required by Hudson, unions could employ mere
guesswork to arrive at their fee schedules, leaving employees to ponder
whether they should go to the considerable expense of bringing a lawsuit
merely to discover that the union had employed a constitutional means for
calculating the fee. See id. A union that cannot satisfactorily
explain the method used to compute a fair share fee simply cannot impose
the fee. Id. at 305-06, 309-11: Otto, 330 F.3d at
134-35. While the contents of the notice required under Hudson
may be debated, it is clear that Hudson mandates some form of
advance notice of the union's intent to collect a fair share fee from
nonunion employees. See Hohe, 956 F.2d at 410.
The Third Circuit recently rejected an argument analogous to the one
advanced by the Association. The union in Otto v. Pennsylvania State
Education Association-NEA, 330 F.3d 125 (3d Cir. 2003), asserted
that it should be exempted from providing a Hudson notice because, as a
"small local union," the costs associated with securing independent
auditor approval of its prior expenditures would have exceeded projected
revenues from collection of the fee. Id. at 131. Essentially,
the union suggested that, because adherence to Hudson was
financially infeasible, adherence was excused. See id.
As the Court of Appeals recognized, however, Hudson precludes
the union from making such an end run around the notice requirement.
See id. at 132-33. Advance notice of the fair share fee is
constitutionally required to protect the rights of nonunion employees.
Id. at 130-31: see also Hohe, 956 F.2d at 410.
Permitting the union to evade the dictates of Hudson on the
basis of excessive cost would sanction violations of nonunion employees'
free speech rights to protect the union's bottom line. Otto,
330 F.3d at 135. Whatever the union's interests in maintaining a steady
flow of income and avoiding the "free-rider" problem, they do not
outweigh the First Amendment rights of nonunion employees to subsidize
only the political expression of their choice. Id. at 130-31,
135; see Hudson, 475 U.S. at 305-06.
A similar result must inhere in the present case. Neither the First
Amendment nor Hudson supports a "new union" exception to the
advance notice requirement. Cf. Otto, 330 F.3d at 132-33
(declining to find a "small local union" exception to the
Hudson safeguards "[a]bsent a counter directive by the Supreme
Court"). As respects the Hudson notice, unions must cut square
corners with nonunion employees. The Association failed to meet its
constitutional obligation under Hudson, and plaintiffs are
entitled to summary judgment on this claim.*fn5
An appropriate order will issue.
AND NOW, this 15th day of January, 2004, upon consideration of
plaintiffs' motion for partial summary judgment (Doc. 23), and for the
reasons set forth in the accompanying memorandum, it is hereby ORDERED
that the motion (Doc. 23) is GRANTED. The Clerk of Court is directed to
defer the entry of judgment until the conclusion of this case.