By Ronald Miller, J.D.
On remand from the Supreme Court’s decision in Harris v. Quinn
, personal care assistants were denied certification of a class action seeking the refund of “fair share” fees paid to a union to support its collective bargaining efforts. A federal district court in Illinois found that the proposed class definition was too broad because it contained a great number of people who could not have been injured by the union’s conduct. Moreover, pursuit of refunds on behalf of a class required individualized determinations that predominate over the remaining common questions (Riffey v. Rauner
, June 7, 2016, Shah, M.).
Home care providers.
Under the Illinois Home Services Program, individuals needing in-home care to attend to their daily needs may hire home care providers, many of whom are related to the person receiving care. Illinois law provides that the personal assistants are considered public employees only for the purposes of collective bargaining with the state, and SEIU serves as their exclusive representative. The union is obligated to represent all personal assistants—both members of the union and nonmembers alike. Until recently, the collective bargaining agreements between the union and Illinois required that nonmembers pay fair-share fees to the union. The nonmembers objected to the collection of those fees and filed suit.
, the Supreme Court agreed with the nonunion caregivers and held that the fair-share fee procedures violated the First Amendment. Now on remand, the caregivers sought a refund of the fair share fees paid to the union. The named plaintiffs moved to certify a class consisting of all personal assistants who, at any point in time from April 22, 2008, to the present, were not members of the union and who had fair-share fees deducted without their prior, written authorization. The union estimated that the putative class would include approximately 80,000 personal assistants who paid approximately $32 million in fair-share fees during that time period.
First Amendment injury.
At the heart of the parties’ arguments over class certification are the necessary elements of an injury in the context of compelled subsidization of third-party speech, and whether such an injury can be proven on a class-wide basis. The union argued that an individual cannot suffer a First Amendment injury for compelled subsidization unless she also subjectively opposed the payment at the time. The plaintiffs countered that a First Amendment injury occurs whenever an individual is compelled to subsidize the speech of another without prior authorization. Because the union received fair-share fees from nonmembers without their affirmative consent, the personal assistants argued that all nonmembers who paid fair-share fees suffered First Amendment injuries.
Here, the court concluded that to prove injury, and the complete constitutional tort, the plaintiffs had to prove contemporaneous subjective opposition to the compelled payments. Still, the possibility that not every individual included in the class definition was injured did not preclude class certification. But if “a great number of” putative class members could not have been harmed by defendants’ conduct, then the proposed class was too broad and should not be certified.
In this instance, the union provided compelling evidence that a substantial number of proposed class members did not object to paying the fair-share fee, and would have consented if they had been given a choice. These caregivers could not have suffered a First Amendment injury. The court pointed out that a majority of personal assistants in 2003 voted for union representation, and a majority ratified the CBA in 2008 and 2012. Moreover, the union noted that 65 percent of the proposed class members who are still personal assistants have since joined the union. The plaintiffs did not rebut this evidence, but argued that class members who support the union should opt out after certification.
While the court observed that this procedure might be suitable if the class definition were not overly broad, the plaintiffs had the burden to demonstrate that class certification was appropriate. Without evidence to rebut the union’s showing that a great many nonmembers who paid fair-share fees had no subjective opposition to the union, the proposed class included too many people who could not have been injured by the deduction.
Rule 23 requirements.
With respect to the commonality and typicality requirements of Rule 23(a), the court observed that the caregivers had fair-share fees deducted without consent, such that the union’s conduct gave rise to the same kinds of claim across the proposed class. However, the court agreed with the union that whether class members were injured was an individual question. Thus, it found the plaintiffs’ proposal for class certification was not workable. First, the court rejected their argument that a First Amendment injury had already been established for each class member. Even if injury could be assumed, the extent of the injury would depend on the nonmembers’ subjective beliefs.
In addition, to the extent the compelled payment resulted in some tangible benefit to the nonmember from the union, the deduction may not be an accurate measure of loss. If the personal assistants received something of value, the net loss was not the amount of the fair-share deduction. Thus, even though plaintiffs’ claims shared common questions with the claims of the proposed class, and were typical in that they involved fair-share fee deductions, it would not make sense to certify a class only to immediately enter a phase of individualized damages inquiries.
Adequacy of representative.
Next, the plaintiffs argued that they were adequate representatives of the proposed class because they experienced the same First Amendment injury. However, the union contended that their requested relief and their anti-union ideology created a conflict between them and the rest of the proposed class. Here, the court observed that if the named plaintiffs seek damages to weaken the union, they are not likely to faithfully identify and inform class members who would want to opt out. As a First Amendment case, subjective beliefs are critical to resolution of the remaining issues. Thus, the named plaintiffs were not adequate representatives because many of the people they sought to represent would not want to associate with them.
Noting that damages was the primary reason the plaintiffs were seeking class certification, the court found this action could not be resolved in a single adjudication, and the damages questions for 80,000 potential class members would predominate over other questions. As currently conceived, the plaintiffs’ pursuit of class-wide refunds was the most significant issue remaining in the case. The predominant issue was the scope of relief, and that is an individual, not a class, question, declared the court. In addition, the plaintiffs’ proposed class presented significant manageability issues. They proposed no plan that would successfully determine on a class-wide basis whether fair-share-fee-paying personal assistants did not want to join or support the union.