Woods v. Alaska State Emps. Ass'n/AFSCME Local 52

496 F.Supp.3d 1365

Christopher A. WOODS, on behalf of himself and the class he seeks to represent, Plaintiff,

v.ALASKA STATE EMPLOYEES ASS'N/AFSCME LOCAL 52, AFL-CIO; and Kelly Tshibaka, Commissioner of Administration for the State of Alaska, Defendants.

No. 3:20-cv-0074-HRH

United States District Court, D. Alaska.

Signed October 27, 2020

W. James Young, Pro Hac Vice, Alyssa Kristine Hazelwood, Pro Hac Vice, William L. Messenger, Pro Hac Vice, National Right to Work Legal Defense Foundation, Inc., Springfield, VA, for Plaintiff.

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, AFL-CIO(ASEA).

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

H. Russel Holland, United States District Judge

Motion for Summary Judgment

Defendant Alaska State Employees Association/AFSCME Local 52 ("ASEA") moves for summary judgment.¹ This motion is opposed by plaintiff Christopher A. Woods² and defendant Kelly Tshibaka.³ Oral argument was not requested and is not deemed necessary.

Facts ⁴

Plaintiff is employed as a vocational instructor by the State of Alaska. Plaintiff is employed in a bargaining unit that ASEA exclusively represents for purposes of collective bargaining, the General Government Unit ("GGU"). Tshibaka is the Commissioner of the Department of Administration for the State of Alaska and is the state official responsible for the implementation of the State's collective bargaining agreements with ASEA.

Employees of the State of Alaska are not required to become union members as a condition of employment. "Alaska law makes union membership for state employees voluntary." Creed v. Alaska State Employees Association/AFSCME Local 52, 472 F.Supp.3d 518, 520 (D. Alaska 2020).

Employees who sign union membership and dues deduction authorization forms become ASEA members and pay union membership dues to ASEA by deductions from their paychecks. ASEA members have membership rights including, for example, the right to vote in union officer elections, run for union office, participate in the union's internal affairs, be elected or appointed to serve as a union steward, and vote on whether to ratify a collective bargaining agreement applicable to their bargaining unit. ASEA members also have access to members-only benefits, including, for example, discounts on various goods and services including credit cards and rental cars; access to the GGU dental benefit, AFSCME's free college benefit, and no-cost life insurance; and invitations to members-only events. Non-members do not have these membership rights or access to these members-only benefits.

The State and ASEA are currently parties to a collective bargaining agreement effective from July 1, 2019 through June 20, 2022 ("the current CBA"). The current CBA governs the terms and conditions of employment of state employees in the GGU bargaining unit. In accordance with the current CBA, the State deducts union membership dues from the wages of employees who signed a dues deduction authorization form, and remits those dues to ASEA.

Plaintiff first joined ASEA in June 2013. In April 2017, plaintiff volunteered and was elected by the Mat-Su Chapter of ASEA to serve as a Union Steward for that chapter. Plaintiff signed a new union membership and dues deduction authorization form on August 14, 2017. That authorization form provided:

I hereby apply for or commit to maintain my 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.^[5]

Plaintiff also checked the box on the form that read: "Yes, I choose to be a union member."⁶

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.

Before the Supreme Court decided Janus, employees in the GGU bargaining unit who did not choose to join ASEA were required to pay agency fees to ASEA to cover their share of the cost of providing collective bargaining representation. The chargeable portion of agency fees was less than full member dues. At the time, these fees were authorized under Supreme Court precedent and state law ( AS 23.40.110(b)(2) ). Immediately after the Supreme Court issued its decision in Janus, the State stopped collecting and ASEA stopped receiving agency fees from nonmembers.

In September 2019, the State, pursuant to Administrative Order No. 312, stopped dues deductions for state employees, including plaintiff. 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."⁷ 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.⁸ 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 enjoining the State from implementing Administrative Order No. 312 or changing the State's union dues deduction practices.⁹ On November 5, 2019, the state court issued a preliminary injunction incorporating all of the terms of the temporary restraining order. This preliminary injunction remains in place.

Plaintiff's term as a union steward ended on September 30, 2019. On November 26, 2019, plaintiff sent ASEA a written resignation of his membership and objection to dues deductions. Plaintiff was advised that he was not eligible to opt out of paying dues until June 2020.¹⁰ ASEA has treated plaintiff's lawsuit as a revocation request and instructed the State to stop making deductions from plaintiff's wages as of July 25, 2020, the beginning of the revocation window period stated in plaintiff's August 14, 2017 dues authorization form.

On April 1, 2020, plaintiff commenced this action on behalf of himself and others similarly situated. Plaintiff's complaint contains three counts. In Count I, plaintiff asserts a § 1983 claim based on allegations that defendants have violated his First Amendment rights by only allowing him to revoke his dues deduction authorization during one ten-day period each year. In Count II, plaintiff asserts a § 1983 claim based on allegations that defendants have deprived him of his First Amendment rights because they are deducting and collecting union dues without clear and compelling evidence that he has waived his First Amendment rights to free speech and association. In Count III, plaintiff asserts a § 1983 claim based on allegations that the indemnification clause in the current CBA is void and unenforceable as against public policy.

ASEA now moves for summary judgment on all of plaintiff's claims asserted against it and defendant Tshibaka. Although Tshibaka has opposed the instant motion, ASEA contends that judgment should be granted in her favor was well as ASEA's because plaintiff's claims against both defendants fail as a matter of law. "When a plaintiff's claims fail as a matter of law on a motion for summary judgment filed by one defendant, then all defendants are entitled to a final judgment in their favor on those claims, regardless of whether they joined in the motion." HSBC Bank USA, N.A. v. Williston Investment Group LLC, Case No. 2:17-CV-331 JCM (CWH), 2018 WL 2110599, at *3 (D. Nev. May 7, 2018) (citing Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) ).

Discussion

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The initial burden is on the moving party to show that there is an...