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Wenzig v. Service Employees International Union Local 668

United States District Court, M.D. Pennsylvania

December 10, 2019




         Pending before the court is the motion to dismiss the first amended complaint (“FAC”), (Doc. 19), of plaintiffs Janine Wenzig and Catherine Kioussis filed by defendant Service Employees International Union Local 668 (“SEIU”), (Doc. 25). Defendant's motion seeks dismissal of this case for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). SEIU contends that plaintiffs' First Amendment claims against it, in this putative class action, for retrospective monetary relief under 42 U.S.C. §1983 should be dismissed since it relied in good faith on the formerly valid Pennsylvania law and longstanding United States Supreme Court precedent that allowed it to collect fair-share fees from public-sector employees who were not members of the union. For the reasons that follow, SEIU's motion to dismiss under Rule 12(b)(6) will be GRANTED and, plaintiffs' federal claims against SEIU will be DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Plaintiffs bring this civil rights action pursuant to 42 U.S.C. §1983.[1] Plaintiffs are both employed by the Commonwealth of Pennsylvania. Wenzig is employed by the Department of Human Services as a Licensing Supervisor and Kioussis is an Income Maintenance Supervisor. SEIU is a labor union with its headquarters in Harrisburg, Pennsylvania, and it is the exclusive representative for several bargaining units in the state, including plaintiffs' bargaining unit. As members of the bargaining unit represented by SEIU, plaintiffs received the benefits of the Collective Bargaining Agreement (“CBA”) between SEIU and Pennsylvania. However, even though plaintiffs were not members of SEIU, they allege that the union was legally allowed to collect fair share fees from them under Pennsylvania's Public Employee Fair Share Fee Law, “43 Pa.Stat.Ann. §1102.3”, since it represented them in collective bargaining.[2] Under state law, SEIU negotiated with the state for the collection of fair share fees from nonmembers, including plaintiffs.

         In particular, Article 3, Section 3 of the CBA, which was effective from July 1, 2016 through June 30, 2019, provided:

The Employer further agrees to deduct a fair share fee from all compensation paid to all employees in the bargaining unit who are not members of the Union. Authorization from non-members to deduct fair share fees shall not be required. The amounts to be deducted shall be certified to the Employer by the Union and the aggregate deductions of all employees shall be remitted together with an itemized statement to the Union by the last day of the succeeding month after such deductions are made.

         Thus, under the CBA, prior to June 27, 2018, all employees in the collective bargaining units who were represented by SEIU and who were not union members, such as plaintiffs, were forced to pay “fair-share fees” to SEIU as a condition of their public employment. Plaintiffs further allege that before June 27, 2018, government employers covered by the CBA “deducted fair share fees from Plaintiffs' and other nonmembers' wages without their consent and, ..., transferred those funds to SEIU, which collected those funds.” Plaintiffs also allege that “[a]s of 2018, agency fees were assessed by SEIU at 0.85% of an employee's gross income; union member paid dues of 1.39% of gross income.”

         As such, plaintiffs aver that “SEIU should have known that its seizure of fair share fees from non-consenting employees likely violated the First Amendment.”

         Plaintiffs also seek to bring this case as a class action under Fed.R.Civ.P. 23(b)(3) for themselves and for all others similarly situated. They define the proposed class as “all current and former employees from whom SEIU collected fair share fees pursuant to its collective bargaining agreement with the Commonwealth of Pennsylvania.”

         Plaintiffs raise one claim in their FAC, namely, a First Amendment claim. Specifically, plaintiffs allege that “SEIU violated [their] and class members' First Amendment rights to free speech and association, as secured against state infringement by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983, by requiring the payment of fair share fees as a condition of employment and by collecting such fees.”

         As relief, plaintiffs request declaratory judgment, pursuant to 28 U.S.C. §2201(a), “declaring that SEIU violated Plaintiffs' and class members' constitutional rights by compelling them to pay fair share fees as a condition of their employment and by collecting fair-share fees from them without consent.” Additionally, plaintiffs seek monetary damages “in the full amount of fair share fees and assessments seized from their wages”, as well as costs and attorneys' fees under 42 U.S.C. §1988.

         Plaintiffs are proceeding on her FAC filed on October 28, 2019. (Doc. 19). On November 5, 2019, SEIU filed its motion to dismiss plaintiffs' FAC, (Doc. 25), and its brief in support, (Doc. 26). On November 19, 2019, plaintiffs filed their brief in opposition. (Doc. 31). SEIU filed its reply brief on December 3, 2019. (Doc. 32).

         The court has jurisdiction over this case pursuant to 28 U.S.C. §1331 and 28 U.S.C. §1343(a) because plaintiffs aver a violation of their rights under the U.S. Constitution. Venue is appropriate in this court since the parties are located in this district and the alleged constitutional violations occurred in this district. See 28 U.S.C. §1391.


         Plaintiffs instituted this case after the Supreme Court decided Janus.[3]Plaintiffs are state employees who, before Janus, were required to pay fair-share fees to SEIU for collective bargaining representation.[4] Specifically, the CBA contained a fair share fee provision which required plaintiffs to pay fair-fair share fees to SEIU. However, after the Janus decision SEIU stopped receiving fair-share fees from non-members, including plaintiffs. In this action, plaintiffs seek SEIU to repay themselves, as well as a putative class of all non-union state employees, all the fair-share fees that the union received prior to Janus.

         As a backdrop, prior to Janus, unions representing government employees could use “agency shop” clauses in collective bargaining agreements “which required every employee represented by a union, even those who declined to become union members for political or religious reasons, to pay union dues.” Diamond, 399 F.Supp.3d at 370-71. In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782 (1977), the Supreme Court “held that the charges were constitutional to the extent they were used to finance the union's collective-bargaining, contract-administration, and grievance activities.” Id. at 370. “[T]he Court [in Abood] also concluded that the agency-shop clause and fees were unconstitutional insofar as the clause compelled non-member teachers to pay fees to the union that supported the union's political activities.” Id.

In accordance with Abood, Pennsylvania enacted its own agency-shop statute for public employees in 1988, 71 Pa. Stat. §575. According to Section 575, if mandated by the provisions of a collective-bargaining agreement, non-members of public-employee unions must pay fair-share fees to the unions. Id. §575(b). These fees consist of the regular union-membership dues less “the cost for the previous fiscal year of [the unions'] activities or undertakings which were not reasonably employed to implement or effectuate the duties of the employee organization as exclusive representative.” Id. §575(a).

Id. at 371.

         Thus, prior to Janus, Pennsylvania law expressly allowed a labor union which was the representative of a bargaining unit of public employees to collect fair share fees from the employees who were members of the bargaining unit but who did not join the union, as a condition of their employment. See 71 P.S.A. §575; 43 P.S.A. §1102.3. Further, based on Abood, “the general propriety of the fair-share fees permitted under Section 575 withstood constitutional scrutiny for many years.” Diamond, 399 F.Supp.3d at 370. Id. (string citations omitted).

         In Janus, the Supreme Court overruled Abood, and held that “a state law requiring non-union-member public employees to pay fees to the union to compensate the union for costs incurred in the collective-bargaining process” was unconstitutional. Id. at 372. Thus, the Court in Janus, 138 S.Ct. at 2486, held that “States and public-sector unions may no longer extract agency fees from nonconsenting employees.” Id. Further, the Court held that “[n]either an agency fee nor any other payment to the union may be deducted from a non[-]member's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Id. See also Babb v. California Teachers Association, 378 F.Supp.3d 857, 867 (C.D.Ca. 2019) (In Janus, the Supreme Court “overruled Abood [ ] and its progeny, holding that no form of payment to a union, including agency fees, can be deducted or attempted to be collected from an employee without the employee's affirmative consent.”) (citing Janus, 138 S.Ct. at 2486).

         Additionally, the Supreme Court in Janus, 138 S.Ct. at 2459, 2486, held that it was a violation of the First Amendment for public sector unions to require non-members to pay fair share fees as a condition of public employment. Following Janus, Pennsylvania's statute allowing the collection of “fair share” fees from non-members by unions is no longer enforceable. See Hartnett v. Pennsylvania State Education Association, 390 F.Supp.3d 600 (M.D.Pa. May 17, 2019). In Diamond, 399 F.Supp.3d at 385, the court held that the issue of “whether Union Defendants could constitutionally collect fair-share ...

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