Melissa Belgau v. Jay InsleeMelissa Belgau v. Jay Inslee
Case Information
*4
McKEOWN, Circuit Judge:
The Supreme Court’s decision in
Janus v. American
Federation of State, County, and Municipal Employees,
Council 31
was a gamechanger in the world of unions and
public employment.
But the world did not change for Belgau and others who
affirmatively signed up to be union members.
Janus
repudiated agency fees imposed on nonmembers, not union
dues collected from members, and left intact “labor-relations
systems exactly as they are.”
Id.
at 2485 n.27. Belgau and
fellow union-member employees claim that, despite their
agreement to the contrary, deduction of union dues violated
the First Amendment. Their claim against the union fails
under
6 B ELGAU V . I NSLEE
BACKGROUND
The putative class action plaintiffs Melissa Belgau,
Michael Stone, Richard Ostrander, Miriam Torres,
Katherine Newman, Donna Bybee, and Gary Honc
(collectively, “Employees”) work for Washington state and
belong to a bargaining unit that is exclusively represented by
the Washington Federation of State Employees, AFSCME
Council 28 (“WFSE”).
See
Employees became union members within three months of starting work. They signed membership agreements authorizing their employer, Washington state, to deduct union dues from their bi-weekly paychecks and transmit them to WFSE.
At the time Employees signed the membership cards,
union dues were between 1.37% and 1.5% of base wages.
They had the option of declining union membership and
paying fair-share representation (or agency) fees, which
were approximately 65–79% of union dues. Agency fees
covered the cost incurred by the union in representing the
interests of all employees—members and nonmembers
alike—in the bargaining unit over the terms of employment.
See Abood v. Detroit Bd. of Educ.
,
Joining the union conferred rights and benefits. Employees could vote on the ratification of collective bargaining agreements, vote or run in WFSE officer elections, serve on bargaining committees, and otherwise participate in WFSE’s internal affairs. Employees also enjoyed members-only benefits, including discounts on goods and services, access to scholarship programs, and the ability to apply for disaster/hardship relief grants.
Based on the authorization in the membership
agreements, Washington deducted union dues from
*6
Employees’ paychecks. Article 40 of the 2017–2019
collective bargaining agreement
(“CBA”) between
Washington and WFSE required Washington to deduct “the
membership dues from the salary of employees who request
such deduction
. . . on a Union payroll deduction
authorization card,” and to “honor the terms and conditions”
of these membership cards. Washington law also directed
Washington to collect the dues on behalf of WFSE from
union members who authorized the deduction.
See
In 2017, WFSE circulated a revised membership
agreement. The revised card, a single-page document,
headlined: “Yes!” the signatory “want[s] to be a union
member.” A series of voluntary authorizations followed.
The signatory “voluntarily authorize[ed]” and “direct[ed]”
Washington to deduct union dues and remit them to WFSE.
The signatory agreed that the “voluntary authorization” will
be “irrevocable for a period of one year.” The signatory
reiterated and confirmed these voluntary authorizations
[1]
Citations are to the section numbers in effect at the time of the
deductions. The current version of
After the Supreme Court decided Janus in June 2018, Washington and WFSE promptly amended the operative 2017–2019 CBA. These July 2018 and August 2018 Memos of Understanding removed Washington’s authority to deduct an “agency shop fee, non-association fee, or representation fee” from nonmember paychecks. However, the updated provision did not change Washington’s obligation to collect “membership dues” from those who authorized the deduction and to “honor the terms and conditions of each employee’s signed membership cards.”
After the Janus decision, Employees notified WFSE that they no longer wanted to be union members or pay dues. Per this request, WFSE terminated Employees’ union memberships. However, pursuant to the terms of the revised membership agreements, Washington continued to deduct union dues from Employees’ wages until the irrevocable one-year terms expired. The dues were last collected from *7 Employees when the one-year terms expired in April 2019.
In August 2018, Employees filed a putative class action against the state defendants—Washington State Governor Jay Inslee, and state agency directors and secretaries David Schumacher, John Weisman, Cheryl Strange, Roger Millar, and Joel Sacks (collectively, “Washington”)—and WFSE alleging that the dues deductions violated their First Amendment rights and unjustly enriched WFSE. Employees sought injunctive relief against Washington from continued payroll deduction of union dues, and compensatory damages and other relief against WFSE for union dues paid thus far. The district court granted summary judgment for Washington and WFSE and dismissed the case.
ANALYSIS
I. T HE
L ACK OF S TATE A CTION
The gist of Employees’ claim against the union is that it
acted in concert with the state by authorizing deductions
without proper consent in violation of the First Amendment.
The fallacy of this approach is that it assumes state action
sufficient to invoke a constitutional analysis. To establish a
claim under
The state action inquiry boils down to this: is the
challenged conduct that caused the alleged constitutional
deprivation “fairly attributable” to the state?
Naoko Ohno v.
Yuko Yasuma
,
We employ a two-prong inquiry to analyze whether
Washington’s “involvement in private action is itself
sufficient in character and impact that the government fairly
can be viewed as responsible for the harm of which plaintiff
complains.”
Ohno
, 723 F.3d at 994;
see Lugar v.
Edmondson Oil Co.
,
Nor can Employees prevail at the second step—“whether
the party charged with the deprivation could be described in
all fairness as a state actor.”
Id.
As a private party, the union
is generally not bound by the First Amendment,
see United
Steelworker of Am. v. Sadlowski
, 457 U.S. 102, 121 n.16
(1982), unless it has acted “in concert” with the state “in
effecting a particular deprivation of constitutional right,”
Tsao v. Desert Palace, Inc.
,
No Coercion or Oversight
. The state’s role here was to
permit the private choice of the parties, a role that is neither
significant nor coercive.
See Am. Mfrs. Mut. Ins. Co. v.
Sullivan
, 526 U.S. 40, 54 (1999) (requiring “significant
assistance”);
Lugar
,
WFSE and Employees entered into bargained-for
agreements without any direction, participation, or oversight
by Washington. “The decision” to deduct dues from
Employees’ payrolls was “made by concededly private
parties,” and depended on “judgments made by private
parties without standards established by the State.”
Id.
at 52
(citation omitted);
see Pinhas v. Summit Health, Ltd.
,
1998),
overruled on other grounds by E.E.O.C. v. Luce,
Forward, Hamilton & Scripps
,
Although Washington was required to enforce the membership agreement by state law, it had no say in shaping the terms of that agreement. The state “cannot be said to provide ‘significant assistance’ to the underlying acts that [Employees] contends constituted the core violation of its First Amendment rights” if the “law requires ” Washington to enforce the decisions of others “without inquiry into the *10 merits” of the agreement. Ohno , 723 F.3d at 996–97. Washington’s “mandatory indifference to the underlying merits” of the authorization “refutes any characterization” of WFSE as a joint actor with Washington. Id. at 997.
Ministerial Processing . At best, Washington’s role in the allegedly unconstitutional conduct was ministerial processing of payroll deductions pursuant to Employees’ authorizations. But providing a “machinery” for implementing the private agreement by performing an administrative task does not render Washington and WFSE joint actors. Sullivan , 526 U.S. at 54. Much more is required; the state must have “so significantly encourage[d] the private activity as to make the State responsible for” the allegedly unconstitutional conduct. Id. at 53.
No Symbiotic Relationship
. Nor did Washington
“insinuate[] itself into a position of interdependence with”
WFSE.
Ohno
,
We are not persuaded by Employees’ attempt to avoid
the state action analysis by framing their grievances as a
direct challenge to government action. This approach does
not square with their theory of allegedly insufficient consent
for dues deduction, rather than a challenge to the law or the
CBA. As we have observed, “[i]f every private right were
transformed into a governmental action just by raising a
direct constitutional challenge, the distinction between
*11
private and governmental action would be obliterated.”
Roberts v. AT&T Mobility LLC
,
Neither are we swayed by Employees’ attempt to fill the state-action gap by equating authorized dues deduction with compelled agency fees. The actual claim is aimed at deduction of dues without a constitutional waiver, not a deduction of agency fees, which did not occur. [3] See Blum 457 U.S. at 1004 (state action analysis is aimed at “the specific conduct of which the plaintiff complains” (emphasis added)).
At bottom, Washington’s role was to enforce a private
agreement.
See Roberts
,
II. E MPLOYEES H AVE N O F IRST A MENDMENT C LAIM
A GAINST THE S TATE
A. M OOTNESS
Employees’ sole remaining claim against Washington is
for an injunction prohibiting the continued deduction of dues
despite signed deduction authorizations. When Employees
filed the complaint, Washington was still deducting union
dues from their payrolls; however, the deductions ceased
when the one-year payment commitment periods expired. A
live dispute “must be extant at all stages of review, not
merely at the time the complaint is filed.”
Preiser v.
[3]
Our conclusion that state action is absent in the deduction and the
transfer of union dues does not implicate the Seventh Circuit’s analysis
on the collection of agency fees.
See Janus v. Am. Federation of State,
Cty. and Municipal Employees, Council 31
,
[4]
The district court also properly dismissed the unjust enrichment
claim against the union in light of the contractual agreement between the
parties.
See Young v. Young
,
B ELGAU V . I NSLEE 15 Newkirk , 422 U.S. 395, 401 (1975) (citations omitted). Thus, any prospective injunction would not provide relief for Employees’ mooted claim. See Ruiz v. City of Santa Maria , 160 F.3d 543, 549 (9th Cir. 1998) (“Claims for injunctive relief become moot when the challenged activity ceases” and “the alleged violations could not reasonably be expected to recur” (citation omitted)). But we are not deprived of jurisdiction because the claim falls within an exception to mootness.
In the class action context, a “controversy may exist . . .
between a named defendant and a member of the class
represented by the named plaintiff, even though the claim of
the named plaintiff has become moot.”
Sosna v. Iowa
,
Such an inherently transitory, pre-certification class-
action claim falls within the “capable of repetition yet
evading review” mootness exception if (1) “the duration of
the challenged action is ‘too short’ to allow full litigation
before it ceases,”
Johnson v. Rancho Santiago Cmty Coll.
Dist.
,
The challenged action—continued payroll deduction of union dues after an employee objects to union membership—is capped at a period of one year, which is too short for the judicial review to “run its course.” See Johnson 623 F.3d at 1019 (three years is “too short”). Because *13 Washington continued to deduct union dues until the one- year terms expired, other persons similarly situated could be subjected to the same conduct. For these reasons, we exercise jurisdiction over Employees’ claim against Washington.
B. T HE F IRST A MENDMENT Employees do not claim that joining a union was a condition of their job; they chose to join WFSE. Employees do not offer a serious argument that they were coerced to sign the membership cards; they voluntarily authorized union dues to be deducted from their payrolls. Employees do not argue they were later required to sign the revised union cards; they signed those documents and made the commitment to pay dues for one year. These facts speak to a contractual obligation, not a First Amendment violation. Employees instead argue that the Court’s decision in Janus voided the commitment they made and now requires the state to insist on strict constitutional waivers with respect to deduction of union dues. This argument ignores the facts and misreads Janus .
The First Amendment does not support Employees’ right
to renege on their promise to join and support the union.
This promise was made in the context of a contractual
relationship between the union and its employees. When
“legal obligations . . . are self-imposed,” state law, not the
First Amendment, normally governs.
See Cohen v. Cowles
Media Co.
,
Janus
did not alter these basic tenets of the First
Amendment. The dangers of compelled speech animate
Janus
.
Employees, who are union members, experienced no
such compulsion. Under Washington law, Employees were
free to “join” WFSE or “refrain” from participating in union
activities.
See
That Employees had the option of paying less as agency
fees pre-
Janus
, or that
Janus
made that lesser amount zero
by invalidating agency fees, does not establish coercion.
Employees’ choice was not between paying the higher union
dues or the lesser agency fees. Choosing to pay union dues
cannot be decoupled from the decision to join a union. The
membership card Employees signed, titled “Payroll
Deduction Authorization,” begins with the statement: “Yes!
I want to be a union member.” This choice to voluntarily
join a union and the choice to resign from it are contrary to
compelled speech.
See Gallo Cattle Co. v. Cal. Milk
Advisory Bd.
,
Janus
does not address this financial burden of union
membership. The Court explicitly cabined the reach of
Janus
by explaining that the “[s]tates can keep their labor-
relations systems exactly as they are—only they cannot force
nonmembers to subsidize public-sector unions.” 138 S. Ct.
at 2485 n.27. Nor did
Janus
recognize members’ right to
pay nothing to the union. The Court “was not concerned in
the abstract with the deduction of money from employees’
*15
paychecks pursuant to an employment contract” nor did it
give “an unqualified constitutional right to accept the
benefits of union representation without paying.”
Janus II
,
In an effort to circumvent the lack of compulsion,
Employees define the relevant First Amendment right as the
freedom not to pay union dues without “consent that amount
to the waiver of a First Amendment right.” In arguing that
Janus
requires constitutional waivers before union dues are
[5]
See Mendez v. Cal. Teachers Ass’n, et al.
,
deducted, Employees seize on a passage requiring any waiver of the First Amendment right to be “freely given and shown by ‘clear and compelling’ evidence.” Janus , 138 S. Ct. at 2486. This approach misconstrues Janus The Court considered whether a waiver could be presumed for the deduction of agency fees only after concluding that the practice of automatically deducting agency fees from nonmembers violates the First Amendment. It was in this context that the Court mandated that nonmembers “freely,” “clearly,” and “affirmatively” waive their First Amendment rights before any payment can be taken from them. Id. The Court discussed constitutional waiver because it concluded that nonmembers’ First Amendment right had been infringed, and in no way created a new First Amendment waiver requirement for union members before dues are deducted pursuant to a voluntary agreement.
We note that there is an easy remedy for Washington public employees who do not want to be part of the union: they can decide not to join the union in the first place, or they can resign their union membership after joining. Employees demonstrated the freedom do so, subject to a limited payment commitment period. In the face of their voluntary agreement to pay union dues and in the absence of any legitimate claim of compulsion, the district court appropriately dismissed the First Amendment claim against Washington.
AFFIRMED.