The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
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.
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
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
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
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).
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
No. 1 v. Hudson, 475 U.S. 292, 307 & n. 18 (1986); Hohe v.
Casey, 956 F.2d 399, 403 (3d Cir. 1992).
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