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March 5, 1992


The opinion of the court was delivered by: INGRAM

 Plaintiffs' motion for summary judgment and motion to strike came before the court on October 1, 1991. Plaintiffs' motion for summary judgment is GRANTED in part and DENIED in part as set forth below and their motion to strike is DENIED.


 This action involves a challenge by ten plaintiffs n.1 [Footnote Omitted] to the constitutionality of the procedural scheme used by Local 715, Service Employees International Union, AFL-CIO ("Union") and the County of Santa Clara ("County") for the calculation and collection of fair-share fees (a.k.a. "agency" or "service" fees) from nonmembers in light of Lehnert v. Ferris Faculty Ass'n, 500 U.S. , 111 S. Ct. 1950, 1960-61, 114 L. Ed. 2d 572 (1991), Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986), and Grunwald v. San Bernardino City Unified School Dist., 917 F.2d 1223 (9th Cir. 1990).

 Under the above authority, union collection of fair-share fees from nonmembers is consistent with the first and fourteenth amendments if the following three requirements are satisfied:

 1) The union must provide nonmembers with an audited financial statement that identifies the major categories of expenses, and divides them into chargeable and nonchargeable expenses;

 2) The union must provide nonmembers with an opportunity to object to the amount of the fair-share fee sought, and any amount reasonably in dispute must be escrowed; and

 3) Prompt arbitration must be provided to resolve any objection over the amount of the fair-share fee.

 The Supreme Court has described the balance sought between the competing interests of labor peace and free speech by stating that "The objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities." Abood v. Detroit Board of Education, 431 U.S. 209, 237, 97 S. Ct. 1782, 1800, 52 L. Ed. 2d 261 (1977).

 This action was filed on November 15, 1990. Plaintiffs are employees of the County and are in a bargaining unit represented by the Union. Acting under color of state law, i.e. the Meyers-Milias-Brown Act, Cal. Gov't Code § 3500, et seq. (West 1989 & Supp. 1992), defendants have entered into a series of collective bargaining agreements ("CBAs") controlling the terms and conditions of plaintiffs' employment. Since February 1984, these CBAs have contained an agency shop provision which required each member of the bargaining unit who is not a member of the Union to pay a fair-share fee to the union in lieu of union membership dues. Each of the plaintiffs assert that they are nonmembers of the Union.

 In addition to their motion for summary judgment, plaintiffs have also filed a motion to strike the first two sentences of the fifth paragraph of Union administrative assistant Liz Bettencourt's declaration.

 Plaintiffs seek declaratory judgment that the past fair-share fee withholdings were unconstitutional, a permanent injunction against future withholdings until the Union implements adequate procedures for the collection of fair-share fees, and an order that defendants pay to the plaintiffs all fees, plus interest, previously withheld.


 I. The Motion to Strike

 Plaintiffs move to strike the first two sentences of the fifth paragraph of the Bettencourt declaration. The sentences state, "As to Archibald and Kemp, both of them are carried on our records as full members. Archibald has been carried as a member since June 16, 1985."

 Plaintiffs argue that the passage constitutes inadmissible hearsay and contravenes the best evidence rule. Fed. R. Evid. 802 and 1002. Defendants respond that "The purpose of the Bettencourt declaration was not to prove the truth of the content of the records, but rather to explain why the Union believes that plaintiffs Archibald and Kemp have no standing to proceed in the matter." In other words, defendants argue that the passage explains the Union's state of mind; it explains why it took the action of withholding membership dues and not fair-share fees.

 The relevant issue is that the Union claims to have withheld dues from Archibald and Kemp. The fact that there is a dispute over whether the Union did so in the proper exercise of its rights does not mean that the evidence is inadmissible. The court finds that the disputed testimony is admissible for the purposes asserted by the Union. Accordingly, the court denies plaintiffs' motion to strike the first two sentences of paragraph five of the Bettencourt declaration.

 II. The Motion for Summary Judgment

 A party can move for summary judgment if the pleadings and supporting material "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 In pursuing this action under 42 U.S.C. § 1983, plaintiffs claim that:

 1) They have not received any notice or financial disclosure since December 29, 1988;

 2) due to this lack of notice, they were deprived of their right to challenge the calculation of the fair-share fee;

 3) the Union may not charge nonmembers different amounts of fair-share fees; and

 4) even if the Union did send its required annual notice in 1990, it was constitutionally inadequate for the following six reasons:

 1. The financial information contained in the notices the Union claims to have sent on December 29, 1988, July 12, 1989, and July 16, 1990 is identical and therefore per se inadequate.

 2. The notice does not adequately break down the major categories of chargeable expenses;

 3. The financial information was not verified by an independent auditor;

 4. The notice lacks adequate financial disclosure of Union affiliates which receive a portion of the fees;

 5. The Union's definition of chargeable activities and method of calculation are vague and overbroad.

 6. Requiring nonmembers to object to the calculation of fair-share fees via certified mail is unconstitutionally burdensome.

 Defendants contend that there are four genuine issues of material fact in dispute which preclude the granting of summary judgment:

 1) the status of plaintiffs Victoria Archibald and David Kemp;

 2) whether notices were sent to plaintiffs in 1989 and 1990;

 3) the adequacy of the notice allegedly sent; and

 4) the amount to be charged for collective bargaining expenses.

 The court will address each of these areas in turn.

 A. The Dispute Over the Status of Plaintiffs Archibald and Kemp is Material and Factual and Cannot Be ...

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