Creed v. Alaska State Emps. Association/AFSCME Local 52, No. 3:20-cv-0065-HRH

472 F.Supp.3d 518

Linda CREED and Tyler Riberio, Plaintiffs,

v.ALASKA STATE EMPLOYEES ASSOCIATION/AFSCME LOCAL 52 and Kelly Tshibaka, in her official capacity as Commissioner of Administration for the State of Alaska, Defendants.

No. 3:20-cv-0065-HRH

United States District Court, D. Alaska.

Signed July 14, 2020

Filed July 15, 2020

Sonja Kathleen Redmond, Law Office of Sonja Redmond, Soldotna, AK, Daniel Robert Suhr, Pro Hac Vice, Liberty Justice Center, Chicago, IL, for Plaintiffs

Molly C. Brown, Dillon & Findley, P.C., Anchorage, AK, Matthew J. Murray, Pro Hac Vice, Scott A. Kronland, Pro Hac Vice, Stefanie L. Wilson, Pro Hac Vice, Altshuler Berzon LLP, San Francisco, CA, for Defendant Alaska State Employees Association/AFSCME Local 52.

Kevin Andrew Higgins, Law Office of Kevin Higgins, Juneau, AK, John Michael Connolly, Pro Hac Vice, Steven Christopher Begakis, Pro Hac Vice, William S. Consovoy, Pro Hac Vice, Consovoy McCarthy PLLC, Arlington, VA, for Defendant Kelly Tshibaka.

ORDER

Motion to Dismiss; Cross-Motion for Summary Judgment

H. Russel Holland, United States District Judge Defendant ASEA moves to dismiss plaintiffs' complaint.¹ This motion is opposed by plaintiffs² and plaintiffs cross-move for summary judgment.³ Defendant Tshibaka does not oppose plaintiffs cross-motion but does oppose ASEA's motion to dismiss.⁴ Defendant ASEA opposes plaintiffs' cross-motion.⁵ Oral argument was not requested and is not deemed necessary.

Facts

Plaintiffs are Linda Creed and Tyler Riberio. Defendants are the Alaska State Employees Association/AFSCME Local 51 ("ASEA") and Kelly Tshibaka, in her official capacity as the Commissioner of Administration for the State of Alaska.

Plaintiffs are Alaska state employees. Alaska law makes union membership for state employees voluntary. See AS 23.40.080 ("[p]ublic employees may self-organize and form, join, or assist an organization to bargain collectively through representatives of their own choosing, and engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection"). "Membership" in ASEA "is not a condition of employment, and employees must sign [a] form if they wish to join the union." State of Alaska v. Alaska State Employees Association, Case No. 3AN-19-09971CI, Temporary Restraining Order at 3, 2019 WL 7597328 (Oct. 3, 2019).⁶ AS 23.40.220 provides that

[u]pon written authorization of a public employee within a bargaining unit, the public employer shall deduct from the payroll of the public employee the monthly amount of dues, fees, and other employee benefits as certified by the secretary of the exclusive bargaining representative and shall deliver it to the chief fiscal officer of the exclusive bargaining representative.

ASEA's collective bargaining agreement with the state provides:

Upon receipt by the Employer of an Authorization for Payroll Deduction of Union Dues/Fees dated and executed by the bargaining unit member which includes the bargaining unit member's employee ID number, the Employer shall each pay period deduct from the bargaining unit member's wages the amount of the Union membership dues owed for that pay period.^{[7 ]}

Creed alleges that she joined ASEA on July 19, 2017.⁸ Creed alleges that at the time she joined the union, "she was forced to either join and pay dues or not join and pay fees, so she chose to join."⁹ Riberio alleges that he joined ASEA on February 12, 2018.¹⁰ Riberio alleges that at the time he joined the union, "he believed that membership would provide value to him and his colleagues."¹¹

The Union Membership Card/Payroll Deduction Authorization that plaintiffs signed provided:

I hereby apply for or commit to maintain membership in ASEA/AFSCME Local 52 and I agree to abide by its Constitution and Bylaws. By this application, I authorize ASEA/AFSCME Local 52 and its successor or assign ... to act as my exclusive bargaining representative for purposes of collective bargaining with respect to wages, hours and other terms and conditions of employment with my Employer.

Effective immediately, I hereby voluntarily authorize and direct my Employer to deduct from my pay each period, regardless of whether I am or remain a member of ASEA, the amount of dues certified by ASEA, and as they may be adjusted periodically by ASEA. I further authorize my Employer to remit such amount monthly to the ASEA. My decision to pay my dues by way of payroll deduction, as opposed to other means of payment, is voluntary and not a condition of my employment.

This voluntary authorization and assignment shall be irrevocable, regardless of whether I am or remain a member of ASEA, for a period of one year from the date of execution or until the termination date of the collective bargaining agreement ... between the Employer and the Union, whichever occurs sooner, and for year to year thereafter, unless I give the Employer and the Union written notice of revocation not less than ten (10) days and not more than twenty (20) before the end of any yearly period.^[12]

Both plaintiffs also checked the box on the form that read: "Yes, I choose to be a union member."¹³

On June 27, 2018, the Supreme Court issued its decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). Janus involved a challenge by an Illinois state employee to a state statute that authorized the imposition of agency fees for nonunion members. Id. at 2461. The Court held that "States and public-sector unions may no longer extract agency fees from nonconsenting employees" because "[t]his procedure violates the First Amendment...." Id. at 2486. The Court stated that "[n]either an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay." Id.

More than one year later, on July 31, 2019, Riberio "wrote to the union ... to resign his position as a union steward and to cancel his membership and dues authorization[.]"¹⁴ Riberio alleges that he did so because "[h]e learned through experience within the union that its priorities and values did not comport with his views on important topics."¹⁵

On August 27, 2019, the Attorney General for the State of Alaska opined "that Janus requires a significant change to the State's current" union-related dues and fees "practice in order to protect state employees' First Amendment rights."¹⁶ The Attorney General opined that "the State must revamp its payroll deduction process for union dues and fees to ensure that it does not deduct funds from an employee's paycheck unless it has ‘clear and compelling evidence’ of the employee's consent."¹⁷ The Attorney General opined that " Janus did not distinguish between members and non-members of a union" and "[t]hus the State has no more authority to deduct union dues from one employee's paycheck than it has to deduct some lesser fee or voluntary non-dues from another's."¹⁸ The Attorney General recommended that the State have employees provide their consent to join the union or pay fees directly to the State, rather than providing this consent to the union.¹⁹ This would, according to the Attorney General, ensure "that an employee's consent to payroll deductions for union dues and fees is knowing, intelligent, and voluntary."²⁰

Creed alleges that the day after the Attorney General's opinion was released, she "wrote to ASEA to cancel her [union] membership and dues authorization[.]"²¹ She alleges that ASEA advised her "that she was obligated to continue paying dues until her opt-out window ten months in the future."²²

Riberio alleges that on August 28, 2019, he "wrote a letter to Commissioner Tshibaka's agency to end continued deduction of union dues from his paycheck" and that he included "a copy of his letter of July 31, 2019."²³ Riberio also alleges that on September 20, 2019, he "completed a standard State of Alaska payroll form to cease his union dues deductions."²⁴

In September 2019, the State, pursuant to Administrative Order No. 312, stopped dues deductions for state employees, including plaintiffs. Administrative Order No. 312 was "issue[d] to establish a procedure that ensures that the State of Alaska honors the First Amendment free speech rights of state employees to choose whether or not to pay union dues and fees through payroll deduction."²⁵ The procedure set out in Administrative Order No. 312 called for employees to provide their consent for the deduction of union dues or fees directly to the State and gave employees the right to revoke their consent at any time.²⁶ Legal action between the State and ASEA over Administrative Order No. 312 ensued, and on October 3, 2019, a state court issued a temporary restraining order which required "the reinstatement of cancelled dues authorizations, including those of [p]laintiffs...."²⁷

Creed alleges that "[o]n October 7, 2019, Defendant Commissioner Tshibaka wrote to [her] to inform her that pursuant to the state court's order, [Tshibaka] was reinstating the dues deduction from Creed's paychecks."²⁸ Creed alleges that "[t]he opt-out window for [her] pursuant to her dues checkoff authorization[ ] will not arise until July 2020."²⁹ ASEA contends that Creed's opt-out window began on June 30, 2020 and Jake Metcalfe, the Executive Director of ASEA, avers that "ASEA will consider this lawsuit to be a request to end her deductions when that window period begins, and ASEA will instruct the Alaska Department of Administration to end Plaintiff Creed's dues deductions as of June 30, 2020."³⁰

Riberio alleges that "[i]n January 2020, which was during the resignation period prescribed in the dues checkoff authorization he signed, [he] sent a letter resigning his membership from the union. Defendant ASEA executed his opt-out and the State stopped withholding dues from his paycheck at the new pay-period."³¹

On March 16, 2020, plaintiffs...