United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.
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
bring this civil rights action pursuant to 42 U.S.C.
§1983. 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. Under state law, SEIU negotiated with the
state for the collection of fair share fees from nonmembers,
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.
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.”
such, plaintiffs aver that “SEIU should have known that
its seizure of fair share fees from non-consenting employees
likely violated the First Amendment.”
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
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.”
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.
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).
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.
instituted this case after the Supreme Court decided
Janus.Plaintiffs are state employees who, before
Janus, were required to pay fair-share fees to SEIU
for collective bargaining representation. 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
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.
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
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).
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 ...