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.
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).
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, ...