Opinion
No. CIV. S-00-0999 WBS DAD
July 13, 2000
MEMORANDUM AND ORDER
Plaintiffs Charles Baird, Allen L. Appell, and Edward J. Erler are professors employed by California State University ("CSU") organized in a bargaining unit exclusively represented for collective bargaining by defendant California Faculty Association ("CFA" or "the union"). Plaintiffs claim that they are not members of CFA. Plaintiffs have filed a class action complaint alleging that recently enacted Senate Bill 645 ("SB 645"), which allows CFA to collect the portion of the union dues from non-union members' paychecks, is unconstitutional.
Plaintiffs move for class certification pursuant to Federal Rule of Civil Procedure 23. See Fed.R.Civ.P. 23. Defendant CFA opposes the motion. Defendant Kathleen Connell (State Controller) joins in CFA's opposition. Defendant Public Employment Relations Board has submitted a statement that it "neither supports nor opposes Plaintiffs' motion for class certification."
I. Factual and Procedural Background
On October 10, 1999, Governor Davis signed SB 645, which became effective January 1, 2000 adding sections 3583.5 and 3584 to the California Government Code and amending several other sections. Section 3583.5 states in part:
any employee of the California State University or the University of California . . . who is in a unit for which an exclusive representative has been selected pursuant to this chapter, shall be required, as a condition of continued employment, either to join the recognized employee organization or to pay the organization a fair share service fee.
Cal. Gov't. Code § 3583.5(a)(1). Additionally, the section states:
[t]he costs covered by the fee under this section may include, but shall not necessarily be limited to, the cost of lobbying activities designed to foster collective bargaining negotiations and contract administration, or to secure for the represented employees advantages in wages, hours, and other conditions of employment in addition to those secured through meeting and conferring with the higher education employer.
Cal. Gov't. Code § 3583.5(a)(2). Further, section 3583.5 allows for a recission vote by a majority of all employees. This vote must be paid for by the petitioning party. See Cal. Gov't. Code § 3583.5(c)(1), (c)(4).
Section 3584 provides an exception to payment of the fair share fee by members "of a bona fide religion, body, or sect that has historically held conscientious objections to joining or financially supporting public employee organizations. . . ." Cal. Gov't. Code § 3584(a). In lieu of dues, the employee pays sums "equal to the amount of the fair share service fee . . . to a nonreligious, nonlabor charitable fund. . . ." Cal. Gov't. Code § 3584(a).
CFA sent a Notice to All Nonmember Agency Fee Payers for the Fee Period January 1 through December 31, 2000. This notice explained how the fee was calculated, the types of activities that were included and excluded from the fee calculation, financial data in support of the fee calculation, and the steps that the nonmember and CFA would follow if the nonmember challenges the accuracy of the calculation of the agency fee. Further, the notice detailed the procedure for asserting a religious objection. A nonmember asserting such an objection is required to contribute the equivalent of their agency fee to a charity from a list agreed to by CFA and CSU Administration.
Although non-union members may be compelled to pay a share of the cost of collective bargaining, they cannot be compelled to contribute money that will be used to finance ideological causes because this would violate the nonmembers' First Amendment rights. See Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). In Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), the Supreme Court articulated requirements for the union's collection of agency fees, including notice to the non-union members explaining the fee. See id. at 309-310.
On November 18, 1999, plaintiff Appell, a professor at CSU-San Francisco, wrote to CFA asserting a religious objection to the fees. On February 3, 2000, plaintiff Baird, a professor at CSU-Hayward, wrote to the CFA challenging the calculation of chargeable and nonchargeable expenses and asserting a religious objection to paying the agency fees.
Plaintiffs argue that SB 645 is unconstitutional. They state four counts pursuant to 42 U.S.C. § 1983: (1) the statute violates their equal protection rights under the Fourteenth Amendment by taking fees from employees "without any opportunity to persuade CFA or their employers not to negotiate for the fee requirement or to themselves vote on the requirement"; (2) the statute violates the First Amendment by authorizing public employee labor unions to include non-chargeable lobbying expenditures; (3) the statute violates the First Amendment and the Equal Protection Clause by authorizing the State to charge plaintiffs for exercising their right to rescind the "fair share fee" requirement; and (4) the statute infringes on the freedom of association protected by the First Amendment by imposing the fee requirement on all individuals who are not members of certain approved religions, bodies, or sects.
Plaintiffs ask for declaratory and injunctive relief in addition to nominal damages, compensatory damages, and equitable relief in the amount of "fair share fees" taken from them.
II. Class Certification
Plaintiffs move to certify the following class: "all individuals who are or were, at any time since October 10, 1999, non-union `higher education employees' in a bargaining unit represented by CFA." To be maintained as a class, the action must meet the four prerequisites under Federal Rule of Civil Procedure 23(a) in addition to meeting the requirements of at least one of the three subdivisions of Federal Rule of Civil Procedure 23(b). See Fed.R.Civ.P. 23(a),(b).
A district court must conduct a rigorous inquiry before certifying a class. See General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982); East Texas Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403-405 (1977). A district court has discretion in determining whether the moving party has satisfied each Rule 23 requirement. See Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Montgomery v. Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978). Petitioners have the burden of demonstrating that they satisfy the class certification prerequisites. See Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).
A. Rule 23(a)
The court must determine if the proposed class satisfies the four prerequisites under Rule 23(a):
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a).These requirements are more commonly known as numerosity, commonality, typicality, and adequacy of representation. See Fed.R.Civ.P. 23(a); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).
1. Numerosity
Rule 23(a)(1) requires a class "so numerous that joinder of all members is impracticable" before the action is class certified. East Texas Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 405 (1977) ("Careful attention" to the numerosity requirement is "indispensable."). Courts have established no absolute limitations for a determination of numerosity. See General Telephone Co. v. Falcon, 446 U.S. 318, 330 (1980). However, a class numbering "several thousand" satisfies the numerosity requirement with ease. See Morgan v. Laborers Pension Trust Fund for No. Cal., 81 F.R.D. 669, 676 (N.D.Cal. 1979). Plaintiffs have met the numerosity requirement. In their complaint, plaintiffs allege that the "number of persons in the proposed class is approximately 14,000." (Compl. ¶ 14). Defendants do not object on grounds of numerosity. (Opp'n. at 5:4-5).
2. Commonality
Rule 23(a)(2) requires "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). The Ninth Circuit construes commonality liberally. See Hanlon, 150 F.3d at 1019. Commonality is satisfied when there are underlying facts or legal theories common throughout the class even if the common facts support different legal theories or common legal theories rest on different facts. See id.
Here, there are common questions of law and fact. Plaintiffs allege that every class member has the identical right not to have a "fair share fee" statute enforced against him or her in violation of the First Amendment and the Equal Protection Clause. Each member had and will have fees taken from his or her wages pursuant to California Government Code Section 3583.5. If the statute is unconstitutional on its face, then it is unconstitutional for all plaintiffs. Defendants do not challenge plaintiffs' contention that the proposed class meets the commonality requirements. (Opp'n. at 5:4-5).
3. Typicality
Rule 23(a)(3) requires that the "claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). Typicality requires that named plaintiffs have claims "reasonably coextensive with those of absent class members" without the claims having to be "substantially identical." Hanlon, 150 F.3d at 1020. Plaintiffs argue that all the proposed class members have suffered an identical injury — having a "fair share fee" statute enforced against them in violation of the Constitution. CFA argues that named plaintiffs' claims are not typical because: (1) the proposed class is too broad; (2) named plaintiff Erler cannot represent the class regarding the religious discrimination claim; and (3) named plaintiffs Baird and Appell's religious discrimination claims are not typical of the class.
a. Class is too Broad
Plaintiffs' proposed class includes all individuals who are or were at any time since October 10, 1999, non-union "higher education employees" in a bargaining unit represented by CFA. Defendants argue that this class is too broad because the statute at issue, California Government Code section 3583.5 did not go into effect until January 1, 2000. Therefore, the class would include individuals who were employed in the CFA bargaining unit as of October 10, 1999, but were no longer in the bargaining unit as of January 1, 2000, the day the statute took effect. Plaintiffs do not object to modifying the class. Therefore, the class shall be "all individuals who are or were, at any time since January 1, 2000, non-union `higher education employees' in a bargaining unit represented by CFA."
b. Erler as a Class Representative
Defendants argue that Erler lacks standing to assert a claim of religious discrimination and therefore is prohibited from representing the class regarding this claim. See Bailey v. Patterson, 369 U.S. 31, 32-33 (1962) (plaintiffs who lack standing to assert a claim cannot represent a class asserting that same claim).
The fourth count states:
The Defendants have violated the freedom of association protected by the First Amendment to the U.S. Constitution by imposing the fee requirements on all individuals who are not members of certain approved religions, bodies, or sects, and exempts only members of those organizations from the requirement, even though others hold the same conscientious views but are not members of the approved organizations.
(Compl. ¶ 52). Appell and Baird have each sent a letter to CFA indicating that they hold a conscientious religious objection to the fee, but are not members of a State approved religion or organization. (Comp. ¶¶ 43-44, Exs. 2-3). Erler has never indicated that he holds such an objection. (Whitlow Decl. ¶ 3). Plaintiffs do not object to excluding Erler as a class representative for the fourth count because there is no allegation that Erler desires to assert a conscientious objection. The court therefore excludes Erler as a class representative for the fourth count and does not address whether he has standing or whether he may seek redress on this claim.
c. Fourth Count
Defendants argue that Baird and Appell's religious discrimination claims are typical of a subclass and not typical of the proposed class as a whole. Only 105 of the potential class members had sought an exemption as of June 15, 2000. (Whitlow Decl. ¶ 3). Some of these requests were granted, although Baird and Appell's requests were denied. (Whitlow Decl. ¶ 3). Defendants argue that only those potential plaintiffs who have asserted a religious objection and have been denied can bring a claim under the First Amendment.
Defendants, however, confuse plaintiffs' claim.
Plaintiffs are asserting a facial challenge to the statute on the grounds of violation of the First Amendment right to freedom of association, not a religious discrimination claim. If the statute is facially unconstitutional to one plaintiff, it is unconstitutional to all. Whether or not an individual plaintiff has applied for an exemption does not affect whether the statute is unconstitutional under the First Amendment's freedom of association clause.
With regard to this count, the court only certifies the class to the extent that plaintiffs assert a facial challenge. In passing, plaintiffs argue that they are asserting an as applied challenge as well. (Reply at 4: n. 2). Plaintiff has presented no evidence as to the typicality of named plaintiffs with regard to an as applied challenge, and the court therefore will not certify an as applied challenge under the fourth count.
CFA argues that it is under no obligation to notify employees of their right to assert a religious objection to payment of the fair share fee. The court does not address this issue because at the class certification stage it is inappropriate to address the merits of the underlying dispute.
4. Adequacy of Representation
a. Representatives
Rule 23(a)(4) requires representative parties who "will fairly and adequately protect the interests of the class." Fed. Rule Civ. P. 23(a)(4); see Hanlon, 150 F.3d at 1020. A class representative "must be part of the class and possess the same interest and suffer the same injury as the class members." East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403 (1977) (internal quotations omitted).
Defendants argue that named plaintiffs Baird and Appell are not adequate representatives because: (1) Baird and Appell's ideological opposition to CFA renders them unable to represent potential class member who do not share this view; and (2) Appell has repeatedly misled potential class members and therefore is not an adequate class representative.
i. Baird and Appell's Opposition to CFA
Defendants argue that Baird and Appell have expressed ideological conflicts with CFA and therefore cannot adequately represent plaintiffs who do not share the same ideology. Specifically, Baird stated in an e-mail intended to be forwarded to other faculty members that he supports decertification. (Ochoa Decl. Ex. I). Appell stated in an e-mail to fellow faculty members that "there is no need for a union." (Ochoa Decl. Ex. F). Other non-union faculty members have expressed different views. Defendants point to an e-mail from employee Greg Weeks, a non-union member, who "believe[s] very firmly that unions should play an essential role." (Ochoa Decl. Ex. D). Ellen Walker, also a non-union member, states that she "will not work to undo SB 645." (Ochoa Decl. Ex. C).
Both Weeks and Walker also expressed their lack of support for CFA. In the same e-mail, Weeks wrote, "I have seen all too clearly the current union leadership is weak, incompetent, and inept, prone always to crumbling under pressure. . . . I wish I would register my protest by refusing to pay the fee." (Ochoa Decl. Ex. D). Walker, in her same e-mail, wrote, "CFA is not a union. Its conduct has been shameful, cowardly, self-serving, and elitist. I am appalled at the idea that I will have to support it." (Ochoa Decl. Ex. C).
See Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177 (1974).
Defendants point out that several circuits have upheld the district court's finding that individuals with ideological opposition to the union are not adequate representatives of fee payers. See, e.g., Gilpin v. AFSCME, AFL-CIO, 875 F.2d 1310, 1313 (7th Cir. 1989) (district court was right not to certify the class when there is a potential conflict between the employee who does not join the union because he is hostile to unions and the employee who is happy to be represented by a union but does not want to pay any more for that representation than he is required to pay.); Kidwell v. Transportation Comm. Int'l Union, 946 F.2d 283, 305-306 (4th Cir. 1991) (upholding district court's decision not to certify a class following the reasoning in Gilpin); Weaver v. University of Chicago, 970 F.2d 1523, 1531 (6th Cir. 1992) (also upholding district court's decision not to certify a class following the reasoning in Gilpin). This line of cases is distinguishable from the present case, however, because one of the factors that went into the district court's decision in Gilpin (upon which Weaver and Kidwell rely), was that the plaintiffs asked for restitution, a form of punitive damages. The Gilpin court found that the employee who was happy with the union might not want so punitive a remedy. See Gilpin, 875 F.2d at 1313. Here, plaintiffs have not asked for restitution or other punitive damages.
ii. Appell as an Inadequate Class Representative
Defendants argue that plaintiff Appell is an inadequate class representative because he sent misleading information to the potential class. See Pilots Against Illegal Dues v. Airline Pilots, 938 F.2d 1123, 1134 (10th Cir. 1991) (court found no abuse of discretion when district court denied class certification on the ground that the representative was inadequate because he had sent a misleading letter to potential class members). Here, defendants point to several e-mails Appell sent to his fellow faculty members, asserting that 75% of the faculty were not members of the union. (See November 19, 1999 and November 26, 1999 e-mails, Ochoa Decl. Exs. E, F).
Defendants claim that in fact, 34% of faculty members are members of CFA (66% non-members) and that Appell, in a later e-mail, even acknowledged this figure, without retracting his previous remarks. (December 3, 1999 e-mail, Ochoa, Ex. H). Further, defendants argue that Appell misled the faculty by telling them that those individuals who assert a valid religious objection to the payment of fair share fees will receive a partial refund of the fees. (November 26, 1999 e-mail, Ochoa, Ex. F). In fact, the fees of religious objectors are not refunded, but rather are given to charity. (See Cal. Gov't. Code § 3584(a)).
The court finds that Appell's e-mails were not sufficiently misleading to give cause to remove him as a named plaintiff. Although the e-mails dated November 19 and November 26, 1999 may have given incorrect information about the number of faculty members in the union, he later corrected this information. Further, defendants have not made it clear how the percentage of faculty members in the union is important to the constitutional challenge. Second, the e-mail regarding the religious exemption stated that "if you have such a religious objection you may redirect the funds that will be taken mandatorily out of your paychecks starting in January, to yourself and a charity(s) of your choice." (November 26, 1999 e-mail, Ochoa Ex. F). This phrasing may be unclear, but Appell clarified it at a later point in the e-mail where he supplied a sample letter. The sample letter discusses giving the union dues to charity, not returning them to the nonmember. (November 26, 1999 e-mail, Ochoa Ex. F). Further, all nonmembers received the notice from CFA, detailing the religious exemption. Even if Appell's language was confusing, there is no evidence that it actually mislead any potential plaintiffs.
Defendants have provided no proof that 34% is the correct percentage.
It is not the court's responsibility to seek out the best representatives for the class. Rather, the court determines if the named plaintiffs are adequate representatives. Baird and Appell are adequate representatives.
b. Attorneys
In addition to the adequacy of representative parties, plaintiffs must also show adequate representation by class counsel. See Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994) (adequate representation depends on qualifications of class counsel). Here, plaintiffs are represented by Dylan B. Carp and Milton L. Chappell of the National Right to Work Legal Defense Foundation. Defendants do not question the attorneys' capabilities.
B. Rule 23(b)
An action that meets all the prerequisites of Rule 23(a) may be maintained as a class action if it also meets the requirements of at least one of the three subdivisions of Rule 23(b). See Eisen v. Carlisle Jacquelin, 417 U.S. 156, 163 (1974). Plaintiffs seek certification under either Rule 23(b)(1)(A) or Rule 23(b)(2). See Fed.R.Civ.P. 23(b)(1)(A), (b)(2).
Plaintiffs' proposed class meets the criteria of Rule 23(b)(2). Hence, the court does not address whether it meets the criteria of Rule 23(b)(1)(A). Rule 23(b)(2) provides for a class action when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2).
Plaintiffs ask for a declaratory judgment regarding the unconstitutionality of parts of SB 645. (Compl., Prayer for Relief ¶ B). Second, plaintiffs ask for an injunction prohibiting defendants from taking any action to collect fair share fees from plaintiffs and class members pursuant to SB 645 "until its constitutional deficiencies have been remedied." (Compl., Prayer for Relief ¶ C). They further ask for an injunction enjoining defendants from enforcing the requirement that petitioners requesting a recession election bear the cost of conducting such an election. (Compl., Prayer for Relief ¶ D). Finally, they ask for a permanent injunction enjoining defendants from imposing the fee requirement only on individuals who are not members of certain approved religions, bodies, or sects. (Compl., Prayer for Relief ¶ E). Such declaratory and injunctive relief would apply to the class as a whole. Defendants do not object to certifying the class under 23(b)(2).
III. Conclusion
Plaintiffs have met all of the prerequisites under 23(a) and have met the criteria of Rule 23(b)(2). The court will certify the class with minor modifications.
IT IS THEREFORE ORDERED that plaintiffs' motion for class certification be, and the same hereby is, GRANTED. The court certifies the following class: "all individuals who are or were, at any time since January 1, 2000, non-union `higher education employees' in a bargaining unit represented by CFA."
The class shall be represented by named plaintiffs Charles Baird and Allen L. Appell for all counts and by plaintiff Edward J. Erler for the first three counts only. As to the fourth count, the class is certified only to the extent that it asserts a facial, as opposed to an as applied, challenge to the statute.