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Oliver v. Service Employees International Union Local 668

United States District Court, E.D. Pennsylvania

November 12, 2019

SHALEA OLIVER, Plaintiff,
v.
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 668 ET AL., Defendants.

          MEMORANDUM

          GERALD AUSTIN MCHUGH, UNITED STATES DISTRICT JUDGE

         This is an action brought in the aftermath of Janus v. AFSCME, 138 S.Ct. 2448 (2018), in which a sharply divided Supreme Court significantly altered the structure under which public employee unions operate when it overruled long-standing precedent, declaring the practice of collecting fees from non-member employees unlawful. Plaintiff here, a former union member who resigned from the union after Janus was decided, seeks monetary damages against Defendant, Service Employees International Union Local 668 (or the Union), for membership dues paid to the Union from the beginning of her employment in December 2014 through the date of her resignation in August 2018. Although nothing compelled Plaintiff to join the Union, she argues that she cannot have given her “affirmative consent” in her choice to become a member and is now entitled to a full refund of her membership dues. Plaintiff further seeks a declaratory judgment that certain provisions of Pennsylvania's Public Employe Relations Act (PERA) are unconstitutional as applied to her.

         The parties have agreed to proceed through cross-motions for summary judgment on a stipulated record.

         As to Plaintiff's damages claim, the Union promptly refunded all dues deducted from her pay once she resigned from membership, and there is no factual or legal basis for any refund while she was a member.[1] Furthermore, Plaintiff's damages claim is one for violation of constitutional rights brought under 42 U.S.C. § 1983, and she cannot meet the requirement of state action. Even if she could, the Union would be protected by its good-faith reliance on settled law until Janus was decided.

         As to Plaintiff's claim for declaratory relief with respect to the operation of PERA, she lacks standing, because she was permitted to resign from membership and the current collective bargaining agreement between the Commonwealth and Local 668 does not include the “union security” clause to which she objects. For these reasons, the Union's motion for summary judgment and motion to dismiss will be granted, and Plaintiff's motion for summary judgment will be denied.

         I. Factual Background

         Plaintiff Shalea Oliver is an employee of the Pennsylvania Department of Human Services working as an Income Maintenance Caseworker in the Philadelphia County Assistance Office. Employees at the Philadelphia County Assistance Office are represented in collective bargaining by Local 668, and at the time of Plaintiff's hiring, a Collective Bargaining Agreement (CBA) existed between Local 668 and the Commonwealth as authorized by PERA. The CBA at that time included union security provisions, authorized by 43 P.S. §§ 1101.301(18), 1101.401, and 1101.705, which restricted the window of time in which Local 668 members could withdraw their membership and cease paying full membership dues.

         Upon being hired in December 2014, Plaintiff was presented with a choice as then-sanctioned by the Supreme Court's decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and PERA: either enroll in Local 668 as a member and have full membership dues deducted regularly from her pay, or decline membership and contribute a reduced amount in the form of agency fees.[2] Plaintiff elected to enroll as a member in the Union. On June 27, 2018, the Supreme Court issued its opinion in Janus v. AFSCME, 138 S.Ct. 2448 (2018), overruling Abood and holding that charging agency fees to non-member employees in public sector unions was unconstitutional under the First Amendment. On August 10, 2018, Plaintiff sent a letter to Local 668 announcing her resignation from the Union and requesting the cessation of dues deductions. The Union transmitted the letter to the Commonwealth on September 20, 2018, instructing it to cease deducting dues. When the Commonwealth did not immediately respond, the Union wrote again in November 2018 and January 2019, until the requested action was taken, and Local 668 refunded to Plaintiff the amount deducted in the interim, a total of $287.49. Stipulation ¶¶ 18-23, ECF 35. Plaintiff is no longer a member of Local 668 and does not pay any dues to the Union.

         Following Janus, Local 668 and the Commonwealth entered into a Side Letter effective April 2, 2019, modifying the CBA and effectively nullifying the union security provisions it contained by allowing members to resign at any time from that date forward. The Side Letter has since been superseded by a new CBA which lacks any union security provisions.

         II. Standard of Review

         Plaintiff and Local 668 have filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). A grant of summary judgment is appropriate “if, drawing all inferences in favor of the nonmoving party, the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). The parties have submitted stipulated facts and agree that there are no genuine issues of material fact present in this case.

         Local 668 has also filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(h)(3), on the basis that Plaintiff lacks standing to pursue its claims for declaratory relief as to the application of 43 P.S. §§ 1101.301(18), 1101.401, and 1101.705. Rule 12(h)(3) provides: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

         III. Discussion

         A. Plaintiff's Voluntary Choice to Join Local 668 Defeats Her Claim for Damages

         When Plaintiff was hired, PERA made clear that she was not obligated to join the Union: “It shall be lawful for public employes to organize, form, join or assist in employe organizations… and such employes shall also have the right to refrain from any or all such activities.”[3] 43 P.S. § 1101.401. It is difficult to comprehend how Plaintiff can complain that she was compelled to join the Union in violation of her First Amendment right of free association.[4] There was no legal compulsion for her to join, and the economic advantage in declining membership and paying an agency fee would have been self-evident.[5] Plaintiff contends that if only she had known of a constitutional right to pay nothing for services rendered by the Union-despite knowledge of her right at the time to refuse membership and pay less- she would have declined union membership completely. I can discern no logic in such a position. Plaintiff has not alleged she was actively pressured to join, and the Supreme Court has held that that background social pressure employees may feel to join a union is “no different from the pressure to join a majority party that persons in the minority always feel” and “does not create an unconstitutional inhibition on associational freedom.” Knight v. Minnesota Community College Faculty Association, 465 U.S. 271, 290 (1984). Not surprisingly, other courts have held that “[w]here the employee has a choice of union membership and the employee chooses to join, the union membership money is not coerced. The employee is a union member voluntarily.” Kidwell v. Transportation Communications Int'l Union, 946 F.2d 283, 292-93 (4th Cir. 1991). Accord Farrell v. IAFF, 781 F.Supp. 647, 649 (N.D. Cal. 1992).

         In codifying Plaintiff's right to refrain from joining the Union, PERA was following Supreme Court precedent established long before Janus. The “First Amendment right to opt out of union membership was clarified in 1977 [by Abood], ” with the result that an employee's decision to join a union thereafter must be viewed as voluntary. Smith v. Sup. Ct., Cty. of ContraCosta, 2018 WL 6072806, at *1 (N.D. Cal. Nov. 16, 2018). Nothing in Janus ...


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