Crockett et al v. NEA-Alaska et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Tracey Crockett, et al., )
)
Plaintiffs, ) 3:18-CV-00179 JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motions at docket 49, 53]
NEA-Alaska, et al., )
)
Defendants. )
)
I. MOTIONS PRESENTED
At docket 49, Defendants NEA-Alaska, National Education Association, and
Matanuska-Susitna Education Association ("Union Defendants") move to dismiss all of
Plaintiffs' claims against them. They argue that Plaintiffs' claim for prospective relief
with respect to compulsory payments to unions must be dismissed pursuant to
Rule 12(b)(1) for lack of subject matter jurisdiction. They argue that Plaintiffs' § 1983
claim and Alaska tort claims for retrospective monetary relief in relation to these
compulsory payments must be dismissed under Rule 12(b)(6) for failure to state a
claim. They argue that Plaintiff Kathryn McCollum's claim challenging Alaska's system
of exclusive representative collective bargaining and asking for prospective relief and
treble damages must also be dismissed under Rule 12(b)(6).
At docket 53, Defendant Matanuska-Susitna Borough School District ("School
District") joins the Union Defendants' motion to the extent it addresses the more limited
claims against it. Plaintiffs only seek prospective relief against the School District with
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respect to its collection of compulsory union payments and with respect to its exclusive
collective bargaining activities.
Plaintiffs1 respond at docket 56. Plaintiffs concede that the court lacks
jurisdiction over their claims for prospective relief with respect to compulsory union
payments, but they maintain that they are entitled to retrospective monetary relief for
the past collection of these payments. Plaintiff McCollum concedes that Supreme
Court precedent bars her constitutional challenge to exclusive representative collective
bargaining but maintains her challenge to such a system based on federal antitrust
laws.
The Union Defendants reply at docket 58. The School District replies at
docket 59. Oral argument was heard February 15, 2019.
II. BACKGROUND
Alaska's Public Employment Relations Act ("PERA") authorizes bargaining units
of public employees to choose to be exclusively represented by a labor union for
purposes of bargaining with public employers as to employment terms.2 To cover the
costs of union representation, PERA authorized public employers and unions to agree
that all represented employees would pay their proportionate share of the costs of
representation, regardless of union membership.3 That is, a union could require
through its collective bargaining agreement that public employers collect "fair share
fees" from non-union members that would be remitted to the union to apply towards its
bargaining activities. In the event an employee qualified as a religious objector to union
activities under PERA, a bargaining agreement could nonetheless require that the
1Plaintiffs in this case at this time include Timothy Christopherson, Kathryn McCollum,
David Ness, Carol Carman, Dolores McKee, and Donn Liston. The lead Plaintiff in the case
caption, Tracey Crockett, has been terminated from the case. If the parties wish to remove
Plaintiff Crockett from the court’s official caption, a motion to amend the caption must be filed
with the court.
2AS 23.40.100(b).
3AS 23.40.110(b).
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employee pay a fair-share fee to the union, but the union had to donate the am ount of
that fee to a charity of its choosing.4 Until recently, such fair-share fees were explicitly
authorized by Supreme Court precedent, Abood v. Detroit Board of Education.5 Abood
held that public employees may be required to pay their proportionate share of the
costs of union representation for collective bargaining purposes.6
Matanuska-Susitna Education Association ("MSEA") is the union that represents
a bargaining unit of the School District's employees. Plaintiffs McCollum and McKee
are employees in that bargaining unit. The agreement between the School District and
the employees includes a fair-share provision that required the School District to deduct
fees from its payments to non-union members and remit them to MSEA. Plaintiff
McCollum was not a union member at the time Plaintiffs filed their complaint; therefore,
she was required to pay fair-share fees. Plaintiff McKee was a union member at the
time. She alleges that she has long opposed the union but chose to remain in it
because she otherwise would have had to pay a fair-share fee "and the difference in
money between the full membership dues and the [fair-share fees] would not have
been worth the loss of [her] vote and . . . influence . . . in collective-bargaining matters."7
The other plaintiffs are current or former public school teachers that worked in
other school districts and were represented by NEA-Alaska affiliate unions for collective
bargaining purposes. Plaintiffs Ness and Christopherson were compelled to pay
non-union member fair-share fees to their representative union. Plaintiff Carmen was
not a union member but was compelled, as a religious objector under AS 23.40.225, to
4AS 23.40.225.
5431 U.S. 209 (1977).
6Under Abood, payments may be compelled from non-union members for collective
bargaining activities but not for “ideological activities unrelated to collective bargaining.” Id. at
236.
7Doc. 44 at ¶ 38.
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pay fees to the union for charitable purposes. Plaintiff Liston is a retired teacher who
had been a union member during his career but, like Plaintiff McKee, alleges that he
only became one because he otherwise would have been required to pay fair-share
fees.
On June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME,8
which overruled Abood and held that requiring non-union members to pay union fees as
a condition of public employment "violates the First Amendment and cannot continue."9
On August 2, 2018, Plaintiffs filed suit under 42 U.S.C. § 1983, Alaska common
law, and federal antitrust law. Their complaint can be divided into four different
requests: (1) a request for declaratory and injunctive relief to prevent the future
collection of fair-share fees, including religious objector fees; (2) a request that the
Union Defendants be required to refund all fair-share fees collected prior to Janus; (3) a
request that the Union Defendants be required to refund a portion of union membership
dues paid by Plaintiffs McKee and Liston; and (4) a request for prospective relief that
would make Alaska's exclusive representative collective bargaining system unlawful
and prevent its future use, as well as a request for treble damages to public employees
who have not been allowed to negotiate on their own behalf.
III. STANDARD OF REVIEW
Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s claims. In reviewing such
a motion, "[a]ll allegations of material fact in the complaint are taken as true and
construed in the light most favorable to the nonmoving party."10 To be assumed true,
the allegations, "may not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give fair notice and to enable the
8138 S. Ct. 2448 (2018).
9Id. at 2486.
10Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
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opposing party to defend itself effectively."11 Dismissal for failure to state a claim can
be based on either "the lack of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory."12 "Conclusory allegations of law . . . are
insufficient to defeat a motion to dismiss."13
To avoid dismissal, a plaintiff must plead facts sufficient to "'state a claim to relief
that is plausible on its face.'"14 "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."15 "The plausibility standard is not akin
to a 'probability requirement,' but it asks for more than a sheer possibility that a
defendant has acted unlawfully."16 "Where a complaint pleads facts that are 'merely
consistent with' a defendant’s liability, it 'stops short of the line between possibility and
plausibility of entitlement to relief.'"17 "In sum, for a complaint to survive a motion to
dismiss, the non-conclusory 'factual content,' and reasonable inferences from that
content, must be plausibly suggestive of a claim entitling the plaintiff to relief."18 "In all
11Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
12Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
13Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001).
14Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
15Id. (citing Twombly, 550 U.S. at 556).
16Id. (citing Twombly, 550 U.S. at 556).
17Id. (quoting Twombly, 550 U.S. at 557).
18Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009); see also Starr, 652 F.3d
at 1216.
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cases, evaluating a complaint's plausibility is a 'context-specific' endeavor that requires
courts to 'draw on ... judicial experience and common sense.'"19
In deciding whether to dismiss a claim under Federal Rule of Civil
Procedure 12(b)(6), the Court is generally limited to reviewing only the complaint, but
may review materials which are properly submitted as part of the complaint and may
take judicial notice of undisputed matters of public record that are outside the
pleadings.20 Furthermore, documents whose contents are alleged in a complaint and
whose authenticity no party questions, but which are not physically attached to the
pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss.21
IV. DISCUSSION
A. Prospective relief with respect to compulsory union fees
Plaintiffs concede in their response brief that they cannot seek injunctive relief
against the Union Defendants and the School District to prevent the future collection of
compulsory union fees because there is not a current controversy to be resolved on this
point.22 The day Janus was announced, NEA-Alaska sent a letter to all non-union
members in bargaining units represented by its local affiliates to inform them that it
would cease collecting fair-share fees. It informed them that any such fees that had
been collected in advance—to cover the period falling after the Janus decision date up
to the end of the fiscal year—would be refunded. Refund checks were mailed the next
day. NEA-Alaska local affiliates contacted school districts to notify them to immediately
19Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quoting Eclectic Props. E.,
LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)).
20See Gonzalez v. First Franklin Loan Services, 2010 WL 144862, at *3
(E.D. Cal. Jan. 11, 2010) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.
2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); MGIC Indem. Corp. v.
Weisman, 803 F.2d 500, 504 (9th Cir. 1986)).
21Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) overruled on other grounds by
Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
22Doc. 56 at p. 41.
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stop deducting fair-share fees. Given that it is undisputed that the collection of
fair-share fees ceased immediately after Janus, there is no actual, live controversy
sufficient to establish this court's jurisdiction over Plaintiffs' claims for prospective relief
with respect to fair-share fees.23
B. Monetary relief with respect to compulsory fees collected pre-Janus
Plaintiffs ask for monetary damages under § 1983 for the Union Defendants'
collection of fair-share fees pre-Janus. They assert that the court's Janus decision is
retroactive under Harper v. Virginia Department of Transportation.24 Consequently,
Plaintiffs assert that the Union Defendants' past collection of fair-share fees from them,
as non-members, was a constitutional deprivation for which they are entitled to § 1983
damages. The Union Defendants contend that Janus was not meant to have a
retroactive effect, but they note that the court need not make an affirmative ruling on
the issue because regardless of how the civil retroactivity doctrine applies to the case,
the good faith defense excuses them from liability under § 1983. They argue that they
are shielded from monetary liability because they collected fair-share fees according to
a presumptively valid state statute and as authorized under then-binding Supreme
Court precedent, Abood.
As private defendants acting under the color of state law, the doctrine of qualified
immunity from § 1983 suits is not available to the Union Defendants. The Supreme
Court in Wyatt v. Cole25 held as much based on the fact that the rationales justifying the
23See Timbisha Shoshone Tribe v. Dep’t of Interior, 824 F.3d 807, 812 (9th Cir. 2016)
(discussing how the court's jurisdiction is premised on there being an actual controversy to
resolve). Recent district court cases in this circuit have also dismissed claims for prospective
relief with regard to compulsory union fees post-Janus for lack of current controversy. See
Danielson v. Inslee, 345 F. Supp. 3d 1336, 1338-40 (W.D. Wash. 2018); Danielson v. AFSCME
Council 28, 340 F. Supp. 3d 1083, 1084 (W.D. Wash. 2018); Cook v. Brown, No. 6:18-cv-
01085, 2019 WL 982384, at *3-*4 (D. Or. Feb. 28, 2019); Carey v. Inslee, 3:18-cv-05208, 2019
WL 1115259, at *3-*4 (W.D. Wash. Mar. 11, 2019).
24509 U.S. 86 (1993).
25504 U.S. 158 (1992).
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application of qualified immunity to government officials are not transferrable to private
parties.26 However, in so holding, the Court did not foreclose "the possibility that private
defendants faced with § 1983 liability . . . could be entitled to an affirmative defense
based on good faith."27 The Court recognized that "principles of equity and fairness
may suggest . . . that private citizens who rely unsuspectingly on state laws they did not
create and may have no reason to believe are invalid should have some protection from
liability."28 Since Wyatt, several circuit courts, including the Ninth Circuit, have relied
upon the defense in shielding private defendants from liability.29 In Clement v. City of
Glendale, the Ninth Circuit relied on the good faith defense when it affirmed that a
private defendant, a towing company, was entitled to summary judgment as to the
plaintiff's § 1983 claim against it for towing her car in violation of the Fourteenth
Amendment. It held that the facts of the case supported the application of the defense:
the towing company "did its best to follow the law" in that "the tow was authorized by
the police department, conducted under close police supervision and appeared to be
permissible under both local ordinance and state law."30
Plaintiffs argue that Clement contradicts a prior Ninth Circuit case, Howerton v.
Gabica.31 They assert that Howerton makes "good-faith defenses . . . categorically
inapplicable to private parties who violate section 1983."32 Howerton, which came
26Id. at 168.
27Id. at 169.
28Id. at 168.
29Clement v. City of Glendale, 518 F.3d 1090 (9th Cir. 2008); Wyatt v. Cole, 994 F.2d
1113 (5th Cir. 1993); Vector Research, Inc. v. Howard & Howard Attorneys, P.C., 76 F.3d 692,
698-99 (6th Cir. 1996); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1275-78
(3d Cir. 1994).
30518 F.3d at 1097.
31708 F.2d 380 (9th Cir. 1983).
32Doc. 56 at p. 16.
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before Clement, held only that a private party cannot invoke the doctrine of qualified
immunity from suit—a holding that the Supreme Court would later endorse in Wyatt. As
noted above, the Court in Wyatt left open the possibility that private defendants could
avail themselves of an affirmative defense based on good faith, a concept which the
Court recognized as separate and distinct from qualified immunity.
Plaintiffs also argue that only private individuals, as opposed to private
companies, can invoke good faith to protect themselves from § 1983 liability. They
base such an argument on the fact that qualified immunity only applies to individual
officials, not government entities. Again, however, qualified immunity is not the same
as a good-faith affirmative defense. The rationale for qualified immunity—protecting
individual officers from the threat of personal monetary liability for carrying out their
duties—is admittedly not transferrable to private entities. However, other rationales,
such as principles of equity and fairness, support the application of the defense to
private entities in certain circumstances.33 Moreover, Clement, the controlling case law
in this circuit allowed a private entity to assert the good-faith defense.
Plaintiffs alternatively argue that if the defense is indeed available to private
defendants in § 1983 cases, its application is nonetheless limited. They argue that
under Wyatt the defense can only be applied to a constitutional claim if the claim is
analogous to a common law tort that would have conferred similar defenses when
§ 1983 was enacted. They argue that the most analogous tort in this situation is
conversion, and because conversion does not include an intent element, the good faith
defense cannot apply. Like the other three district courts in the Ninth Circuit to consider
this argument, the court disagrees with Plaintiffs' construction of the defense.34
33See Wyatt, 504 U.S. at 168-69; Cook, 2019 WL 982384, at * 6.
34See Danielson, 340 F. Supp. 3d at 1086; Cook, 2019 WL 982384, at *5-*6; Carey,
2019 WL 1115259, at * 6.
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Clement did not interpret the defense in this limited manner. It applied the
defense to a § 1983 claim without considering whether the common law would have
conferred the defense with respect to an analogous tort. The court was clearly more
"concerned about the inequities of holding the private towing company liable" when it
subjectively and reasonably believed it was following the law.35 Indeed, the impetus for
such a defense is rooted in concerns about the unfairness that would result from
holding private parties retrospectively liable under § 1983 for following the law. When
the Supreme Court held that private parties using a process established by state statute
can be considered state actors for purposes of § 1983, it recognized that private
individuals could unfairly be held liable if the state law is later held to be unconstitutional
and suggested that the "problem should be dealt with . . . by establishing an affirmative
defense."36 As noted by the Union Defendants, the approach propounded by Plaintiffs
"would increase the potential for unfairness by permitting some defendants that rely on
presumptively valid state laws to assert the defense while others could not, based
solely on the elements of various nineteenth-century common law torts."37
Even if the court must find a common law analogue, conversion is not the most
closely related tort. "The core element of Plaintiffs' First Amendment claim . . . is not
that the Unions acquired property. Instead, [it] is premised upon their right not to be
compelled by the government to associate with the Unions' expressive activities."38
That is, their claim stems from the dignitary harm that comes from being compelled to
support speech with which they disagree, not the taking of their property.
There are other common law torts with scienter elements that can be analogized
to Plaintiffs' claim. Tortious interference with a contract is one such cause of action:
352019 WL 982384, at *6.
36Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 942 n.23 (1982).
37Doc. 58 at pp. 8-9.
38Doc. 58 at p. 11.
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The wages from which Plaintiffs' agency fees were deducted were a
contractual debt owed to Plaintiffs by their employer under the collective
bargaining agreement. In 1871, such a debt could not provide the basis for
a conversion claim. Instead, a plaintiff would have had to pursue a claim
based on the third party's interference with the employer's satisfaction of its
contractual obligations--- and malice or lack of justification was an element of
[that tort] at common law.39
Abuse of process is also analogous to Plaintiffs' First Amendment claim. It is a "cause
of action against private defendants for unjustified harm arising out of the misuse of
governmental processes."40 Here, Plaintiffs' claim against the Union Defendants
depends on the use of governmental processes: their "invocation of Alaska statutes
authorizing deduction of agency fees from employees' paychecks and transmission of
those fees to the [Union Defendants]."41 At common law, an abuse of process claim
requires the plaintiff to establish that the defendant acted with malice or without
probable cause. Given the array of common law torts with scienter elements that can
be analogized to Plaintiffs' claim, the good-faith defense would be available to the
Union Defendants under Plaintiffs' approach.
Plaintiffs also assert that the defense is further limited in that it should only
protect defendants from legal claims, as opposed to equitable ones. Plaintiffs argue
that because they seek repayment from the Union Defendants based on equitable
considerations, the defense cannot apply here. Plaintiffs' position is unavailing under
the case law. Furthermore, as the Union Defendants persuasively argue in their reply
brief:
Plaintiffs had no expectation of receiving the fair share fees paid to the
Unions, and Plaintiffs already have received the benefits of collective
bargaining representation paid for with those fees. Requiring the Unions to
pay those funds to Plaintiffs as an equitable remedy would 'stand[ ] that
remedy on its head.'"42
39Doc. 58 at p. 11. See also Danielson, 340 F. Supp. 3d. at 1086.
40Wyatt, 504 U.S. at 164.
41Doc. 58 at p. 12.
42Doc. 58 at p. 18 (citing Gilpin v. AFSCME, 875 F.2d 1310, 1316 (7th Cir. 1989)).
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Plaintiffs' argument is also flawed in that the relief they seek does in fact sound in law.
Their fair-share fees paid for ongoing costs of representation the Union Defendants
provided on their behalf. There is no segregated fund to which Plaintiffs' payments can
now be traced, and therefore any relief would be paid from the Union Defendants'
general assets. A "personal claim against the defendant's general assets . . . is a legal
remedy, not an equitable one."43
Given that the good faith defense is indeed available to private defendants in
§ 1983 cases, the court must consider whether it in fact shields the Union Defendants
from monetary liability here. In line with the three other district courts that have applied
the defense under nearly identical facts, the court concludes that it does. As discussed
above, "traditional principles of equity and fairness . . . underpin the [good faith]
defense."44 The Union Defendants collected fair-share fees in accordance with PERA
and in accordance with then-binding Supreme Court precedent that upheld the
constitutionality of such fees. "It would be highly inequitable to hold private parties
retroactively liable for § 1983 damages in such a circumstance."45
Plaintiffs argue that the good faith defense should not apply to the facts here
because the Union Defendants should have known that the Supreme Court was poised
to overturn Abood given dicta in the Court's cases over the past six years. They argue
it was beyond question that the Court had "grave misgivings about the constitutionality
of public-sector agency shops" and the Union Defendants should not have continued to
collect fees pursuant to these arrangements in the face of such uncertainty, which
therefore precludes any argument that they collected fees in good faith.46 But "reading
the tea leaves of Supreme Court dicta has never been a precondition to good faith
43Montanile v. Board of Trustees, 136 S.Ct. 651, 658 (2016).
44Cook, 2019 WL 982384, at *7.
45Id.
46Doc. 56 at p. 25.
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reliance on governing law."47 Barring the use of the good-faith defense on a private
defendant who relied on Supreme Court precedent to justify its conduct based on the
likelihood of the Supreme Court overruling that precedent would indeed "imperil the rule
of law."48
Plaintiffs argue that, if nothing else, it is improper to dismiss a claim based on the
good-faith defense pursuant to Rule 12(b)(6). They assert that the defense is a
subjective one that requires evidence of the defendant's actual state of mind.
Therefore, they believe they need an opportunity to gather evidence as to what the
Union Defendants subjectively believed about the continued lawfulness of such fees;
that is, whether they understood such fees to be "constitutionally dubious."49 Such
evidence, they assert, would prove whether the Union Defendants were indeed acting
in good faith or whether they were just collecting as much money as they could before
the inevitable overruling of Abood. Again, this argument has been considered and
correctly rejected as unworkable by the other courts addressing this same issue in
these circumstances:
Admittedly, the subjective state of mind of a party asserting good faith is a
common inquiry in cases discussing the defense. . . . But applying the
subjectivity standard to this case results in a perverse outcome, if followed
to its logical conclusion. Assuming that the Union Defendant (or, more
accurately, an employee of the union), subjectively believed the Supreme
Court would not overrule Abood, the Union Defendant's collection of
[fair-share] fees, up until Janus, would be shielded by the good faith defense,
but not so if the same employee instead subjectively believed (correctly) that
the Supreme Court would overrule Abood. . . . Inviting discovery on the
subjective anticipation of an unpredictable shift in the law undermines the
importance of observing existing precedent and ignores the possibility that
47Cook, 2019 WL 982384, at *7.
48Id.; see also Carey, 2019 WL 1115259, at *7 (noting that such a position on the good
faith defense would cause “chaos in constitutional interpretation”).
49Doc. 56 at p. 25.
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prevailing jurisprudential winds may shift. . . . The good faith defense should
apply here as a matter of law.50
It is indisputable that the Union Defendants' collection of fair-share fees was lawful
under state statute and then-binding Supreme Court precedent. No amount of
discovery would prove otherwise.
Relatedly, Plaintiffs argue that dismissal is premature because the Union
Defendants have not shown that its pre-Janus collection of fees from non-union
members complied with Abood's restriction on the use of these fees for non-ideological
activities only. They assert that discovery is needed on this compliance issue before
the Union Defendants can establish a good-faith defense. Their argument is without
merit. As noted by the Union Defendants "Plaintiffs do not allege the Unions failed to
comply with Abood. Instead, Plaintiffs seek a refund of all fees the Unions received in
reliance on Abood."51 Their argument that discovery is needed on a different claim for
different relief on a different class before the court can apply the good-faith defense
simply does not track.
C. Monetary relief for union dues collected pre-Janus
Plaintiffs McKee and Liston were union members who paid union membership
dues rather than fair-share fees. They allege that they only became members because
they otherwise would have been forced to pay fair-share fees and the difference
between the amount of the membership dues and the amount of the fair-share fees
"would not have been worth the loss of their vote and whatever little influence they
might have been able to exert in collective bargaining matters."52 That is, they believe
the existence of the "unconstitutional agency shop" structure and its accompanying
50Danielson, 340 F. Supp. 3d at 1086; see also Carey, 2019 WL 1115259, at *7 (stating
that “good faith may be decided as a matter of law when the defendant relied upon a valid
statute”).
51Doc. 58 at p. 17.
52Doc. 44 at ¶ 38.
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fair-share fees compelled their union membership. They seek a refund of a portion of
their union membership fees exceeding the amount of the fair-share fees paid by
non-union members. Given that the union members' claim is also based upon
pre-Janus collection of fair-share fees, the court concludes that the good-faith defense
applies here as well.
Other reasons support denial of the union members' claims. First, they admit
that they made a decision to pay union membership dues in exchange for certain
benefits: a right to vote in union elections and the ability to influence collective
bargaining efforts. This voluntary choice precludes an argument that they were
compelled to subsidize the Union Defendants’ private speech. Indeed, "Janus says
nothing about people who join a union, agree to pay dues, and then later change their
mind about paying union dues."53 Their assertion that their union memberships were
compelled because they should have had the option to avoid union fees altogether, as
Janus now makes clear, is unpersuasive. The fact that plaintiffs would not have opted
to pay union membership fees if Janus had been the law at the time of their decision
does not mean their decision was therefore coerced.
Second, Plaintiffs McKee and Liston's agreement to become union members in
exchange for benefits created a contract between them and their unions that remains
enforceable after Janus.54 Plaintiffs cannot "seek to claw back money paid in exchange
for already-provided contractual benefits . . . based on later changes in the law.”55
Plaintiffs argue that the Union Defendants cannot rely on this contractual argument to
support dismissal under Rule 12(b)(6) because the contract is not described or
referenced in the complaint. However, the complaint admits that Plaintiffs McKee and
53Belgau v. Inslee, No. 18-5620, 2018 WL 4931602, at *5 (W.D. Wash. Oct. 11, 2018).
54Fisk v. Inslee, No. C16-5889, 2017 WL 4619223, at *5 (W.D. Wash. Oct. 16, 2017).
55Doc. 50 at p. 33; Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 277 (3d Cir. 2002).
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Liston agreed to pay union membership dues in exchange for membership benefits.
This admission alone supports the Union Defendants’ contractual argument.
D. Monetary relief under Alaska common law
Plaintiffs argue that they are entitled to a refund of pre-Janus fair-share fees and
dues under state tort law, specifically conversion and trespass to chattels, as well as
"replevin, unjust enrichment, restitution, and any other legal or equitable cause of action
that offers relief for the unlawful seizure of their personal property."56 The Union
Defendants are entitled to have these state law claims dismissed under Rule 12(b)(6),
because there can be no common law liability for conduct authorized by state statute.
Plaintiffs do not dispute that PERA authorized fair-share fees, and the Alaska Labor
Relations Agency, pursuant to PERA, promulgated regulations setting forth the
procedures for collecting fees. This "comprehensive system to govern labor relations
for public employees that includes fair-share fees . . . displaced any contrary common
law in this area."57 Pursuant to Janus, the federal Constitution prohibits the continued
enforcement of fair-share fee requirements under PERA; however, Janus "did not
change the Alaska Legislature's determination that fair-share fees do not violate state
law."58 That is, Janus does not change the fact that PERA displaced any state common
law tort claims that could have been brought with regard to fair-share fees collected
prior to Janus.
Plaintiffs argue that because the statute is now unconstitutional it can no longer
"confer immunity on otherwise tortious conduct."59 The court disagrees. It cannot
56Doc. 44 at ¶ 58.
57Doc. 50 at p. 36. See AS 01.10.010 (“So much of the common law not inconsistent
with . . . any law passed by the legislature of the State of Alaska is the rule of decision in this
state.”); City of Homer v. Gangl, 650 P.2d 396 (Alaska 1982) (noting that the adoption of an
applicable statute “prevails over the principles of common law”).
58Doc. 50 at p. 37.
59Doc. 56 at p. 32.
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ignore the fact that the Union Defendants' collection of fair-share fees prior to Janus
was authorized by state statute that was constitutional under controlling precedent. The
court cannot now go back and impose tort liability under common law for that conduct.
In any event, the court agrees with the Union Defendants that dismissal of Plaintiffs' tort
law claims is also warranted because Plaintiffs cannot establish the elements of the
various common law claims.60
E. Exclusive representative collective bargaining
Plaintiff McCollum uses the Supreme Court's issuance of Janus as an
opportunity to challenge not only the Union Defendants' past collection of fair-share
fees but also to more broadly challenge Alaska's system of exclusive representative
collective bargaining. She contends that the Janus decision calls into doubt the
constitutionality of exclusive union bargaining.61 She alleges that Alaska's exclusive
collective bargaining system infringes upon her associational freedoms because she
"remains bound to the terms of employment negotiated by a union that she does not
belong to and wants nothing to do with."62
Despite the dicta set forth in Janus that enticed Plaintiff McCollum to bring such
a First Amendment challenge, binding Supreme Court precedent flatly rejects her
position. In Minnesota State Board for Community Colleges v. Knight,63 the Supreme
Court held that a system of exclusive union representation does not violate the speech
or associational rights of individuals who are not members of the union. Indeed, the
Court in Janus reaffirmed as much, distinguishing between compelled financial support
for a union's exclusive representation and the underlying system of exclusive union
60See doc. 50 at pp. 37-40; Doc. 58 at pp. 21-22 for reasoning that the court adopts
herein.
61Doc. 44 at ¶ 50.
62Doc. 44 at ¶ 49.
63465 U.S. 271 (1984).
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representation and acknowledging that states can continue to require that a union serve
as the exclusive bargaining agent for its public employees.64 Plaintiff McCollum now
concedes that she cannot maintain her constitutional challenge to Alaska's system of
exclusive union bargaining. She, however, maintains that the system is nonetheless
unlawful under federal antitrust law.
Plaintiff's antitrust theory is that collective bargaining agreements stemming from
Alaska's PERA are anti-competitive because they require compensation based on
union-imposed pay scales and prevent individual employees from negotiating
compensation based on individual performance and merits. Plaintiff fails to cite any
case authority for her position. Indeed, it does not stand to reason that " federal
antitrust law prohibits Alaska from structuring labor relations for its public-sector
employees in the same way that Congress structured labor relations for private-sector
and federal government employees and that approximately 40 other states have
structured their public employee labor relations."65 Federal antitrust law, which seeks to
preserve competition in the private sector, simply does not encompass the way in which
a state chooses to set employment terms for its public employees. As to employees
not covered by federal labor relations law, Congress left states "free to legislate as they
see fit, and [to] apply their own views of proper public policy to the collective bargaining
process."66
Several exemptions and doctrines of federal antitrust law bolster this court's
conclusion that Plaintiff's claim falls outside the ambit of federal antitrust law. First,
antitrust laws do not "restrain a state or its officer or agents from activities directed by
64138 S. Ct. at 2465-67, 2485 n. 27.
65Doc. 58 at p. 23.
66United Farm Workers of Am. v. Ariz. Agric. Emp't Relations Bd., 669 F.2d 1249, 1257
(9th Cir. 1982).
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its legislature."67 Plaintiff consequently cannot challenge PERA itself. The legislature's
adoption of this exclusive representative bargaining system is "an undoubted exercise
of state sovereign authority" and is immune without further analysis.68
The collective bargaining agreements between the Union Defendants and school
districts, which are a result of this legislatively authorized system, likewise cannot be
challenged under antitrust laws. Although non-state actors, the Union Defendants and
school districts are undoubtedly carrying out the state's regulatory scheme through their
collective bargaining, and the agreements that stem therefrom, and consequently enjoy
state-action immunity from federal antitrust laws as to this conduct.69 There are no
issues of fact to develop on this issue; that is, it is indisputable that the challenged
restraint—a collective bargaining agreement negotiated by a representative union—is
"clearly articulated and affirmatively expressed as state policy."70
Plaintiff argues that state immunity cannot be applied to dismiss her antitrust
claim under Rule 12(b)(6) because the Union Defendants, as private actors, cannot
avail themselves of the state-action immunity defense unless, in addition to carrying out
state policy, they are actively supervised by the state in carrying out that policy, which is
an issue not discernible on the face of the complaint. The active supervision
requirement, however, is inapplicable here because the other party to the challenged
67Parker v. Brown, 317 U.S. 341, 350-51 (1943); see also Town of Hallie v. City of Eau
Claire, 471 U.S. 34, 39 (1985) (noting that public entities such as municipalities are exempt
from federal antitrust laws if their anticompetitive activities are authorized by state policy meant
to displace competition with regulation).
68N.C. State Bd. of Dental Exam’rs v. FTC, 135 S. Ct 1101, 1110-11 (2015) (stressing
that state legislation is an exercise of a state’s sovereign power and therefore exempt from the
operation of antitrust laws).
69See Chamber of Commerce v. City of Seattle, 890 F.3d 769, 781 (9th Cir. 2018)
(discussing when the Supreme Court has extended state-action immunity to non-state actors).
70Id. at 782. See also Preferred Commc’ns, Inc. v. City of L.A., 754 F.2d 1396, 1414
(9th Cir. 1985) (stating that state-action immunity extends to actions that the legislature
contemplated when authorizing the conduct at issue or that were a "necessary or reasonable
consequent of engaging in the authorized activity").
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collective bargaining agreement is the School District. "[U]nlike private parties, [local
government] entities are not subject to the 'active state supervision requirement'
because they have less of an incentive to pursue their own self-interest under the guise
of implementing state policies."71 A local government entity is entitled to a presumption
that it "acts in the public interest" and consequently there is "little or no danger" that the
entity would become "involved in a private price-fixing arrangement."72
Second, the labor of a human being cannot be a commodity whose price is
protected under federal antitrust regulation.73 Therefore, "restraints on the sale of the
employee's services to the employer"—those employment terms set forth in a
collective bargaining agreement—"are not themselves combinations or conspiracies in
the restraint of trade or commerce under the Sherman Act" even if they "curtail the
competition among employees."74 Indeed, the Ninth Circuit has held that restraints in a
collective bargaining agreement fall within the labor exemption to federal antitrust law.75
Third, the court is persuaded that the Noerr-Pennington doctrine also shields
collective bargaining agreements from a federal antitrust challenge. Under the doctrine,
efforts to convince the government to act in an anticompetitive manner are protected by
the First Amendment. Federal antitrust law therefore does not "regulate the conduct of
private individuals in seeking anticompetitive action from the government."76 As long as
the unions are not using the governmental process, as opposed to the outcome of the
71FTC v. Phoebe Putney Health Sys. Inc., 568 U.S. 216 (2013) (citing Town of Hallie v.
City of Eau Claire, 471 U.S. 34, 46-47 (1985)).
72Hallie, 471 U.S. at 45, 47.
7315 U.S.C. § 17.
74Apex Hosiery Co. v. Leader, 310 US 469, 503 (1940).
75Bodine Produce, Inc. v. United Farm Workers Org. Comm., 494 F.2d 541, 558 (9th Cir.
1974).
76City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379-80 (1991).
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process, as an anticompetitive weapon, negotiating with public officials for employment
terms that may in fact restrict competition is exempt from federal antitrust liability.77
V. CONCLUSION
Based on the preceding discussion, the motions at docket 49 and 53 are
GRANTED. Plaintiffs' complaint is hereby dismissed in its entirety.
DATED this 14th day of March 2019.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
77Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (1988); see also
Omni Outdoor Adver., 499 U.S. at 380.
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