OLIVER v. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 668

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHALEA OLIVER, : CIVIL ACTION

Plaintiff, :

: No. 19-891

v. :

:

SERVICE EMPLOYEES :

INTERNATIONAL UNION LOCAL 668 :

ET AL., :

Defendants. :

McHUGH, J. NOVEMBER 12, 2019

MEMORANDUM

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, and declared the practice of

collecting fees from non-member employees unlawful. Plaintiff here, a former union member

who resigned after Janus was decided, seeks monetary and injunctive relief from the

Commonwealth of Pennsylvania for alleged violations of her First Amendment rights, including

a complete refund of her membership dues and an end to public sector exclusive bargaining.

Because she can neither show an ongoing controversy as to her claims against the

Commonwealth, nor show that Janus has made exclusive bargaining unlawful, the

Commonwealth Defendants are entitled to judgment as a matter of law.

I. Factual Background

Plaintiff Shalea Oliver is an employee of the Pennsylvania Department of Human

Services working in the Philadelphia County Assistance Office. Employees at the Philadelphia

County Assistance are represented in collective bargaining by Service Employees International

Union 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 Pennsylvania’s Public

Employe Relations Act (PERA).1

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 Ed., 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 have a lesser amount deducted from

her pay in the form of an “agency fee” to account for the services the Union provided in

protecting her financial interests. Plaintiff chose to enroll as a member in the Union, paying full

membership dues.2 On June 27, 2018, by a 5-to-4 majority, 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. After being

notified by Local 668 of Plaintiff’s request, the Commonwealth stopped deducting dues from

Plaintiff’s paychecks in January 2019. Local 668 then refunded the money deducted from

Plaintiff’s paychecks from the date of Plaintiff’s letter to the time the Commonwealth suspended

1 The irregular spelling “employe” appears in public sector labor law statutes of other states as well. The Wisconsin

Court of Appeals examined this anomaly with respect to its own statute and determined that it resulted from a

deliberate decision made by the statute’s original drafter to prevent typographical errors: “Since ‘e’ and ‘r’ are right

next to each other on the typewriter keyboard, there's a real risk that ‘employer’ might be typed ‘employee,’ and

vice-versa.” Richland Sch. Dist. v. Dep't of Indus., Labor & Human Relations, Equal Rights Div., 479 N.W.2d 579,

583 n.1 (Wis. Ct. App. 1991).

2 Plaintiff contends that her choice to join the Union cannot be deemed voluntary. That contention will be separately

addressed in a memorandum opinion dealing with her claims against Local 668.

the deductions. Plaintiff is no longer a member of Local 668 and does not currently pay any

dues or agency fees to the Union.

II. Standard of Review

Plaintiff and the Commonwealth 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 a

statement of undisputed facts, ECF 35, and agree that there are no genuine issues of material

fact.3

III. Discussion

In Count I of the complaint, Plaintiff asserts that Commonwealth Defendants and Local

668 violated her rights to free speech and freedom of association under the First Amendment by

collecting membership dues from her. Plaintiff argues that she did not provide the Defendants

her “affirmative consent” so as to waive her First Amendment right to refrain from contributing

money to Local 668, either as a member or a non-member. In Count II of the complaint,

Plaintiff contends that her First Amendment rights to free speech and freedom of association

continue to be impinged by the system of exclusive representation effectuated by PERA, which

requires a single union representative to bargain on behalf of a represented group of public sector

workers. Although she is no longer a member of Local 668, Plaintiff argues that she is still

3 The parties were granted leave to conduct discovery but have not cited to anything beyond the stipulated facts.

unlawfully compelled to associate with the Union based on its status as her bargaining unit’s

exclusive representative.

In moving for summary judgment, the Commonwealth makes two arguments: (1)

Plaintiff’s claims under Count I are moot or otherwise barred by sovereign immunity, and (2)

Plaintiff’s claims under Count II cannot succeed because exclusive representation does not

violate Plaintiff’s First Amendment rights. I agree with the Commonwealth that Plaintiff’s

claims under Count I are moot, and further agree that Plaintiff’s Count II claims fail because

Janus has not rendered public sector exclusive representation unconstitutional. Its motion will

therefore be granted and Plaintiff’s cross-motion denied.

A. Plaintiff’s Claims Under Count I are Moot

Federal courts lack jurisdiction where no real controversy exists. Thus, if the issues

presented are “no longer live,” the case is moot. Brown v. Philadelphia Housing Authority, 350

F.3d 338, 343 (3d Cir. 2003). “The doctrine of mootness requires that ‘an actual controversy

must be extant at all stages of review, not merely at the time the complaint is filed.’” Id.

(quoting New Jersey Turnpike Authority v. Jersey Cent. Power, 772 F.2d 25, 31 (3d Cir. 1985)).

Thus, “[a] case may become moot if (1) the alleged violation has ceased, and there is no

reasonable expectation that it will recur, and (2) interim relief or events have ‘completely and

irrevocably eradicated the effects of the alleged violation.’” Finberg v. Sullivan, 658 F.2d 93,

97-98 (3d Cir. 1980) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).

The question before me is whether Plaintiff has alleged the existence of any ongoing

violations, or, if the violations alleged have ceased, whether Plaintiff might reasonably expect the

violation to recur. The party asserting mootness bears a heavy burden to show the case is moot.

Seneca Res. Corp. v. Twp. of Highland, 863 F.3d 245, 254 (3d Cir. 2017). But on the record

here, the Commonwealth has met that burden because Plaintiff’s rights are not currently being

violated and the Commonwealth has shown that potential future violations are highly unlikely to

occur.

Plaintiff seeks declaratory relief against the Commonwealth that its applications of 43

P.S. §§ 1101.301(18), 1101.401, and 1101.705 in PERA, which all concern “maintenance of

membership” provisions in CBAs between the Commonwealth and representative employee

organizations, are unconstitutional. 43 P.S. § 1101.301(18) defines such provisions as follows:

“Maintenance of membership” means that all employes who have joined an

employe organization or who join the employe organization in the future must

remain members for the duration of a collective bargaining agreement so

providing with the proviso that any such employe or employes may resign from

such employe organization during a period of fifteen days prior to the expiration

of any such agreement.

43 P.S. § 1101.401 outlines the scope of employee rights under PERA:

It shall be lawful for public employes to organize, form, join or assist in employe

organizations or to engage in lawful concerted activities for the purpose of

collective bargaining or other mutual aid and protection or to bargain collectively

through representatives of their own free choice and such employes shall also

have the right to refrain from any or all such activities, except as may be required

pursuant to a maintenance of membership provision in a collective bargaining

agreement.

Taken together, these sections of PERA permit CBAs between the Commonwealth and

employee organizations such as unions to include time restrictions specifying when an employee

has the right to resign from membership. They do not, however, require all CBAs to include

maintenance of membership provisions. This is further clarified by a separate provision of the

statute, § 1101.705:

Membership dues deductions and maintenance of membership are proper subjects

of bargaining with the proviso that as to the latter, the payment of dues and

assessments while members, may be the only requisite employment condition

(emphasis added).

Plaintiff mischaracterizes PERA as binding all employee members of public unions by

maintenance of membership provisions, when in fact the statute goes no further than to recognize

that maintenance of membership provisions are a proper subject of collective bargaining.

This is an important distinction, as reflected by the facts of this case. The previous CBA

between the Commonwealth and Local 668, effective from July 1, 2016 to June 30, 2019,

included a maintenance of membership provision limiting the timeframe within which members

could resign from the Union. In reaction to Janus, however, the Commonwealth and the Union

agreed to amend the CBA through a Side Letter on April 2, 2019. The Side Letter allowed any

member of Local 668 to withdraw membership at any time. The Commonwealth, in turn, agreed

to cease deducting dues from former members’ pay upon notification by Local 668. The Side

Letter did not conflict with or purport to override the statutory scheme created by PERA

regarding maintenance of membership provisions; to the contrary, it was executed pursuant to 43

P.S. § 1101.705, altering the terms of the CBA to comply with Janus. In short, Plaintiff’s

argument that the issue is not moot because the Side Letter cannot overcome the statute fails

because it is premised upon Plaintiff’s misreading of the statute.

Furthermore, as a factual matter PERA did not preclude Plaintiff from resigning, as even

before the Side Letter was negotiated and the CBA was amended her wishes were honored and

her dues refunded. Plaintiff sent a letter of resignation on August 10, 2018. 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. In summary, the Union acted promptly, persisted when the Commonwealth did not

immediately respond, and returned dues erroneously collected. Any violation of Plaintiff’s First

Amendment rights was limited in time, and quickly redressed.

Finally, the Plaintiff’s misreading of the statute is confirmed by the fact that the new

CBA negotiated post-Janus does not have any maintenance of membership provision. Stipulation

¶7, ECF 35.

Plaintiff attempts to overcome the lack of present harm by arguing that her claim is

capable of repetition but evading review, invoking the principle that declaratory relief is

appropriate where there is “governmental action directly affecting, and continuing to affect, the

behavior of citizens in our society.” Pl.’s Resp. to Commonwealth MSJ at 7, ECF 31 (quoting

Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 125 (1974)). As an initial matter, it should be

noted that the Supreme Court has since narrowed the breadth of Super Tire, holding that “the

capable-of-repetition doctrine applies only in exceptional situations, and generally only where

the named plaintiff can make a reasonable showing that he will again be subjected to the alleged

illegality.” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Plaintiff has pointed to

nothing that would suggest the Commonwealth is undertaking action or likely to undertake

action that would contravene Janus. The conduct of both the Union and the Commonwealth to

this point weighs strongly against any such an eventuality.

In that regard, the Commonwealth and the Union are typically in an adversarial posture,

both at the bargaining table and with respect to employee discipline and termination. Janus is a

decision that indisputably weakens unions of public employees. The Commonwealth has no

incentive whatsoever to undermine the substantial institutional advantage Janus confers,

rendering the likelihood of any future violation nil.

As a result, Plaintiff’s claims for declaratory relief against the Commonwealth under

Count I of her complaint are moot, and accordingly, this Court does not have subject matter

jurisdiction to hear them.4

B. Public Sector Exclusive Representation Remains Lawful After Janus

Plaintiff’s claims under Count II of her complaint seeking injunctive relief cannot

succeed either, for her federal rights are not violated by the system of exclusive representation

enacted by PERA. Although Plaintiff does not explicitly say so in her briefing, she appears to be

invoking the Ex parte Young exception to Eleventh Amendment immunity in seeking equitable

relief against the Commonwealth defendants, in the form of a declaration that public sector

exclusive representation is unconstitutional.5 To that end, Plaintiff has not sued the

Commonwealth as a defendant directly, but rather has named the Secretary of the Pennsylvania

Department of Human Services, the Secretary of the Office of Administration, the Pennsylvania

Attorney General, and members of the Pennsylvania Labor Relations Board as defendants in

their official capacities and has sought declaratory relief against them. See Blanciak v. Allegheny

Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1996) (“[T]he state official, although formally acting in

an official or representative capacity, may nevertheless be sued in federal court.”).

The exception recognized in Ex parte Young allows courts to provide only prospective,

4 Plaintiff’s monetary claims against Local 668 will be addressed in a separate opinion.

5 The Commonwealth Defendants have raised Eleventh Amendment sovereign immunity defenses to Plaintiff’s

claims to which Plaintiff has failed to respond, but I will nevertheless independently analyze those defenses here.

Eleventh Amendment immunity prevents private citizens from bringing actions in federal court against states.

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984). Aside from suits for injunctive relief

under Ex parte Young, two other clear exceptions apply: Congress may statutorily abrogate states’ Eleventh

Amendment sovereign immunity, or states may waive their sovereign immunity and consent to be sued by private

parties. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997); Seminole Tribe of Florida v. Florida,

517 U.S. 44, 54 (1996); Kentucky v. Graham, 473 U.S. 159, 169 (1985). Plaintiff is suing the Commonwealth

defendants under 42 U.S.C. § 1983, which does not by itself override Eleventh Amendment sovereign immunity.

Quern v. Jordan, 440 U.S. 332, 342 (1979). And the Commonwealth defendants have not consented to being sued

except under limited circumstances, none of which are present in this case. 42 Pa. C.S. § 8521 et seq.

equitable relief to enjoin state actors from ongoing violations of federal law. Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). On the record here,

Plaintiff’s claim for injunctive relief fails, because PERA’s system of exclusive representation

does not violate Plaintiff’s First Amendment free speech and associational rights. In Minnesota

State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), the Supreme Court upheld

Minnesota’s system of public sector collective bargaining, which allowed the state to discuss

non-mandatory subjects of bargaining solely with employees’ exclusive representative. The

Knight court rejected dissenting teachers’ arguments that such a scheme harmed their First

Amendment free speech and associational interests, explaining that “[t]he state has in no way

restrained appellees’ freedom to speak on any education-related issue or their freedom to

associate or not to associate with whom they please, including the exclusive representative. Nor

has the state attempted to suppress any ideas.” Id. at 288.

Read properly, Janus reaffirms rather than undermines Knight. Although Janus contains

a brief passage stating that exclusive representation is “a significant impingement on

associational freedoms that would not be tolerated in other contexts,” earlier in that same

sentence the Court held “[i]t is also not disputed that the State may require that a union serve as

exclusive bargaining agent for its employees.” Janus, 138 S. Ct. at 2478. Furthermore, Janus

emphasizes elsewhere that “States can keep their labor-relation systems exactly as they are” and

makes no reference to Knight in the opinion. Id. at 2485 n.27. In that regard, if Knight were

overruled, public employers would lack a readily identifiable, authorized representative with

whom to negotiate, and the practical challenges for public employers in managing their

workforce would be daunting.

The Third Circuit has not yet addressed the issue, but the Eighth and Ninth Circuits have

held that the Supreme Court sanctioned the practice of exclusive representation in public sector

collective bargaining in Knight and agree that Janus cannot be read to have overruled it.

Bierman v. Dayton, 900 F.3d 570, 574 (8th Cir. 2018) (noting that “the constitutionality of

exclusive representation standing alone was not at issue” in Janus); Mentele v. Inslee, 916 F.3d

783, 789 (9th Cir. 2019) (“Janus’s reference to infringement caused by exclusive union

representation . . . is not an indication that the Court intended to revise the analytical

underpinnings of Knight or otherwise reset the longstanding rules governing the permissibility of

mandatory exclusive representation.”).

Based on my reading of Janus, and these circuit decisions, I decline to hold that Local

668’s status as an exclusive representative for the purposes of collective bargaining under PERA

violates Plaintiff’s First Amendment speech or associational rights. Consequently, there is no

ongoing violation of federal rights that Plaintiff can seek to enjoin under Ex parte Young.

IV. Conclusion

Because Plaintiff’s complaints as to past conduct are moot, and because there is no

ongoing constitutional violation, the Commonwealth Defendants are entitled to judgment as a

matter of law. An appropriate order will be issued.

/s/ Gerald Austin McHugh

United States District Judge