Petition for Writ of Certiorari — Hollie Adams, et al., Petitioners v. Teamsters Union Local 429, et al.

App. 1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-1824

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HOLLIE ADAMS; JODY WEABER;

KAREN UNGER; CHRIS FELKER,

Appellants,

v.

TEAMSTERS UNION LOCAL 429; COUNTY OF

LEBANON; ATTORNEY GENERAL PENNSYLVANIA;

JAMES M. DARBY, Chairman, Pennsylvania Labor

Relations Board; ALBERT MEZZAROBA, Member,

Pennsylvania Labor Relations Board; ROBERT H.

SHOOP, JR., Member, Pennsylvania Labor

Relations Board, in their official capacities

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Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-19-cv-00336)

District Judge: Honorable Sylvia H. Rambo

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Argued on June 23, 2021

Before: CHAGARES, PORTER

and ROTH, Circuit Judges

(Opinion filed: January 20, 2021 [sic])

App. 2

Charles O. Beckley, II

Beckley & Madden

212 North Third Street

Suite 301

Harrisburg, PA 17108

Jeffrey M. Schwab

Daniel R. Suhr

Liberty Justice Center

190 South LaSalle Street

Suite 1500

Chicago, IL 60603

(ARGUED)

Counsel for Appellants

John R. Bielski

(ARGUED)

Willig, Williams & Davidson

1845 Walnut Street

24th Floor

Philadelphia, PA 19103

Counsel for Appellees

Peggy M. Morcom

(ARGUED)

Morcom Law

226 West Chocolate Avenue

Hershey, PA 17033

Counsel for Appellee County of Lebanon

Ryan B. Smith

Claudia M. Tesoro

(ARGUED)

Nancy A. Walker

Pennsylvania Office of Attorney General

1600 Arch Street

Suite 300

Philadelphia, PA 19103

Counsel for Appellees Attorney General

Pennsylvania; James M. Darby; Albert

Mezzaroba and Robert H. Shoop, Jr.

App. 3

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OPINION*

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ROTH, Circuit Judge:

When the appellant-employees (employees) were

hired, they faced a choice: join a union and pay dues or

decline to join and pay “fair share” fees.1 At the time, it

was lawful for unions to charge fair share fees to nonmembers. The employees, all of whom work for Lebanon County, chose to join Teamsters Union Local 429

(the Union). In 2018, however, the Supreme Court held

in Janus v. AFSCME2 that state laws authorizing unions to charge fair share fees violate the First Amendment. So after Janus, the employees faced a different

choice: pay union dues or pay no fees.

The employees chose to resign from the Union. The

Union stopped charging them dues. It also refunded to

them the dues that had automatically been deducted

after they resigned. Nevertheless, the employees sued.3

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent.

1

A fair share fee is a payment that nonmembers are required

to make to the union, which typically is a percentage of union

dues. See Janus v. Am. Fed’n of State, Cnty., & Mun. Emps.,

Council 31, 138 S. Ct. 2448, 2460 (2018). A “fair share” fee is the

same as an “agency” fee.

2

Id.

3

Nevertheless, the Union continued to withhold money from

Adams and Weaber through March 2019—after they filed this

lawsuit.

App. 4

They sought a refund of the dues they had paid before

they resigned from the Union. In their view, they

should have had the choice to pay dues or pay nothing

at all—even before Janus. Because they did not have

that choice, they contend that their payment of union

dues violated the First Amendment.

The employees also assert that Pennsylvania’s exclusive-representation law, making a union the exclusive bargaining agent for employees, violates the First

Amendment.

The employees filed their complaint in February

2019. The complaint names as defendants the Union,

the County of Lebanon, the Pennsylvania Attorney

General, and members of Pennsylvania’s Labor Relations Board. The parties filed cross motions for summary judgment. The Magistrate Judge issued two

Reports and Recommendations, recommending that

the District Court grant summary judgment for the defendants. The District Court adopted the Magistrate

Judge’s recommendations and dismissed the claims.

The employees appealed.

I.

Jurisdiction

The District Court had jurisdiction under 28

U.S.C. §§ 1331 and 1343. We have jurisdiction under 28

U.S.C. § 1291.

App. 5

II.

Standard of Review

Our review of an order granting a motion for summary judgment is plenary.4 Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”5 In considering

the motions, we “review the record as a whole, draw all

reasonable inferences in favor of the nonmoving party,

and must not ‘weigh the evidence or make credibility

determinations.’ ”6

III.

Discussion

On the issue of refund of dues, we have recently

held in LaSpina v. SEIU Pennsylvania State Council,7

that a former union member has “no standing to seek

a refund of any portion of the union dues she made

prior to Janus because she cannot tie the payment of

those dues to the Union’s unconstitutional deduction

of fair-share fees from nonmembers.”8 LaSpina involved a similar situation to the one we have here: an

employee, in an exclusive representation employment

situation, who joined the union rather than paying a

fair share fee and who then, after Janus, resigned from

the union and sued to get a refund of union dues. We

4

Bletz v. Corrie, 974 F.3d 306, 308 (3d Cir. 2020).

Fed. R. Civ. P. 56(a).

6

Bletz, 974 F.3d at 308 (quoting Parkell v. Danberg, 833 F.3d

313, 323 (3d Cir. 2016)).

7

985 F.3d 278 (3d Cir. 2021).

8

Id. at 281, 287.

5

App. 6

dismissed the claim for refund in LaSpina and following LaSpina, we do the same here. The employees lack

standing to seek a refund of union dues paid before

they resigned the union.9 The employees’ claims for

prospective injunctive and declaratory relief are moot

because they have not shown their employers or the

union will continue to assess union dues.10 To the extent Adams and Weaber still seek damages for union

dues paid after they resigned the union, their claims

are now moot because they have been reimbursed and,

in any event, they fail to state a claim under the First

Amendment.11, 12

Turning to the claim that the Public Employee Relations Act (PERA), Pennsylvania’s exclusive representation law, violates the First Amendment, we hold that,

consistent with every Court of Appeals to consider a

post-Janus challenge to an exclusive-representation

law, the law does not violate the First Amendment.13

9

See id. at 286-87.

Id. at 289-91.

11

See id. at 287-88.

12

One the employees worked for the county for two years

while not a member of the Union. App. 92-93. At the start of her

employment, rather than join the union, she “opt[ed] instead to

pay a fair share fee as a non-member.” App. 130. But she does not

raise any separate refund claim based on her payment of agency

fees. So any separate claim for a refund of agency fees is forfeited.

13

Reisman v. Associated Facs. of Univ. of Me., 939 F.3d 409,

414 (1st Cir. 2019), cert. denied, 141 S. Ct. 445 (2020); Akers v.

Maryland State Educ. Ass’n, 990 F.3d 375, 382 n.3 (4th Cir. 2021);

Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 813-14 (6th Cir.

2020), cert. denied, No. 20-1019, 2021 WL 2301972 (U.S. June 7,

10

App. 7

The Supreme Court rejected a First Amendment

challenge to an exclusive-representation law in 1984.

In Minnesota State Board for Community Colleges v.

Knight, a group of teachers challenged a Minnesota

law that permitted the designation of an exclusive union representative for school employees.14 The Court

explained that the law did not violate the teachers’

freedoms of speech or association.15 The state did not

“restrain[ ] appellees’ freedom to speak on any education-related issue.”16 Nor did the law impermissibly infringe on “their freedom to associate or not to associate

with whom they please.”17 And the teachers were “free

to form whatever advocacy groups they like.”18

Recognizing that Knight presents a large obstacle,

the employees try to tack around it. They argue that

Knight was only about whether the employees could

demand a forum with their employer. This case is different, they posit, because they object to the Union

speaking on their behalf at all. The employees’ complaint is that the Union can allegedly “speak in their

2021); Bennett v. Council 31 of the Am. Fed’n of State, Cnty. &

Mun. Emps., AFL-CIO, 991 F.3d 724, 735 (7th Cir. 2021); Bierman v. Dayton, 900 F.3d 570, 574 (8th Cir. 2018), cert. denied sub

nom., Bierman v. Walz, 139 S. Ct. 2043 (2019); Mentele v. Inslee,

916 F.3d 783, 786-91 (9th Cir. 2019), cert. denied sub nom., Miller

v. Inslee, 140 S. Ct. 114 (2019); Hendrickson v. AFSCME Council

18, 992 F.3d 950, 969 (10th Cir. 2021).

14

465 U.S. 271, 273-75 (1984).

15

Id. at 288.

16

Id.

17

Id.

18

Id. at 289.

App. 8

name.”19 Thus, they argue, Knight does not bar their

constitutional claim.

This reading of Knight, however, is simply at odds

with what it says. It is true that in Knight the teachers

argued that the law violated the First Amendment because it made the union their exclusive representative.

But the Court also considered whether the law violated

the teachers’ First Amendment freedoms of speech or

association. It held that it did not.

Knight forecloses the First Amendment challenge.

Like the law in Knight, PERA allows for the designation of an exclusive representative. Like the law in

Knight, it requires the public employer to negotiate

with the exclusive representative on employment issues. The employees here, like the teachers in Knight,

are free to express whatever ideas they wish, including

through groups they create and including about the

Union. Indeed, PERA protects their right to present

certain grievances to their employer.20 Also like the

teachers, the employees are free to associate—or not—

with the Union. Given these similarities, this law does

not violate the First Amendment.

The employees’ final argument is that Janus undercut Knight. Janus provides, however, that “[s]tates

can keep their labor-relations systems exactly as they

19

20

Employees’ Op. Br. 55.

43 Pa. Stat. § 1101.606.

App. 9

are.”21 Nothing in Janus undermines Knight or exclusive-representation laws.

IV.

Conclusion

For the reasons stated above, we will affirm the

District Court’s orders granting summary judgment to

the defendants.

21

Id. at 2485 n.27.

App. 10

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-1824

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HOLLIE ADAMS; JODY WEABER;

KAREN UNGER; CHRIS FELKER,

Appellants,

v.

TEAMSTERS UNION LOCAL 429; COUNTY OF

LEBANON; ATTORNEY GENERAL PENNSYLVANIA;

JAMES M. DARBY, Chairman, Pennsylvania Labor

Relations Board; ALBERT MEZZAROBA, Member,

Pennsylvania Labor Relations Board; ROBERT H.

SHOOP, JR., Member, Pennsylvania Labor

Relations Board, in their official capacities

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Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-19-cv-00336)

District Judge: Honorable Sylvia H. Rambo

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Argued on June 23, 2021

Before: CHAGARES, PORTER

and ROTH, Circuit Judges

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App. 11

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JUDGMENT

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(Filed Jan. 20, 2022)

This case came to be heard on the record from the

United States District Court for the Middle District of

Pennsylvania and was argued on June 23, 2021.

On consideration whereof,

IT IS ORDERED AND ADJUDGED by this

Court that the judgment of the District Court entered

March 31, 2020, be and the same is hereby AFFIRMED. Costs to be assessed against appellants.

All of the above in accordance with the Opinion of

this Court.

ATTEST:

s/ Patricia S. Dodszuweit

Clerk

Dated:

January 20, 2022

App. 12

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HOLLIE ADAMS, et al., : Civil No. 1:19-CV-336

: (Judge Rambo)

Plaintiffs

:

v.

: (Magistrate Judge Carlson)

:

TEAMSTERS LOCAL

:

UNION 429, et al.,

:

Defendants

:

REPORT AND RECOMMENDATION

(Filed Dec. 5, 2019)

I.

Statement of Facts and of the Case

This lawsuit, which comes before us for consideration of cross motions for summary judgment, seems in

many ways to be a case in search of a current controversy. The element of legal controversy which normally

accompanies a lawsuit is reduced significantly in this

case due to a simple fact: The legal issue which lies at

the heart of this litigation was conclusively resolved by

the United States Supreme Court some eight months

before the plaintiff filed this case.

On June 27, 2018, the United States Supreme

Court decided Janus v. Am. Fed’n of State, Cty., & Mun.

Employees, Council 31, 138 S. Ct. 2448, 2459-60, 201

L. Ed. 2d 924 (2018), holding that a state law under

which “public employees are forced to subsidize a union,

even if they choose not to join and strongly object to the

positions the union takes in collective bargaining and

App. 13

related activities, . . . violates the free speech rights of

nonmembers by compelling them to subsidize private

speech on matters of substantial public concern.” Id. In

reaching this result, the Court expressly overruled its

prior decision in Abood v. Detroit Bd. of Ed., 431 U.S.

209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), which had

for many years sustained the constitutionality of such

state statutes.1 Thus Janus constituted a sea change in

the law as it related to the question of the constitutionality of laws permitting compulsory public employee

union fee deductions.

At the time of the Supreme Court’s decision in Janus, the plaintiffs were employed by Lebanon County

in various capacities. (Doc. 36 ¶¶ 19-64). During their

employment with the county, each of the plaintiffs had

at one time or another joined Teamsters Local 429, the

union representing county workers. For instance, on

April 14, 2003, Plaintiff Hollie Adams was hired by

1

As one court recently explained:

In Abood, the Court confronted a Michigan statute that

allowed unions representing local-government employees to utilize “agency-shop” clauses in collective-bargaining agreements. Id. at 211, 97 S. Ct. 1782. These

clauses required every employee represented by a union, even those who declined to become union members

for political or religious reasons, to pay union dues. Id.

at 212, 97 S. Ct. 1782. . . . . The 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

225, 97 S. Ct. 1782.

Diamond v. Pennsylvania State Educ. Ass’n, No. 3:18-CV-128,

2019 WL 2929875, at *1-2 (W.D. Pa. July 8, 2019).

App. 14

Lebanon County and on May 6, 2003, Adams signed a

union authorization card, joining Local 429. (Id. ¶¶ 1920). Likewise, on December 14, 2009, Plaintiff Christopher Felker was hired by Lebanon County. One month

later, on January 26, 2010, Felker signed a union authorization card and joined the local union. (Id. ¶¶ 3233). Lastly, on June 18, 2007, Plaintiff Jody Weaber was

hired by Lebanon County and Weaber joined the union

one month later, on July 31, 2007, when she signed a

union authorization card. However, not all of the plaintiff-employees felt the need to immediately join Local

429. For example, in October of 2015, Plaintiff Karen

Unger was hired by Lebanon County. Unger did not

sign a union authorization card at the time she started

employment with Lebanon County, opting instead to

pay a fair share fee as a non-member. Unger then deferred for two years before she signed a union authorization card and joined the local union on November 7,

2017. (Id. ¶¶ 42-44).

As county employees, the plaintiffs were also subject to the provisions of the Pennsylvania Public Employee Relations Act (“PERA”), 43 Pa. C.S. §§ 1101.1012301. At the time of the Supreme Court’s decision in

Janus, consistent with prior case law, Pennsylvania

had, by statute, provided for some automatic deductions from public employee pay checks to subsidize union activities. Specifically, PERA provided that:

It shall be lawful for public employes [sic] to

organize, form, join or assist in employe [sic]

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

App. 15

bargaining or other mutual aid and protection

or to bargain collectively through representatives of their own free choice and such employes [sic] 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 of a collective bargaining agreement.

43 Pa. C.S. § 1101.401 (emphasis added). Pennsylvania

law further provided that the term “ ‘[m]aintenance of

membership’ means that all employes [sic] who have

joined an employe [sic] organization . . . must remain

members for the duration of a collective bargaining

agreement . . . with the proviso that any such employe

[sic] . . . may resign from such employe [sic] organization during a period of fifteen days prior to the expiration of any such agreement.” 43 Pa. C.S. § 1101.301(18)

(emphasis added). This provision of state law, in turn,

subjected local government employees to dues, deductions, and maintenance provisions since, by statute,

such deductions were deemed “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.” 43 Pa. C.S.

§ 1101.705.

PERA also provides that:

Representatives selected by public employes

in a unit appropriate for collective bargaining

purposes shall be the exclusive representative

of all the employes in such unit to bargain

on wages, hours, terms and conditions of

App. 16

employment: Provided, That any individual

employe or a group of employes shall have the

right at any time to present grievances to

their employer and to have them adjusted

without the intervention of the bargaining

representative as long as the adjustment is

not inconsistent with the terms of a collective

bargaining contract then in effect: And, provided further, That the bargaining representative has been given an opportunity to be

present at such adjustment.

43 P.S. § 1101.606.

Once a union is designated the exclusive representative of all bargaining unit employees in the bargaining unit, it negotiates wages, hours, terms, and

conditions of employment for all bargaining unit employees. 43 P.S. § 1101.606. In this case, Teamsters Local 429 has been certified as the exclusive bargaining

representative for the bargaining unit employees in

Lebanon County, which includes Plaintiffs. As such,

the defendant local is the exclusive representative of

the bargaining unit, which included the plaintiffs and

their co-workers, with respect to wages, hours, terms,

and conditions of employment. (Id. ¶¶ 12-15).

In accordance with the then-existing state law,

Lebanon County and Defendant Teamsters entered

into a collective bargaining agreement (“CBA” or

“Agreement”), effective from January 1, 2016 through

December 31, 2019. Article 3 of the Agreement stated

in pertinent part as follows:

App. 17

Section 1. Each employee who, on the effective date of this Agreement, is a member of the

Union and each employee who becomes a

member after that date shall, as a condition of

employment, maintain his/her membership in

the Union. An employee may, however, resign

from the Union within fifteen (15) days prior

to the expiration of this Agreement without

penalty by serving written notice to Teamsters Local Union No. 429, 1055 Spring Street,

Wyomissing, PA 19610, and to the Commissioners Office, Lebanon County Court House,

Room 207, 400 South 8th Street, Lebanon, PA

17042.

(Id. ¶¶ 17-18).

Article 4, Section 1 of the Collective Bargaining

Agreement, in turn, contained provisions regarding

dues deductions which stated that:

Section 1. Union Dues. The County agrees to

deduct the Union membership initiation fees,

assessment and once each month, either dues

from the pay of those employees who individually request in wiring that such deduction be

made or fair share. The amount to be deducted

shall be certified to the County by the Union,

and the aggregate deductions of all employees

shall be remitted together with an itemized

statement to the Union by the 10th of the succeeding month, after such deductions are

made. This authorization shall be irrevocable

during the term of this Agreement.

App. 18

(Id. ¶ 18). Taken together, these provisions of state law

and the collective bargaining agreement between Lebanon County and the union created an obligation for

the plaintiffs to make dues payments, something which

they assert they were opposed to doing.

On June 27, 2018, the Supreme Court’s decision in

Janus struck down the continued constitutionality of

laws like the Pennsylvania statute permitting compulsory public employee union fee deductions. Shortly after the Janus decision, the plaintiffs wrote the union

requesting to resign from this labor organization. (Id.

¶¶ 19-64). After some exchanges between the plaintiffs

and the union, these requests were granted and the

unions dues deductions for the plaintiffs ceased. Moreover, by May 2019, the union had refunded those dues

deductions which had taken place between the time of

the plaintiffs’ resignation requests and the processing

of those requests. (Id.)

Specifically, on July 10, 2018, Hollie Adams wrote

the Local requesting to resign her membership. The local union responded to this July 10, 2018 letter on August 13, 2018, denying her request based on the terms

of her dues authorization card. Adams then sent a second letter to the union on August 30, 2018, repeating

her request to resign her union membership. On September 7, 2018, the Local notified Adams that under

the terms of her dues authorization card, her dues deductions would cease in March of 2019, the next available date for withdrawal from dues payments. In fact,

on March 5, 2019, the Local notified Lebanon County

to cease dues deductions for Adams, and Adams’

App. 19

February 28, 2019 payroll check was the last payroll

check in which union dues were withheld.

Between July 2018 and March 2019, the Local received $416.00 in dues deductions for Adams. On May

7, 2019, the Local sent a letter to Adams confirming

that the Local had accepted her resignation of her

membership and that dues deductions had ceased.

Three days later, on May 10, 2019, the Local notified

Adams that it was refunding all dues deductions received by the Local from the time she requested to resign her membership until dues deductions ceased.

Adams then received a refund of $440.96, representing

the $416.00 in dues deductions received by the Local,

as well as six percent statutory interest. (Id. ¶¶ 22-31).

The local union followed a similar course with respect to the other named plaintiffs. For example, on

September 28, 2018, Christopher Felker wrote the Local requesting to resign his union membership. One

week later, on October 5, 2018, the Local informed

Felker that it had accepted his resignation of his membership and his dues deductions would cease by November 2018. Consequently, the payroll check issued to

Felker on October 25, 2018 was the last payroll check

in which union dues were withheld. On May 7, 2019,

the Local sent a letter to Felker confirming that the

Local had accepted his resignation of membership and

that dues deductions had ceased. Three days later, on

May 10, 2019, the Local refunded Felker’s dues deductions, along with accrued interest, from the time he has

notified the union of his resignation. (Id. ¶¶ 35-41). In

the same vein, on July 10, 2018, Karen Unger notified

App. 20

the union that she, too, wished to resign her membership. Alerted to this request in August, the union requested that Lebanon County cease dues deductions

for Unger. The payroll check issued on September 13,

2018 to Unger was the last payroll check in which union dues were withheld and the last dues deductions

received by the local from Lebanon County for Unger

occurred on or about October 1, 2018. Between July 10,

2018 and October 2018, the local received $88.00 in

dues deductions from Lebanon County for Unger. On

May 10, 2019, those funds, with accrued interest, were

refunded by the Local to Unger. (Id. ¶¶ 46-52).

Finally, on July 16 and August 30, 2018, Jody Weaber contacted the Local requesting to resign her union

membership. While the Local initially notified Weaber

in September of 2018 that union dues deductions

would cease in June of 2019, the local actually instructed Lebanon County to cease dues deductions for

Weaber on March 5, 2019. Thus, the payroll check issued on February 28, 2019 by Lebanon County to Weaber was the last payroll check in which union dues

were withheld. Between July 2018 and March 2019,

the local received $392.00 in dues deductions for Weaber. On May 10, 2019, these dues deductions, as well as

six percent statutory interest, were refunded to Weaber. (Id. ¶¶ 56-64).

Notwithstanding these facts, on February 27,

2019, the plaintiffs filed this lawsuit. (Doc. 1). In their

complaint, the plaintiffs sued both the county and the

local union, the entities which were parties to the collective bargaining agreement at issue in this case, as

App. 21

well as four Commonwealth officials, the Pennsylvania

Attorney General, Josh Shapiro, and the members of

the Pennsylvania Labor Relations Board, James

Darby, Albert Mezzoroba, and Robert Shoop. (Doc. 1,

Introduction). Pursuing claims under the federal civil

rights statute, 42 U.S.C. § 1983, the plaintiffs’ complaint contains two counts. Count I brings constitutional free speech claims based upon the Supreme

Court’s decision in Janus, alleging that the conduct of

union officials and the county defendants violated

their constitutional rights under the First and Fourteenth Amendments through compulsory dues payments. (Id. ¶¶ 36-51). Count II of the complaint then

brings a separate First Amendment freedom of association and freedom of speech claim, asserting that the

designation of the local union as the exclusive bargaining representative for all employees unconstitutionally

abridged the plaintiffs’ free speech and association

rights by in some way compelling them to associate

with the union. (Id. ¶¶ 52-65). On the basis of these allegations, the plaintiffs sought injunctive and declaratory relief, along with damages and attorneys’ fees.

(Id., Prayer for relief ).

Lebanon County and Local 429 have both moved

to dismiss this complaint, (Docs. 25 and 27), motions

which the Court then converted to motions for summary judgment. (Doc. 28). In these motions, the defendants argue that the plaintiffs’ requests for prospective

relief are now moot given that they are no longer

members of the union and no longer have union fees

deducted from their wages. The defendants further

App. 22

assert that any damages claims fail as a matter of law,

and that the designation of the union as the exclusive

bargaining representative for these employees does

not violate the First Amendment but rather has been

approved by the United States Supreme Court. The

plaintiffs, in turn, have filed their own cross motion for

summary judgment, arguing that they are entitled to

a judgment in their favor as a matter of law on all of

these constitutional claims.

These competing summary judgment motions are

fully briefed and are, therefore, ripe for resolution. For

the reasons set forth below, it is recommended that the

defendants’ motions to dismiss which have been

deemed motions for summary judgment, (Docs. 25 and

27), be granted, and the plaintiffs’ summary judgment

motion, (Doc. 42), be denied.

II.

Discussion

A. Summary Judgment—Standard of Review

The parties have filed cross motions for summary

judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure, which provides that the court shall

grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). Through summary adjudication, a

court is empowered to dispose of those claims that do

not present a “genuine dispute as to any material fact,”

Fed. R. Civ. P. 56(a), and for which a trial would be “an

App. 23

empty and unnecessary formality.” Univac Dental Co.

v. Dentsply Int’l, Inc., No. 07-0493, 2010 U.S. Dist.

LEXIS 31615, *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and

“[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute

about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable

fact finder to return a verdict for the non-moving party.

Id. at 248-49.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a

genuine issue of material fact. Conoshenti v. Pub. Serv.

Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004).

Once the moving party has shown that there is an absence of evidence to support the nonmoving party’s

claims, “the non-moving party must rebut the motion

with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or

oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt,

455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp.

v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving

party “fails to make a showing sufficient to establish

the existence of an element essential to that party’s

case, and on which that party will bear the burden at

trial,” summary judgment is appropriate. Celotex, 477

U.S. at 322. Summary judgment is also appropriate if

the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at

App. 24

249. There must be more than a scintilla of evidence

supporting the nonmoving party and more than some

metaphysical doubt as to the material facts. Id. at 252,

106 S.Ct. 2505; see also Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all

evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d

791, 794 (3d Cir. 2007).

Moreover, a party who seeks to resist a summary

judgment motion by citing to disputed material issues

of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is

admissible at trial may be considered in ruling on a

motion for summary judgment.” Countryside Oil Co.,

Inc. v. Travelers Ins. Co., 928 F. Supp. 474, 482 (D.N.J.

1995). Similarly, it is well-settled that: “[o]ne cannot

create an issue of fact merely by . . . denying averments

. . . without producing any supporting evidence of the

denials.” Thimons v. PNC Bank, NA, 254 F. App’x 896,

899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a

motion for summary judgment is made and supported

. . . , an adverse party may not rest upon mere allegations or denial.” Fireman’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96

(3d Cir. 1982). “[A] mere denial is insufficient to raise

a disputed issue of fact, and an unsubstantiated doubt

as to the veracity of the opposing affidavit is also not

sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d

Cir. 1969). Furthermore, “a party resisting a [Rule 56]

App. 25

motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v.

Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v.

Marshall, 660 F.2d 517, 519 (3d Cir. 1981)). In reaching

this determination, the Third Circuit has instructed

that:

To raise a genuine issue of material fact . . .

the opponent need not match, item for item,

each piece of evidence proffered by the movant. In practical terms, if the opponent has

exceeded the “mere scintilla” threshold and

has offered a genuine issue of material fact,

then the court cannot credit the movant’s version of events against the opponent, even if

the quantity of the movant’s evidence far outweighs that of its opponent. It thus remains

the province of the fact finder to ascertain the

believability and weight of the evidence.

Id. In contrast, “[w]here the record taken as a whole

could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986) (internal quotation marks

omitted); NAACP v. North Hudson Reg’l Fire & Rescue,

665 F.3d 464, 476 (3d Cir. 2011).

Further:

“When confronted with cross-motions for

summary judgment . . . ’the court must rule

on each party’s motion on an individual and

separate basis, determining, for each side,

whether a judgment may be entered in

App. 26

accordance with the summary judgment

standard.’ ” Transguard Ins. Co. of Am., Inc. v.

Hinchey, 464 F. Supp. 2d 425, 430 (M.D. Pa.

2006) (quoting Marciniak v. Prudential Fin.

Ins. Co. of Am., 184 Fed. App’x 266, 270 (3d

Cir. 2006)). “If review of [the] cross-motions reveals no genuine issue of material fact, then

judgment may be entered in favor of the party

deserving of judgment in light of the law and

undisputed facts.” Id. (citing Iberia Foods

Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.

1998)).

Pellicano v. Office of Pers. Mgmt., Ins. Operations, 8

F. Supp. 3d 618, 625-26 (M.D. Pa. 2014), aff ’d sub nom.

Pellicano v. Office of Pers. Mgmt., 714 F. App’x 162 (3d

Cir. 2017). It is against this analytical prism that we

now assess these cross motions for summary judgment.

B. The Plaintiffs’ Requests for Prospective, Injunctive, and Declaratory Relief

are Now Moot.

At the outset, to the extent that the plaintiffs seek

prospective, injunctive, or declaratory relief, the short

answer to that request is that the plaintiffs have withdrawn from the union, are no longer subject to dues

deductions, have received dues refunds, and, in light of

the Supreme Court’s decision in Janus, are no longer

subject to the threat of future dues deductions since

the Court has struck down these type of “agency

shop” arrangements in which dissenting workers were

App. 27

nonetheless required to pay union dues. Given that

this practice is no longer in effect and cannot be constitutionally reinstituted in light of the Court’s decision in Janus, we agree with those courts who have

considered prospective, injunctive, and declaratory relief requests like those made here and found those requests to be moot.

The mootness doctrine recognizes a fundamental

truth in litigation: “[i]f developments occur during

the course of adjudication that eliminate a plaintiff ’s

personal stake in the outcome of a suit or prevent a

court from being able to grant the requested relief,

the case must be dismissed as moot.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir.

1996). There is a constitutional dimension to the mootness doctrine.

Under Article III of the Constitution, a federal

court may adjudicate “only actual, ongoing

cases or controversies.” Lewis v. Continental

Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249,

108 L.Ed.2d 400 (1990). “To invoke the jurisdiction of a federal court, a litigant must have

suffered, or be threatened with, an actual injury traceable to the defendant and likely to

be redressed by a favorable judicial decision.” Id. (citing Allen v. Wright, 468 U.S.

737, 750-751, 104 S. Ct. 3315, 82 L.Ed.2d 556

(1984); Valley Forge Christian College v.

Americans United for Separation of Church

& State, Inc., 454 U.S. 464, 471-473, 102

S. Ct. 752, 70 L.Ed.2d 700 (1982)). Article III

denies the District Court the power to decide

App. 28

questions that cannot affect the rights of litigants before it, and confines it to resolving live

controversies “admitting of specific relief

through a decree of a conclusive character, as

distinguished from an opinion advising what

the law would be upon a hypothetical state of

facts.” Aetna Life Insurance Co. v. Haworth,

300 U.S. 227, 241, 57 S. Ct. 461, 81 L.Ed. 617

(1937). The case or controversy requirement

continues through all stages of federal judicial

proceedings, trial and appellate, and requires

that parties have a personal stake in the outcome. Lewis, 494 U.S. at 477-478. “This means

that, throughout the litigation, the plaintiff

‘must have suffered, or be threatened with, an

actual injury traceable to the defendant and

likely to be redressed by a favorable judicial

decision.’ ” Spencer, 523 U.S. at 7 (quoting

Lewis, 494 U.S. at 477).

Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009)

(dismissing habeas petition as moot).

In considering the application of the mootness doctrine to this case, we most assuredly do not write upon

a blank slate. Quite the contrary, in the wake of Janus’

sea change in this law regarding the constitutionality

of “agency shop” statutes, numerous courts have been

confronted with the precise scenario presented here: A

Janus-based lawsuit by an employee who was formerly

subjected to compulsory dues deductions, seeking injunctive relief against officials who had abandoned this

“agency shop” practice in light of the Supreme Court’s

ruling. Almost without exception, on these facts, courts

App. 29

have concluded that plaintiffs’ requests for prospective

relief are now moot given the cessation of this practice

that was compelled by the Supreme Court’s decision in

Janus.2

2

See, e.g., Oliver v. Serv. Employees Int’l Union Local 668,

No. CV 19-891, 2019 WL 5964778, at *7 (E.D. Pa. Nov. 12, 2019);

LaSpina v. SEIU Pennsylvania State Council, No. CV 3:18-2018,

2019 WL 4750423, at *9 (M.D. Pa. Sept. 30, 2019); Mayer v. Wallingford-Swarthmore Sch. Dist., No. CV 18-4146, 2019 WL

4674397, at *3 (E.D. Pa. Sept. 24, 2019); Diamond v. Pennsylvania State Educ. Ass’n, 399 F. Supp. 3d 361, 383 (W.D. Pa. July 8,

2019) (citing Hartnett v. Pa. State Educ. Ass’n, 390 F. Supp. 3d

592 (M.D. Pa. May 17, 2019) (finding comparable claims for declaratory and injunctive relief moot post-Janus because the

“[p]laintiffs face no realistic possibility that they will be subject to

the unlawful collection of ‘fair share’ fees”)); Cook v. Brown, 364

F. Supp. 3d 1184, 1189 (D. Or. 2019) (finding a request for injunctive relief post-Janus moot because the union had already stopped

collecting fair-share fees and thus there was “no live controversy

. . . necessitating injunctive relief ”); Lamberty v. Conn. State Police Union, No. 3:15-cv-378, 2018 WL 5115559, at *9 (D. Conn.

Oct. 19, 2018) (explaining that Janus mooted a challenge to the

constitutionality of agency fees because “there is nothing for [the

court] to order [the d]efendants to do now”); Yohn v. Cal. Teachers

Ass’n, Case No. SACV 17-202-JLS-DFM, 2018 WL 5264076 (C.D.

Cal. Sept. 28, 2018) (granting the union’s motion to dismiss on

mootness grounds after the union complied with Janus); Danielson v. Inslee, 345 F. Supp. 3d 1336, 1339-40 (W.D. Wash. 2018)

(finding that Janus mooted a controversy when the State of Washington stopped collecting agency fees post-Janus); Smith v.

Bieker, Case No. 18-cv-05472-VC, 2019 WL 2476679, at *1 (N.D.

Cal. June 13, 2019) (finding similar claims moot because the State

did not plan to enforce the unconstitutional statute in light of Janus). See also Mayer v. Wallingford-Swarthmore Sch. Dist., No.

CV 18-4146, 2019 WL 4674397, at *3 (E.D. Pa. Sept. 24, 2019);

Molina v. Pennsylvania Soc. Serv. Union, 392 F. Supp. 3d 469,

471 (M.D. Pa. 2019); Hamidi v. Serv. Employees Int’l Union Local

1000, 386 F. Supp. 3d 1289, 1295 (E.D. Cal. 2019); Akers v.

App. 30

For their part, the plaintiffs attempt to resist this

rising tide of case law by arguing the voluntary cessation doctrine, which holds that voluntary abandonment of an unlawful practice does not automatically

render a dispute moot. The difficulty with this assertion in the instant case is twofold: First, virtually every

court which has considered this argument following

the Supreme Court’s decision in Janus has rejected it.3

Second, this argument fails to take into account the

unique factual context of this case. This is not a situation in which the voluntary cessation doctrine applies

because a litigant has made a brief and temporary tactical legal retreat on an uncertain legal landscape.

Quite the contrary, the United States Supreme Court

has now clearly and definitively changed that legal

landscape and the actions of the defendants simply

reflect compliance with the Court’s unmistakable

mandate. As one court has aptly observed when discounting a similar voluntary cessation argument:

Janus . . . represents a significant legal shift

because it explicitly overruled Abood and held

that the collection of fair-share fees was unconstitutional. “The law of the land thus has

changed and there no longer is a legal dispute

as to whether public sector unions can collect agency fees.” Complying with a Supreme

Maryland State Educ. Ass’n, 376 F. Supp. 3d 563, 572 (D. Md.

2019); Lee v. Ohio Educ. Ass’n, 366 F. Supp. 3d 980 (N.D. Ohio

2019).

3

See cases cited in footnote 3 supra.

App. 31

Court decision [therefore] cannot be considered “voluntary cessation.”

Diamond v. Pennsylvania State Educ. Ass’n, 399

F. Supp. 3d 361, 387 (W.D. Pa. 2019) (citations omitted).

We agree. Finding that this paradigm shift in the

law, and the parties’ compliance with their newly defined legal obligations eliminates the need for prospective relief, and further concluding that complying with

a Supreme Court decision cannot be characterized as

voluntary cessation, we submit that these requests for

prospective relief from the defendants are now moot

and should be dismissed.

C. The Plaintiffs’ Count I Damages Claims

Also Fail as a Matter of Law.

As we construe the plaintiffs’ complaint, the plaintiffs also seek damages from the defendants as a result

of these alleged Constitutional infractions. However, in

our view, on the unique facts of this case, the plaintiffs’

Count I claims for damages fail. As we have noted,

Count I brings constitutional free speech claims based

upon the Supreme Court’s decision in Janus, alleging

that the conduct of union officials and the county defendants violated their constitutional rights under the

First and Fourteenth Amendments through compulsory dues payments. (Doc. 1 ¶¶ 36-51).

There are two profound problems with these damages claims. First, they ignore the legal and factual

backdrop of this case. Prior to June of 2018, the

App. 32

practice engaged in by the county and the union of

seeking dues deductions from these employees was

commonplace, expressly authorized by statute, and

constitutionally endorsed by the United States Supreme Court. Abood v. Detroit Bd. of Ed., 431 U.S. 209,

97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977). Thus, prior to

the fundamental sea change in the law resulting from

the ruling in Janus v. Am. Fed’n of State, Cty., & Mun.

Employees, Council 31, 138 S. Ct. 2448, 2459-60, 201

L. Ed. 2d 924 (2018), the defendants had no reason the

question the lawfulness of their conduct. Moreover,

once the legal paradigm shifted in this profound way,

within a matter of months the defendants had accepted the plaintiffs’ resignations from the union,

halted their dues deductions, and repaid the dues

that had been deducted while the resignations requests were pending, with interest.

These damages claims also fail to acknowledge an

immutable legal fact, the existence of a good faith defense when parties act in reliance upon what was thenexisting law. On this score, we note that: “every federal

appellate court to have decided the question has held

that, while a private party acting under color of state

law does not enjoy qualified immunity from suit, it is

entitled to raise a good-faith defense to liability under

section 1983.” Janus v. Am. Fed’n of State, Cty. & Mun.

Employees, Council 31; AFL-CIO, 942 F.3d 352, 362

(7th Cir. 2019) citing Clement v. City of Glendale, 518

F.3d 1090, 1096-97 (9th Cir. 2008); Pinsky v. Duncan,

79 F.3d 306, 311-12 (2d Cir. 1996); Vector Research,

Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692,

App. 33

698-99 (6th Cir. 1996); Jordan v. Fox, Rothschild,

O’Brien & Frankel, 20 F.3d 1250, 1275-78 (3d Cir.

1994); Wyatt v. Cole, 994 F.2d 1113, 1118-21 (5th Cir.

1993) (“Wyatt II”). As the United States Court of Appeals for the Third Circuit has observed when considering this issue in the context of § 1983 civil rights

litigation: “we believe in accord with the [other] court

of appeals . . . that a good faith defense is available[.]”

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d

1250, 1277 (3d Cir. 1994).

In the instant case, these legal tenets combine to

defeat the damages claim set forth in Count I of the

plaintiffs’ complaint and the First Amendment claims

grounded directly upon the Janus decision. Here, the

dues deductions that were undertaken by the defendants were plainly done in good faith, in reliance on a

state statute which expressly authorized this practice

and in accordance with the then existing Supreme

Court precedent which constitutionally endorsed such

union dues deductions. Furthermore, when the Supreme Court’s Janus decision fundamentally altered

this legal landscape, the defendants then halted the

dues deductions for those employees who chose to

withdraw from the union and refunded dues paid while

their resignation requests were pending, with interest.

On these facts, we conclude that it is evident that a

defense of good faith reliance upon then existing law

applies here and bars these § 1983 damages claims.

We are not alone in reaching this conclusion. Quite

the contrary, on remand from the Supreme Court, the

court of appeals in Janus v. Am. Fed’n of State, Cty. &

App. 34

Mun. Employees, Council 31; AFL-CIO, 942 F.3d 352,

364 (7th Cir. 2019) found that the union was entitled

to a good faith defense to liability for damages based

upon its reliance on what was previously settled law.

In reaching this result, the court of appeals observed

that there is an emerging legal consensus on this question, stating that “every district court that has considered the precise question before us—whether there is

a good-faith defense to liability for payments collected

before Janus II—has answered it in the affirmative.”

Id. (citing Hamidi v. SEIU Local 1000, 2019 WL

5536324 (E.D. Cal. Oct. 25, 2019)); LaSpina v. SEIU

Pennsylvania State Council, 2019 WL 4750423 (M.D.

Pa. Sept. 30, 2019); Casanova v. International Ass’n of

Machinists, Local 701, No. 1:19-cv-00428, Dkt. #22

(N.D. Ill. Sept. 11, 2019); Allen v. Santa Clara Cty. Correctional Peace Officers Ass’n, 400 F. Supp. 3d 998,

2019 WL 4302744 (E.D. Cal. Sept. 11, 2019); Ogle v.

Ohio Civil Serv. Emp. Ass’n, 397 F. Supp. 3d 1076 (S.D.

Ohio 2019), appeal pending, No. 19-3701 (6th Cir.); Diamond v. Pennsylvania State Educ. Ass’n, 399 F. Supp.

3d 361, 2019 WL 2929875 (W.D. Pa. July 8, 2019), appeal pending, No. 19-2812 (3d Cir.); Hernandez v. AFSCME California, 386 F. Supp. 3d 1300 (E.D. Cal.

2019); Doughty v. State Employee’s Ass’n, No. 1:19-cv00053-PB (D.N.H. May 30, 2019), appeal pending, No.

19-1636 (1st Cir.); Babb v. California Teachers Ass’n,

378 F. Supp. 3d 857 (C.D. Cal. 2019); Wholean v.

CSEA SEIU Local 2001, 2019 WL 1873021 (D. Conn.

Apr. 26, 2019), appeal pending, No. 19-1563 (2d Cir.);

Akers v. Maryland Educ. Ass’n, 376 F. Supp. 3d 563

(D. Md. 2019), appeal pending, No. 19-1524 (4th Cir.);

App. 35

Bermudez v. SEIU Local 521, 2019 WL 1615414 (N.D.

Cal. Apr. 16, 2019); Lee v. Ohio Educ. Ass’n, 366

F. Supp. 3d 980 (N.D. Ohio 2019), appeal pending, No.

19-3250 (6th Cir.); Hough v. SEIU Local 521, 2019 WL

1274528 (N.D. Cal. Mar. 20, 2019), amended, 2019 WL

1785414 (N.D. Cal. Apr. 16, 2019), appeal pending, No.

19-15792 (9th Cir.); Crockett v. NEA-Alaska, 367

F. Supp. 3d 996 (D. Alaska 2019), appeal pending, No.

19-35299 (9th Cir.); Carey v. Inslee, 364 F. Supp. 3d

1220 (W.D. Wash. 2019), appeal pending, No. 19-35290

(9th Cir.); Cook v. Brown, 364 F. Supp. 3d 1184 (D. Or.

2019), appeal pending, No. 19-35191 (9th Cir.); Danielson v. AFSCME, Council 28, 340 F. Supp. 3d 1083

(W.D. Wash. 2018), appeal pending, No. 18-36087 (9th

Cir.); see also Mooney v. Illinois Educ. Ass’n, 942 F.3d

368, 369 (7th Cir. 2019).

Given the uncontested evidence revealing that the

defendants conducted these dues deductions in accordance with then-existing law, and then conformed their

conduct to the altered legal terrain following the Supreme Court’s decision in Janus, it is submitted that

this court should follow the growing legal consensus

finding that the good faith defense applies in this setting and precludes claims for damages on these unique

facts. Accordingly, these damages claims should be dismissed.

App. 36

D. Count II of the Plaintiffs’ Complaint

Fails to State a Claim.

Finally, in Count II of their complaint, the plaintiffs bring a separate First Amendment freedom of association and freedom of speech claim, asserting that

the designation of the local union as the exclusive

bargaining representative unconstitutionally abridged

the plaintiffs’ free speech and association rights by in

some way compelling them to associate with the union

on collective bargaining matters. (Doc. 1 ¶¶ 52-65).

As noted by the defense, the difficulty with this

particular claim is that in Minnesota State Bd. for

Cmty. Colleges v. Knight, 465 U.S. 271, 291, 104 S. Ct.

1058, 1069, 79 L. Ed. 2d 299 (1984), the United States

Supreme Court rejected First Amendment and Equal

Protection challenges to similar exclusive representation laws in the public employment context holding

that such laws do not violate First Amendment associational principles and finding that: “The state has a legitimate interest in ensuring that its public employers

hear one, and only one, voice presenting the majority

view of its professional employees on employment-related policy questions, whatever other advice they may

receive on those questions.” Id.

Given what we construe as the Supreme Court’s

longstanding teaching in Knight, the plaintiffs’ First

Amendment associational claims challenging the union’s role as the exclusive labor representative of these

public employees would fail unless the Court’s recent

decision in Janus has somehow abrogated its holding

App. 37

in Knight. Viewed in isolation, this is a difficult argument to sustain. The Supreme Court’s decision in Janus clearly shows that the Court understood its ability

to expressly overrule prior precedent since that is precisely what the Court did when it set aside its prior

decision in Abood. It seems unlikely that the Court,

having expressly overruled its prior decision in Abood,

would have been reticent to expressly address its holding in Knight, if that had been the Court’s intent.

Moreover, while the Court’s decision in Janus recognized First Amendment tensions that may arise due to

the activities of public employee unions, in the final

analysis the Court did not to make any sweeping declaration striking down these exclusive bargaining

agent arrangements. Quite the contrary, the Court eschewed any such broad declarations, stating instead

that: “States can keep their labor-relations systems exactly as they are—only they cannot force nonmembers

to subsidize public-sector unions.” Janus v. Am. Fed’n

of State, Cty., & Mun. Employees, Council 31, 138 S. Ct.

2448, 2485, n. 27, 201 L. Ed. 2d 924 (2018). Since exclusive bargaining representative status is a settled

feature of state labor-relations systems, the Court’s assertion that “States can keep their labor-relations systems exactly as they are”, simply cannot be read as a

constitutional rebuke of this practice.

And, in fact, those courts which have considered

this issue generally agree that the Court’s decision in

Janus does not abrogate or undermine its prior holding

in Knight. Mentele v. Inslee, 916 F.3d 783, 790 (9th

Cir.), cert. denied sub nom. Miller v. Inslee, 140 S. Ct.

App. 38

114, 205 L.Ed.2d 37 (2019). As one court has recently

observed:

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

App. 39

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.”).

Oliver v. Serv. Employees Int’l Union Local 668, No. CV

19-891, 2019 WL 5963226, at *5 (E.D. Pa. Nov. 12,

2019). This conclusion is echoed in an emerging body

of case law, which consistently declines invitations to

set aside public employee unions’ exclusive representation status based upon an expansive reading of Janus.4 We find the rationale of these cases compelling

and persuasive. Accordingly, given the current state of

the law, the plaintiffs’ Count II claims, which entail a

broadly framed First Amendment attack upon exclusive public union representation of workers, fails, and

this claim should be dismissed.5

4

See e.g., Sweet v. California Ass’n of Psychiatric Technicians, No. 2:19-CV-00349-JAM-AC, 2019 WL 4054105, at *3 (E.D.

Cal. Aug. 28, 2019); Grossman v. Hawaii Gov’t Employees Ass’n/

AFSCME Local 152, 382 F. Supp. 3d 1088 (D. Haw. 2019);

Thompson v. Marietta Educ. Ass’n, 371 F. Supp. 3d 431 (S.D.

Ohio 2019); Reisman v. Associated Faculties of Univ. of Maine,

356 F. Supp. 3d 173, 178 (D. Me. 2018), aff ’d, 939 F.3d 409 (1st

Cir. 2019); Uradnik v. Inter Faculty Org., No. CV 18-1895

(PAM/LIB), 2018 WL 4654751, at *2 (D. Minn. Sept. 27, 2018).

5

We note that Count II of this complaint may also tangentially implicate defendants beyond the union and the county,

since the members of the Pennsylvania Labor Relations Board,

(PLRB), who are also named as defendants in this lawsuit, are

alleged to have certified the local as the exclusive representative

of the bargaining unit in this case. We have already issued a Report and Recommendation recommending the dismissal of these

App. 40

Finally, having found that the plaintiffs’ claims

fail as a matter of law, it follows that the plaintiffs’ motion for summary judgment, (Doc. 43), also fails and

should be denied.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants’ motions to dismiss

which have been deemed motions for summary judgment, (Doc. 25 and 27), be GRANTED and the plaintiffs’ motion for summary judgment, (Doc. 43) be

DENIED.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s

proposed findings, recommendations or report

addressing a motion or matter described in 28

U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or

a habeas corpus petition within fourteen (14)

days after being served with a copy thereof.

Such party shall file with the clerk of court,

and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed

state agency defendants. (Doc. 55.) However, to the extent that

the plaintiffs believe that this exclusive bargaining agent certification by the PLRB provides independent grounds for a cause of

action against these state officials, we believe that the foregoing

analysis refutes such a claim and would also compel dismissal of

these state agency officials.

App. 41

findings, recommendations or report to which

objection is made and the basis for such objections. The briefing requirements set forth in

Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is

made and may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge. The

judge, however, need conduct a new hearing

only in his or her discretion or where required

by law, and may consider the record developed

before the magistrate judge, making his or her

own determination on the basis of that record.

The judge may also receive further evidence,

recall witnesses or recommit the matter to the

magistrate judge with instructions.

Submitted this 5th day of December 2019.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

App. 42

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HOLLIE ADAMS, et al., : Civil No. 1:19-CV-336

:

Plaintiffs,

:

v.

:

:

TEAMSTERS LOCAL

:

UNION 429, et al.,

:

Defendants.

: Judge Sylvia H. Rambo

MEMORANDUM

(Filed Mar. 31, 2020)

Before the court is a report and recommendation

(“R&R”) of Magistrate Judge Carlson (Doc. 55) in

which he recommends that the motion for summary

judgment filed by Defendants James M. Darby, Albert

Mezzaroba, Robert H. Shoop, Jr., and Attorney General

Josh Shapiro (collectively, “the Commonwealth Defendants”) (Doc. 26) be granted in its entirety. Plaintiffs have timely filed objections to the R&R. (Doc. 57.)

For the reasons set forth below, the R&R will be

adopted.

I.

BACKGROUND

Hollie Adams, Jody Weaber, Karen Unger, and

Chris Felker (collectively, “Plaintiffs”) are Lebanon

County employees who either joined Teamsters Union

Local 429 (“the Union”) or signed an agreement to pay

App. 43

agency fees1 as nonmembers of the Union, due to a set

of Pennsylvania statutory schemes and a collective

bargaining agreement (“CBA”). Years after Plaintiffs

came to their arrangements with the Union, however,

necessary parts of the CBA and governing statutes

were rendered unconstitutional by Janus v. AFSCME,

138 S. Ct. 2448 (2018). Shortly after the Supreme

Court decided Janus, the plaintiffs who were members

of the Union filed requests to be withdrawn from it,

while those who were paying agency fees as nonmembers submitted requests that agency fees cease being

deducted from their wages. Some Plaintiffs were immediately granted their requests and others were denied due to a maintenance of membership provision in

the CBA.

On February 27, 2019, Plaintiffs filed suit against

Lebanon County, the Union, and the Commonwealth

Defendants. (Doc. 1.) Plaintiffs brought two claims.

Count 1 is a Section 1983 claim alleging that “Defendants Lebanon County and Teamsters” violated Plaintiff ’s first amendment rights by compelling them to

join the Union or pay agency fees through an unconstitutional scheme. (Doc. 1, p. 10 (emphasis deleted).)

Count 2 is a Section 1983 claim brought against the

Commonwealth Defendants, asserting that the Pennsylvania statutes authorizing unions to operate as

1

Agency fees are charges made to non-union members,

which are lower than fees paid by union members. These were

permitted under pre-Janus case law.

App. 44

exclusive representatives are unconstitutional. (Doc. 1,

p. 14.)

Shortly after Plaintiffs filed suit, Defendants took

actions to: (1) ensure all Plaintiffs were deemed nonmembers of the Union; (2) cease dues deductions from

Plaintiffs’ wages; and (3) refund Plaintiffs all dues deducted from their wages plus interest.

On May 20, 2019, the Commonwealth Defendants

filed a motion to dismiss for lack of jurisdiction and

failure to state a claim. (Doc. 26.) The court proceeded

to convert the motion to one for summary judgment.

(Doc. 35.) The parties then briefed the motion, which

was referred to Magistrate Judge Carlson.

On December 3, 2019, Magistrate Judge Carlson

issued an R&R recommending that the motion be

granted in full, dismissing all claims against the Commonwealth Defendants. (Doc. 55, p. 20.) The R&R’s

logic is that: (1) the requests for injunctive relief

against the Commonwealth Defendants were moot because Plaintiffs were removed from the Union, were

no longer having dues deducted, and had dues reimbursed; and (2) any claims for damages against the

Commonwealth Defendants were barred by the Eleventh Amendment.

On December 17, 2019, Plaintiffs submitted their

objections to the R&R. (Doc. 57.) These matters are

now fully briefed and thus ripe for review.

App. 45

II.

STANDARD OF REVIEW

When objections are timely filed to the report and

recommendation of a magistrate judge, the district

court must review de novo those portions of the report

to which objections are made. 28 U.S.C. § 636(b)(1);

Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is

committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the

magistrate judge to the extent it deems proper. Rieder

v. Apfel, 115 F. Supp. 496, 499 (M.D. Pa. 2000) (citing

United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is made, the court should, as

a matter of good practice, “satisfy itself that there is no

clear error on the face of the record in order to accept

the recommendation.” Fed. R. Civ. P. 72(b), advisory

committee notes; see also Univac Dental Co. v. Dentsply

Intern., Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa. 2010)

(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to

every report and recommendation)). Nonetheless,

whether timely objections are made or not, the district

court may accept, not accept, or modify, in whole or in

part, the findings or recommendations made by the

magistrate judge. 28 U.S.C. § 636(b)(1); L.R. 72.31.

App. 46

III.

DISCUSSION

Plaintiffs raise three objections to the R&R, two of

which the court will address together. In their first and

third objections, Plaintiffs argue that the R&R improperly issued advisory opinions concerning Count 1 and

sovereign immunity because Count 1 was not pleaded

against the Commonwealth Defendants and Plaintiffs

did not request damages from them. In their second

objection, Plaintiffs contend that the R&R did not discuss the substance of Plaintiffs’ exclusive representation claim against the Commonwealth Defendants.

Plaintiffs acknowledge, however, that the other R&R

issued by Magistrate Judge Carlson in this case both

substantively addressed the exclusive representation

claim and stated that it may implicate the Commonwealth Defendants. Plaintiffs request that the court

address the issue to preserve their right to appeal. As

the court will explain below, Plaintiffs’ objections fail

to demonstrate that the R&R erred in recommending

that the Commonwealth Defendants’ motion be

granted.

Beginning with Plaintiffs’ first and third objections, the court has thoroughly reviewed Plaintiffs’

complaint. While their claim against the entirety of the

Commonwealth Defendants—who have exercised distinct actions relevant to this case—is rather unclear,

the court agrees that Plaintiffs have not asserted a

claim against the Commonwealth Defendants in

Count 1. However, because Plaintiffs “do not disagree

with the Report’s statement of the law of immunity

App. 47

and the Eleventh Amendment” (Doc. 57, p. 5),2 the only

implication of their objection is that the analysis is

dicta. While the court will not specifically reference

either Count 1 in its order, neither of these objections

affect the court’s granting of the Commonwealth Defendants’ motion nor the adoption of the R&R.

Turning to Plaintiffs’ second objection, the court

agrees that this R&R did not directly address Plaintiffs

complaint that it is allegedly unconstitutional for unions to operate as exclusive representatives, however,

the corresponding R&R addresses it at length. The

court finds that the R&R’s analysis of the law and

Plaintiffs’ claim is correct, as several courts have held

that, even in light of Janus, unions may constitutionally operate as exclusive representatives. (See Doc. 56,

pp. 23-26.)3 Plaintiff ’s second objection will therefore

be overruled.

2

Plaintiffs argue, in a footnote, that they have certain objections to the R&R’s analysis in a separate brief, but Local Rule

7.8(a) states that “[n]o brief may incorporate by reference all or

any portion of any other brief.”

3

Plaintiffs also fail to include, in the brief supporting their

objection to this R&R, any legal basis for why their exclusive representation claim should go forward. Instead, they merely violate

Local Rule 7.8(a) a second time by incorporating other briefing by

reference.

App. 48

IV.

CONCLUSION

For the reasons outlined above, the court will

adopt the R&R by granting the Commonwealth Defendants’ motion for summary judgment and dismissing all claims against them with prejudice.

/s/ Sylvia H. Rambo

SYLVIA H. RAMBO

UNITED STATES DISTRICT JUDGE

Dated: March 31, 2020

App. 49

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HOLLIE ADAMS, et al., : Civil No. 1:19-CV-336

:

Plaintiffs,

:

v.

:

:

TEAMSTERS LOCAL

:

UNION 429, et al.,

:

Defendants.

: Judge Sylvia H. Rambo

ORDER

(Filed Mar. 31, 2020)

Before the court is a report and recommendation

(“R&R”) of Magistrate Judge Carlson (Doc. 55) in

which he recommends that the motion for summary

judgment filed by Defendants James M. Darby, Albert

Mezzaroba, Robert H. Shoop, Jr., and Attorney General

Josh Shapiro (collectively, “the Commonwealth Defendants”) (Doc. 26) be granted in its entirety. For the

reasons explained in the accompanying memorandum,

IT IS HEREBY ORDERED as follows:

1)

The R&R is ADOPTED;

2)

The Commonwealth Defendants’ motion for

summary judgment is GRANTED; and

3)

All claims against the Commonwealth Defendants are DISMISSED.

App. 50

/s/ Sylvia H. Rambo

SYLVIA H. RAMBO

UNITED STATES DISTRICT JUDGE

Dated: March 31, 2020

App. 51

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HOLLIE ADAMS, et al., : Civil No. 1:19-CV-336

:

Plaintiffs,

:

v.

:

:

TEAMSTERS LOCAL

:

UNION 429, et al.,

:

Defendants.

: Judge Sylvia H. Rambo

ORDER

(Filed Mar. 31, 2020)

Before the court is Magistrate Judge Carlson’s report and recommendation (“R&R”) (Doc. 56) regarding

three motions for summary judgment filed by: (1) Defendant County of Lebanon (Doc. 25); (2) Defendant

Teamster Union Local 429 (Doc. 27); and (3) Plaintiffs

Hollie Adams, Jody Weaber, Karen Unger, and Chris

Felker (Doc. 43). Plaintiffs have timely submitted objections to the R&R, which the court has thoroughly

reviewed. (Doc. 58.)

Viewing the objections globally, the court finds

that Plaintiffs’ arguments do not rely upon law that is

binding on this court. Instead, it appears that Plaintiffs are preparing to file an appeal that they hope will

result in changes to the law. For example, Plaintiffs effectively ask the court to predict, based on dicta, that

the Supreme Court intends to overturn Minnesota

State Board for Community Colleges v. Knight, 465 U.S.

271 (1984)—a Supreme Court case that has not been

App. 52

overturned and which explicitly held unions are

constitutionally permitted to operate as exclusive

representatives—and thus rule that unions are constitutionally barred from operating as the exclusive

representative of a group of employees. Additionally,

Plaintiffs argue the good-faith defense should not apply to Section 1983 claims against private entities and

then fail to cite or distinguish any authority discussing

the good-faith defense. The court thus finds none of

these objections accurately characterize the law binding on this court. Instead, the court agrees with the

R&R’s description of the governing law and its applicability to Plaintiffs’ claims.

As such, IT IS HEREBY ORDERED as follows:

1)

The R&R is ADOPTED in in its entirety;.

2)

The motions for summary judgment filed by

Defendants County of Lebanon and Teamster

Local Union 429 are GRANTED, and Plaintiffs’ claims against them are DISMISSED,

WITH PREJUDICE;

3)

The motion for summary judgment filed by

Plaintiffs is DENIED; and

4)

The Clerk of Court is DIRECTED to close

this case.

/s/ Sylvia H. Rambo

SYLVIA H. RAMBO

UNITED STATES DISTRICT JUDGE

Dated: March 31, 2020