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ROBINSON v. PENNSYLVANIA STATE CORRECTIONS OFFICERS ASS'N

February 4, 2005.

LEROY ROBINSON and JAY DINO, Plaintiffs
v.
PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSOCIATION, et al., Defendants.



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

MEMORANDUM

Once again the court must consider the efforts of defendant, the Pennsylvania State Corrections Officers Association ("Association"), to impose a "fair share fee" on nonunion public employees in a manner consistent with the First Amendment. The court previously held that a fee assessed by the Association from December 2001 through mid-2003 was unconstitutional because advance notice was not provided to employees.*fn1 Now under review, in the context of cross-motions for summary judgment, is a subsequent fee collected from mid-2003 to mid-2004 and preceded by notice dated March 15, 2003. Whether this notice provided a constitutionally adequate explanation of the basis for the fair share fee is the dispositive issue for resolution. Page 2

I. Statement of Facts*fn2

  The Association was named as exclusive bargaining representative for employees of Pennsylvania corrections and forensic facilities in 2001 and soon entered into a new collective bargaining agreement on their behalf. One provision of the agreement required the Commonwealth to deduct a fair share fee from nonunion employees and to remit these funds to the Association to finance its activities. (Doc. 46 ¶¶ 1-3; Doc. 50 ¶¶ 1-3). The Association notified the Commonwealth that a fee of 1.00% of nonunion employees' gross pay was appropriate to meet the Association's expenses. In late 2001, without prior notice to employees, the Commonwealth began deducting the fee from salaries of nonunion employees and remitting these amounts to the Association. (Doc. 46 ¶¶ 4-5; Doc. 50 ¶¶ 4-5; see also Doc. 37 at 2).

  On March 15, 2003, the Association issued a notice to nonunion employees, stating that a new fair share fee would be assessed starting in April 2003.*fn3 The sixteen-page document explains the nature and basis of the fee. It lists thirty-two types of expenses, categorized by their relationship to the collective bargaining activities of the union, and indicates that only those Page 3 expenses that are "germane" to such activities will be charged to nonunion employees. (Doc. 44, Ex. 1; Doc. 46 ¶ 6; Doc. 50 ¶ 6). The percentage of "chargeable expenses" to total expenses, according to the notice, is approximately 77.67%. By multiplying this percentage by the dues rate for union members (1.50% of wages), the notice concludes that the fair share fee is 1.17% of wages. (Doc. 44, Ex. 1).

  Appended to the notice is an audit report of the "major categories of expenses" on which the fair share fee calculation was based. The report states that the purpose of the audit was to "obtain a reasonable assurance about whether the schedule of expenses and allocation between chargeable and nonchargeable expenses is free of material misstatement." (Doc. 44, Ex. 1). The attached schedule details seventeen categories of expenses incurred by the union in 2002, including "salaries and wages," "affiliation [costs]," and "rent and utilities." These categories are divided between chargeable and nonchargeable expenses, and notes to the report describe the union's methodology in classifying certain costs as chargeable to nonunion employees. The report states that the percentage of chargeable expenses to total expenses is approximately 77.67%, and, by multiplying this percentage by the union dues rate, concludes that the fair share fee is 1.17% of wages. (Doc. 44, Ex. 1).

  Shortly after distribution of the notice, plaintiffs and several other nonunion employees filed objections with the Association, challenging the "calculation of Page 4 chargeable expenses and the amount of the [f]air [s]hare [f]ee." The objections were referred to the American Arbitration Association ("AAA"), pursuant to procedures outlined in the notice, and hearings were scheduled for September 2003 before an arbitrator selected by the AAA. The hearings were subsequently rescheduled at the request of plaintiffs, and did not commence until March 2004. (Doc. 46 ¶¶ 8-9, 11-14; Doc. 50 ¶¶ 8-9, 11-14; Doc. 50, Exs. K, L; Doc. 51, App. E).

  Before and during this period, plaintiffs prosecuted the above-captioned case on behalf of a class of nonunion employees.*fn4 They claim that the Association's fee assessment infringed upon their First Amendment rights. (Docs. 1, 16). The court ruled in January 2004 that the collection of fair share fees prior to the March 15, 2003, notice violated nonunion employees' rights, but deferred entry of judgment pending resolution of plaintiffs' remaining claims.*fn5 The parties thereafter filed cross-motions for summary judgment on the adequacy of the March 15, 2003, notice and objection procedures.*fn6 (Docs. 42, 44). Oral argument on the motions was held on January 31, 2005. (Doc. 68). Page 5

  II. Standard of Review

  Summary judgment is appropriate when the evidence of record unquestionably establishes the validity of one party's position. See FED. R. CIV. P. 56(c), (e); Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004). Doubts over the weight to be accorded testimony and exhibits must be resolved in favor of the opposing party, which must be given the benefit of all reasonable inferences to be drawn from the evidence. Schnall v. Amboy Nat'l Bank, 279 F.3d 205, 209 (3d Cir. 2002). Only if the facts of the case, so construed, demonstrate that one party cannot succeed on its claim or defense should summary judgment be entered. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

  This task is more difficult when the court is presented with cross-motions for summary judgment: when both the plaintiff and the defendant are non-moving parties and each is entitled to consideration of the evidence in its favor. InterBusiness Bank, N.A. v. First Nat'l Bank of Mifflintown, 318 F. Supp. 2d 230, 235-36 (M.D. Pa. 2004). However, the dispositive issue in this case — the facial adequacy of the notice — does not implicate factual disputes susceptible to different standards of review. The notice has been submitted to the court, and both parties agree on its contents and authenticity. The only question, whether the notice satisfies constitutional disclosure requirements, is one of law and may be resolved on the summary judgment record. See Chi. Teachers Union, Local Page 6 No. 1 v. Hudson, 475 U.S. 292, 307 & n. 18 (1986); Hohe v. Casey, 956 F.2d 399, 403 (3d Cir. 1992).

  III. Discussion

  Many states, including Pennsylvania, permit "agency shop" arrangements between an employees' union and a public employer. See 43 PA. CONS. STAT. § 211.7; PA. STAT. ANN. tit. 71, § 575; see also Otto v. Pa. State Educ. Ass'n, 330 F.3d 125, 129 (3d Cir.), cert. denied, 540 U.S. 982 (2003). Under these arrangements, a single union is designated as the exclusive representative of employees, regardless of individual union membership. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 224 (1977); see 43 PA. CONS. STAT. § 211.7. Other unions are precluded from participating in contract negotiations, and the final agreement reached by the designated union affects all employees. Abood, 431 U.S. at 224.

  That employees may reap the benefit of union negotiations without joining the organization creates an obvious "free-rider" problem. See id. at 222-26, 231, 234-35. The incentive for employees to join a union, and to assume the obligation of union dues, is to draw on the collective bargaining power of the organization. Id. at 221-22. Under an agency shop arrangement, however, employees enjoy the results of the union's exertions whether or not they accept membership. Individual employees have little ...


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