Cruz v. Union Independiente Autentica de Empleados de la Autoridad de Acueductos y Alcantarillados (UIA) et al
Filing
233
OPINION AND ORDER: See attached. Plaintiff's claims are dismissed without prejudice. Judgment shall be entered accordingly. Signed by Judge Pedro A. Delgado-Hernandez on 10/17/2023. (AEM)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
REYNALDO CRUZ,
Plaintiff,
v.
CIVIL NO. 17-2261 (PAD)
UNIÓN INDEPENDIENTE AUTÉNTICA
DE LOS EMPLEADOS DE LA
AUTORIDAD DE ACUEDUCTOS Y
ALCANTARILLADOS; ET AL.,
Defendants.
OPINION AND ORDER
Delgado-Hernández, District Judge.
This is a challenge by an employee of the Puerto Rico Aqueduct and Sewer Authority
(“PRASA”), to the union-shop, maintenance-of-membership, and related fee-deduction
provisions of the Puerto Rico Labor Relations Act, Law 130 of May 8, 1945, P.R. Laws Ann. tit.
29, §§ 61 et seq. (“Law 130”) and of the collective bargaining agreement (“CBA”) between
PRASA and the Union Independiente Auténtica de los Empleados de la Autoridad de
Acueductos y Alcantarillados (“UIA” or the “Union”) (Docket No. 1). In addition, the employee
complains that PRASA and UIA deducted and collected union fees from his wages in violation
of the notice and procedural requirements outlined in Chi. Tchrs. Union, Loc. No. 1, AFT, AFLCIO v. Hudson, 475 U.S. 292 (1986). Id. Along this line, he sued the Governor of Puerto Rico
in his official capacity, PRASA, and UIA, seeking declaratory, injunctive, and monetary relief;
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 2
costs and attorney’s fees pursuant to 42 U.S.C. §§ 1983 and 1988; 28 U.S.C. §§ 2201 and 1920;
and Federal Rules of Civil Procedure 54(d) and 57 (Docket No. 1, pp. 21-23).1
Initially, defendants opposed the action but later in the litigation agreed that no employee
should be required to belong to the Union or subject his wages to withholdings for union dues
and fees in order to maintain employment with PRASA.
Further, PRASA stopped those
withholdings and UIA requested authorization to deposit —and deposited— with the court the
amount in union dues and fees that PRASA withheld from plaintiff’s wages pursuant to the CBA
after he attempted to resign from the Union, and until the date that UIA accepted his resignation
and PRASA ceased deducting them, plus interest (Docket No. 231).
Considering these
developments, the case is moot. Dismissal, however, will be without prejudice to allow plaintiff
to reopen the case in the event PRASA were to fall back into the situation that led plaintiff to
initiate this action.
I.
PLEADINGS
A. Complaint
Plaintiff alleges that since 1992 he has been a PRASA employee required to maintain
union membership and subject his wages to deduction of union fees as a condition of
employment; in 2016, he resigned from the Union, but PRASA and UIA did not recognize the
resignation and continued deducting union dues and fees pursuant to Law 130 and the CBA
(Docket No. 1). He asserts that: (1) Law 130 is unconstitutional in that it authorizes PRASA and
UIA to enter into “all-union” and “maintenance of membership” agreements and to subject the
1
The Governor is no more than a nominal party in this litigation. Because of the Eleventh Amendment, damages
may not be recovered from him. In the event Hudson rights were violated, he would not be liable for or subject to
any remedies over that violation. And he has no role in the administration of the CBA.
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 3
wages of non-consenting employees to withholdings for union dues; (2) various clauses in the
CBA between PRASA and UIA are unconstitutional to the extent they include those
requirements; and in the alternative, (3) PRASA and UIA failed to comply with Hudson, 475
U.S. at 292. Id. Also, he claims that public sector collective bargaining is inherently political
and requests overruling of Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which,
among other things, upheld the constitutionality of the agency shop in the public sector. Id.2
B. Defendants’ Response
1. Governor
The Governor moved to dismiss, basically expressing that: (1) the Eleventh Amendment
shields him from liability for damages in his official capacity; and (2) suing him is tantamount to
“barking up the wrong tree,” for he cannot afford plaintiff the remedy he is asking for (Docket
No. 31, pp. 7-8). Plaintiff countered that the Governor has the duty to faithfully execute the laws
of Puerto Rico, and his presence is necessary to afford plaintiff a complete remedy (Docket No.
34).
2. UIA
UIA requested dismissal, pointing out that: (1) UIA is not a state actor; (2) Abood upheld
agency shop agreements allowing every employee in the bargaining unit to pay a service fee to
defray the costs of collective bargaining, contract administration, and grievance adjustment,
albeit not to support ideological causes not germane to its duties as collective bargaining agent;
The court construed this request as a call to bypass Abood. At the end of the day, however, “only the [Supreme]
Court “may overrule one of its precedents.” Panhorst v. U.S., 241 F.3d 367, 372 (4th Cir. 2001)(quoting Thurston
Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983)). Still, as explained below, while this litigation
was ongoing the issue came to a head in Janus v. AFSCME, 585 U.S. __, 138 S.Ct. 2448 (2018), which expressly
overruled Abood.
2
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 4
(3) plaintiff did not allege that UIA collected money from unit members to support ideological
causes; (4) although collective bargaining might interfere with First Amendment rights, such
interference as exists is constitutionally justified by the governmental interest in maintaining
industrial peace and avoid free riding (Docket No. 43); (5) the Supreme Court has upheld the
main holding of Abood several times; (6) PRASA operates as a private corporation and the
National Labor Relations Act recognizes the validity of the union shop; and (7) Law 333 of
September 16, 2004, P.R. Laws Ann. tit. 29, §§ 100 et seq. (“Law 333”), includes a Bill of
Rights of Members of Organized Labor that complies with Hudson (Docket No. 43).
Plaintiff opposed the UIA’s request, arguing that: (1) UIA and PRASA were acting under
color of state law by requiring him to maintain union membership and pay union dues and fees
as a condition of employment; (2) PRASA is a state actor and unions are state actors when they
engage in joint activity with state actors, which occurred here when PRASA and UIA entered
into the CBA; (3) Abood recognized that employees who refuse to associate with a union may
constitutionally prevent the union’s spending a part of their required service fees to contribute to
political candidates and to express political views unrelated to its dues and exclusive bargaining
representative; yet, (5) First Amendment injury occurs when state actors compel support for
speech and activity, not when the victim identifies specific political or ideological objection to
First Amendment injury; (6) to be a union member here requires employees to swear loyalty to
the union, and to attend meetings, pickets, marches, work stoppages or strikes if ordered, and if
they fail to comply are subject to disciplinary measures, which infringe upon employee’s rights;
and, (7) closed shops are a prohibited form of compulsory association (Docket No. 46).
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 5
Moreover, plaintiff expressed that: (1) Abood was wrongly decided because collective
bargaining in the public sector is political speech indistinguishable from lobbying and has
powerful political and civic consequences; (2) agency fee provisions impose a significant
impingement on First Amendment rights, and to survive must serve a compelling state interest
that cannot be served through means significantly less restrictive of associational freedoms, a test
that the challenged provisions at issue in this case do not satisfy; and (3), whatever mechanism
Puerto Rico might have established to protect union members rights under Law 333, UIA has an
independent obligation to provide employees with those safeguards, and requiring plaintiff to
litigate his Hudson claim with the state labor relations board to secure those rights would impose
an unconstitutional condition on the First Amendment protections that he is owed a priori from
the Union (Docket No. 46).
UIA replied, pointing out that: (1) it is not a state actor; (2) Abood permits public sector
unions to collect fees geared towards defraying the costs of collective bargaining agreements, a
decision justified by the need to maintain labor peace and avoiding free riders who would reap
the benefits that employees obtain from the union’s negotiating an agreement without
contributing anything to the negotiations; (3) plaintiff failed to identify any instance of dues
being used for ideological spending not germane to UIA’s duties as collective bargaining agent
of PRASA’s employees or instances where he was forced to participate in meetings, pickets,
marches, work stoppages or strikes; (4) PRASA operates not as a public employer but as a
corporation in a market, no PRASA employee is elected or directly responsible to the electorate,
and as such, union members of the UIA are basically in the same position as private sector union
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 6
members in collective bargaining, which only indirectly affects, if at all, the electoral body; and
(5) Law 333 satisfies Hudson concerns (Docket No. 52).
3. PRASA
PRASA did not move to dismiss. Instead, it answered the complaint and cross-claimed
against UIA (Docket No. 32). As for the complaint, PRASA admitted some allegations and
denied others. Id. In addition, it raised affirmative defenses, including that: (1) its actions were
lawful within the purview of Law 130 and the CBA; (2) it was legally and contractually bound to
comply with the UIA’s dues checkoffs deductions; (3) it has no control over the amount of fees
established by UIA or UIA’s internal processes in dealing with bargaining unit employees’
objections over union dues; and (4) it lacks authority over how union dues are allocated or spent.
Id.
As for the cross claim, PRASA asserted that Article VII (5) the CBA includes a holdharmless clause, which states: “The Union agrees to indemnify or exonerate PRASA for any
amount of dues that PRASA deducted in compliance with this Article and that PRASA could be
held liable to restitute to any employee or group of employees as a result of a judgment of
decision that orders it as a result of a cause attributable to the Union.” Id. Along this line,
PRASA claimed that UIA is solely responsible for any and all remedies granted to plaintiff that
could be imposed against PRASA in connection with plaintiff’s union dues deduction by virtue
of the CBA. Id. UIA moved to dismiss the crossclaim, arguing that inasmuch as the complaint
upon which the crossclaim is contingent must be dismissed, so too must the crossclaim be
dismissed (Docket No. 44).
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 7
II.
INTERVENING DECISION
While the motions to dismiss were pending, the Supreme Court decided Janus,138 S.Ct.
at 2448, invalidating agency fees in public sector collective bargaining. As a result, the court
issued a show cause order regarding the impact of Janus on this litigation (Docket Nos. 55).
Defendants responded (Docket Nos. 64, 65, 70); plaintiff reacted to those filings (Docket Nos.
77, 78, 79); and UIA replied to the Governor’s and PRASA’s responses (Docket Nos. 76, 89).
Additionally, the court heard arguments on pending motions (Docket No. 143). After the
hearing, it denied the motions to dismiss (Docket Nos. 91, 144, 145); the Governor and UIA
answered the complaint (Docket Nos. 148, 149); and UIA answered PRASA’s crossclaim
(Docket No. 152).3
With the case past the pleadings stage, following discovery plaintiff moved for summary
judgment (Docket Nos. 173). PRASA and UIA opposed plaintiff’s motion, moving for dismissal
based on mootness (Docket Nos. 191 and 192), with which plaintiff took issue (Docket Nos. 204
and 205).
UIA replied (Docket No. 216).
Meanwhile, the court permitted the Office of
Professional Employees of the Public Building Authority Union (“OPEPBAU”’), the State
Insurance Fund Employees Union (“SIFEU”), and the American Federation of Labor and
Congress of Industrial Organizations (“AFL-CIO”) to participate in the case as Amicus Curiae
(Docket No. 143, p. 10).4
In denying the Governor’s motion to dismiss, the court should have clarified that the Governor would stay in the
case as a nominal party.
3
4
Like PRASA, the Public Building Authority and the State Insurance Fund are public corporations, that is,
corporations owned or controlled by the Government of Puerto Rico. See, P.R. Laws Ann. tit. 11, § 1b (State
Insurance Fund); and P.R. Laws Ann. tit. 22, § 902 (Public Building Authority). Hereinafter, OPEPBAU-SIFEU
will be referred to as Amicus I; and AFL-CIO as Amicus II. Originally, Amicus I requested intervention (Docket
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 8
III.
DISCUSSION
A. Introduction
To understand why the case is moot, it is helpful to clarify what this case is not about. It
is not about the right of PRASA employees to organize; to engage in collective bargaining; to
participate in concerted activities; or to strike (Docket No. 143, p. 53). Instead, it deals with
“union security” arrangements, a term that generally encompasses setups designed to bolster a
union’s membership and finances. ROBERT A. GORMAN & MATTHEW W. FINKIN, BASIC TEXT ON
LABOR LAW UNIONIZATION AND COLLECTIVE BARGAINING 900 (2nd ed. 2004). These include:
1. The “closed shop,” where an individual must be a member of the union in order to be
eligible for hire and must retain membership as a condition of continued employment
with the employer;
2. The “union shop,” where an individual who is not a member of the union may be
hired but within a specified time after hire must become and remain a member as a
condition of continued employment with the employer;
3. The “maintenance of membership” clause, where an individual who is not a member
of the union may be hired and retained but must remain a member until termination of
the contract once having voluntarily become a member; and,
4. The “agency shop,” where the individual who is not a member of the union may be
hired and retained in employment without the necessity of becoming a member of the
No. 94), which the court granted (Docket No. 95). Plaintiff asked for reconsideration (Docket No. 96); Amicus I
opposed plaintiff’s request (Docket No. 107); and the court went along with the motion for reconsideration but
permitted Amicus I to participate in the case as Amicus (Docket No. 143, p. 10).
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
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union but must tender dues to the union as a condition of continued employment with
the employer.5
As mentioned earlier, plaintiff impugns the constitutionality of: (1) the union shop,
maintenance of membership, and union fee deduction provisions of Law 130, as supplemented
by Law 99 of June 23, 1955; and (2) the conforming clauses of the CBA between PRASA and
UIA. Along this line, Article 8(1)(c) of Law 130 authorizes employers and labor organizations
to enter into “all-union” and “maintenance of membership agreements.” P.R. Laws Ann. tit. 29,
§ 69(1)(c).
Article 2(7) defines an “[a]ll union agreement” as an agreement between an
employer and the representative of his employees in a collective bargaining unit whereby it is
required as a condition of employment, that all employees in such unit be members of a single
labor organization.
Id. at § 63(7).
Article 2(8) defines a “[m]aintenance of membership
agreement” as the agreement between an employer and the representatives of his employees in a
collective bargaining unit whereby it is required as a condition of employment, of all the
employees who are members of the union at the time of the execution of the collective
bargaining agreement or at other times thereafter, and under such other conditions as may be
specified in the agreement, that they maintain themselves in good standing as members of the
union during the life of the contract. Id. at § 63(8).
In turn, Article 8(1)(b) of Law 130 permits employers to deduct any sum of money from
the salary, earnings or income of an employee for the payment of dues to a labor organization
5
For a description and summary of union security arrangements, see, Luce & Co. v. Labor Relations Board, 71
P.R.R. 335, 340 (1950); David B. Gaebler, Union Political Activity or Collective Bargaining? First Amendment
Limitations on the Uses of Union Shop Funds, 14 U.C. DAVIS L. REV. 591, n. 2 (1981); James M. Sullivan, Freedom
of Association and the Public Sector Agency Shop: Ball v. Detroit and Abood v. Detroit Board of Education, 85
DICK. L. REV. 21 n. 1 (1980); GORMAN & FINKIN, supra, at 900-901.
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
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when such deduction is required by the terms of a collective bargaining agreement between the
employer and a labor organization not established, maintained or supported by any action
defined as an unfair labor practice, if such organization represents a majority of the employer’s
employees in an appropriate unit covered by such contract. Id. at § 69 (1)(b). Correspondingly,
Article 4 of Law 99 allows employers to pay and deliver or to agree to pay or deliver money to
employee representatives, and employee representatives are permitted to receive or accept or to
agree to receive or accept money from an employer, “with respect to money deducted from the
wages, salaries, remunerations, or incomes of employees for the payment of dues in a labor
organization, provided such deduction is required by virtue of the terms of a collective
bargaining agreement executed between the employer and a labor organization.” Id. at § 84(4).
The conforming contractual clauses are found in Articles VI (1), (2), (4) (5) and VII of the CBA.
B. General Statutory Developments
Prior to 1934, there were no federal legislative limitations “on the right to bargain for
union security.” Charles E. Hopfi, Agency Shop Question, 49 CORNELL L. REV. 478, 479 (1964).
In common law, “when courts typically enjoined strikes and picketing directed at objects
believed by judges to be antisocial, injunctions frequently issued against concerted activities
designed to coerce all employees to join the union or to coerce the employer to coerce in turn its
employees to join the union.” GORMAN & FINKIN, supra, at 898. In those settings, closed-shop
arrangements were widely regarded as a proscribed subject. Id. The Great Depression and the
advent of President Franklin D. Roosevelt’s New Deal “spawned a political climate that was
favorable to —or at least tolerant of— the growth of organized labor.” I THE DEVELOPING
LABOR LAW 24 (Patrick Hardin & John E. Higgins, Jr. eds., 2001).
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
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In 1933, Congress enacted the National Industrial Recovery Act. See, 48 Stat. 195
(1933). Section 7(a) “attempted to persuade industry to recognize employee rights to organize
and bargain collectively, but the absence of any power to enforce these ‘rights’ rendered them
virtually useless in the face of management’s understandable hesitance to aid the growth of
organized labor.” THE DEVELOPING LABOR LAW, supra, at p. 25. In 1934, Congress “prohibited
union shop agreements” in the railway sector subject to the Railway Labor Act, 45 U.S.C. §§ 151
et. seq. (“RLA”). Railway Emp. Dept. v. Hanson, 351 U.S. 225, 231 (1956).6 At that point, the
attitude of railway unions toward union security was rather ambivalent, for the union shop was
being used by some employers to establish and maintain company unions. Id. Thence, just as no
covered employer could contractually bind an employee not to join a union (the so-called yellow
dog contract), no employer subject to the statute “could contractually require than an employee
join.” GORMAN & FINKIN, supra, at p. 898.7
In 1935, Congress enacted the National Labor Relations (“Wagner”) Act to govern labor
relations in the private sector other than in the railway industry regulated by the RLA. See, Pub.
L. No. 198, 49 Stat. 449 (1935)(current version at 29 U.S.C. §§ 151-169). Expressing “concern
for union stability in the face of employer coercion” (GORMAN & FINKIN, supra, at p. 898),
Congress enacted § 8(3) of the Wagner Act, forbidding employers from encouraging or
discouraging membership in any labor organization “by discrimination in regard to hire or tenure
Congress enacted the RLA in 1926 to “promote stability in labor-management relations” in the railroad industry.
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994). In 1936, Congress extended the RLA to the then smallbut-growing air transportation industry, except for a provision dealing with the National Railroad Adjustment Board.
See, International Ass’n of Machinists, AFL-CIO v. Central Airlines, Inc., 372 U.S. 682, 958 (1963)(describing
1936 amendments to the RLA).
6
7
See also, Int’l Ass’n of Machinists v. S. B. Street, 367 U.S. 740, 752-753 (1961)(describing congressional
consideration of 1934 union security amendment to the RLA).
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de la Autoridad de Acueductos y Alcantarillados, et al.
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or employment or any term or condition of employment.” 29 U.S.C. § 158(a)(3). And to
preserve the negotiation and observance of union security agreements, Congress added that
nothing in the provision or in any other statute of the United States, “shall preclude an employer
from making an agreement with a labor organization . . . to require as a condition of employment
membership therein . . . if such labor organization is the representative of the employees . . . in
the appropriate collective bargaining unit covered by such agreement when made.” Id.
With the addition of § 8(3), the Wagner Act covered “the closed and union shop, as well
as less onerous union-security arrangements, if they were otherwise legal.” N.L.R.B. v. General
Motors Corp., 373 U.S. 734, 739 (1963); Colgate-Palmolive-Peet Co. v. National Labor
Relations Board, 338 U.S. 335, 361 (1949)(“[T]here is no dispute as to the validity of the closedshop contract as far as the [Wagner] Act is concerned”); Algoma Plywood & Veneer Co. v.
Wisconsin Employment Relations Board, 336 U.S. 301, 307 (1949)(§ 8(3) of the Wagner Act
“disclaims a national policy hostile to the closed shop or other forms of union-security
agreement”).8 Thus, under the Wagner Act employers and qualified unions had “freedom to
select any form of union security upon which they agreed.” Hopfi, supra, at p. 479. Law 130 is
modeled after the Wagner Act.
See, Confederación de Organizadores de Puerto Rico v.
Servidores Públicos Unidos, 181 P.R. Dec. 299, 311, n. 9 (2011)(discussing inception of Law
130)(citing I DEMETRIO FERNÁNDEZ & CELINA ROMANY, DERECHO LABORAL: CASOS
Y
See also, Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 747 (1988)(§ 8(3) of the Wagner Act “permitted
majority unions to negotiate ‘closed shop’ agreements requiring employers to hire only persons who were already
union members”).
8
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MATERIALES 33 (1987)(noting that with some differences, the Wagner Act served as model for
Law 130).9
Between 1935 and 1947, unions flourished to the point that in some industries, “fourfifths of the employees were working under collective bargaining agreements.”
THE
DEVELOPING LABOR LAW, supra, at p. 35. Following World War II, a wave of strikes shut down
steel mills, seaports, automobile assembly plants and other industries critical to the postwar
conversion of the United States economy. Id. The disorderly state of industrial relations and
resulting public indignation toward union activity created important issues for the midterm
elections of 1946, which resulted in a shift of legislative majorities in both houses of Congress
for the first time since 1930. Id. at 35-36. The shift led to a rethinking in policy, and to the
enactment in 1947 of the Labor-Management Relations (“Taft-Hartley”) Act, Pub. L. No. 80101, 61 Stat. 136 (current version at 29 U.S.C. §§ 141-197).
With the Taft-Hartley Act, Congress re-lettered § 8(3) of the Wagner Act as § 8(a)(3), to
specify that union security agreements could not require union membership as a condition of
employment until “on or after the thirtieth day following the beginning of such employment or
the effective date of such agreement, whichever is later . . . .” 29 U.S.C. § 158(a)(3). In this
way, Congress “outlawed the closed shop.”
Kenneth G. Dau-Schmidt, Union Security
Agreements under the National Labor Relations Act: The Statute, The Constitution, and the
Court’s Opinion in Beck, 27 HARV. J.
ON
LEGS. 51, 59 (1990). Further, Congress restricted
union discretion under union security agreements to the enforcement of the obligation to pay
9
The correct citation, however, is to page 39.
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dues. Id. at 60. To boot, Congress adopted § 8(b)(2), to prohibit a union from causing or
attempting to cause an employer to discriminate against an employee in violation of § 8(a)(3).
Id.10
Into the bargain, Congress “intended to accomplish twin purposes.” General Motors, 373
U.S. at 740-741. First, to eliminate the most serious abuses of compulsory union membership by
abolishing the close shop. Id.11 Second, to handle the “free rider” problem, as in the absence of
a union security agreement, the non-union employees reap the benefits of union representation
without sharing in its cost. Id. So, the Taft-Hartley amendments ended up permitting voluntary
agreements requiring such forms of compulsory membership as the union shop or maintenance
of membership. Id. at 741. But union membership as a condition of employment was whittled
down to its financial core. Id. at 742. Hence, union security agreements could not be used for
any purpose “other than to compel payment of union dues and fees.” Radio Officers’ Union of
Com. Telegraphers Union, A.F.L. v. N.L.R.B., 347 U.S. 17, 41 (1954).12 The Puerto Rico
10
Even though the Taft-Hartley Act is not limited to regulation of union security agreements, the full scope of the
statute need not be considered here.
By some accounts, prior to 1947, “unions abused closed shop agreements by arbitrarily preventing individuals
from obtaining employment by refusing union membership, as well as causing workers to lose their jobs by
expelling them from the union without justification.” Charles R. Virginia, Communications Workers v. Beck:
Supreme Court Throws Unions Out on Street, 57 FORDHAM L. REV. 665, 669 n. 31 (1989). Along the same line,
Congress determined that “the closed shop and the abuses associated with it ‘create[d] too great a barrier to free
employment to be longer tolerated.’” Beck, 487 U.S. at 748 (citing S.Rep. No. 105, 80th Cong. 1st Sess., 6
(1947)(S.Rep.), Legislative History of Labor Management Relations Act, 1947 (Committee Print complied for the
Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, p. 412 (1974)(Leg.Hist))(brackets in
original).
11
12
See also, Marquez v. Screen Actors Guld, Inc., 525 U.S. 33, 37 (1998)(noting that under § 8(a)(3) a union may
negotiate a clause requiring membership in the union, but “an employee can satisfy the membership condition by
paying to the union an amount equal to the union’s initiation fees and dues”); GORMAN & FINKIN, supra at 899
(“The Taft-Hartley provisions of 1947 effectively limited union security in two ways: (1) the employer could hire
persons other than union members (although they could be required to ‘join’ the union within thirty days) and thus
deprive the union of control over the referral of job applicants; but (2) once hired, an employee need not, in order to
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
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Legislature did not amend Law 130 to incorporate the Taft-Hartley amendments to the National
Labor Relations Act (“NLRA”).
In the interval, employers and employees “were not always willing to give the unions
maintenance of membership or union shop agreements.” Hopfi, supra, at p. 479. The unions
sought other arrangements which would be more palatable yet would provide the type of security
they wanted. Id. Such arrangement would not only have to be acceptable to both the employers
and the employees but would have to be legal. Id. The alternative was the agency shop, which
began to be used more frequently even though it had not been explicitly authorized by Congress.
Id. at pp. 479, 488. Still, the Supreme Court validated the arrangement, which is less intrusive
on employees than other modalities of union security agreements, noting that it “places the
option of membership in the employee while still requiring the same monetary support as does
the union shop,” and as such, serves “the desire of Congress to reduce the evils of compulsory
unionism while allowing financial support for the bargaining unit.” General Motors, 373 U.S. at
744.13
retain his or her job, attend union meetings, refrain from criticizing union leadership and otherwise maintain good
standing in the union, but need merely ‘tender the periodic dues and initiation fees uniformly required’ of union
members”).
13
In General Motors, 373 U.S. 734, the employer refused to bargain with the union over an agency shop
arrangement, arguing that because the agency shop does not require membership, it was not allowed under Section
8(a)(3) of the Taft-Hartley Act. Id. at 741-742. The Supreme Court found nothing in the provision’s legislative
history indicating that Congress intended to validate only the union shop and simultaneously to abolish in addition to
the closed shop, all other union-security agreements permissible under state law. Id. at 741. So, it held that, as the
Taft-Hartley amendments had whittled the term “membership” down to its financial core of merely the obligation to
pay dues, the agency shop served Congressional objectives, and accordingly sustained the National Labor Relations
Board’s decision ordering the employer to bargain with the union over the agency shop agreement. Id. at 736-738,
740-745. Neither the abuses at which those amendments were aimed, nor the solution devised by Congress “were
related to the agency shop or the obligation to pay dues.” Dau-Schmidt, supra, at p. 23. As with other legislative
enactments, congressional action reflected a compromise, one between those in Congress who opposed union
security agreements and those who wanted no restraints on such agreements. Id. at 21.
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de la Autoridad de Acueductos y Alcantarillados, et al.
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In 1951, Congress modified § 2 Eleventh of the RLA to make it very similar to § 8(a)(3)
of the NLRA, as amended by the Taft-Hartley Act, except that § 2 Eleventh explicitly preempts
contrary state laws.
See, 45 U.S.C. § 152 Eleventh.
As mentioned earlier, prior to the
amendment the RLA “prohibited union shop agreements.” Hanson, 351 U.S. at 231. Thus, with
the 1951 amendment, Congress provided for the same sort of union security agreements under §
2 Eleventh “as it had permitted under [§] 8(a)(3) of the NLRA.” Dau-Schmidt, supra, at 6.
C. Caselaw
The statutory constructions of both § 8(a)(3) and § 2 Eleventh “sparked disputes between
nonunion employees and their employers,” leading to litigation to determine the extent and
constitutionality of union security agreements under those provisions. Dau-Schmidt, supra, at 6.
The test came first in Hanson, 351 U.S. at 225. There, non-union railroad employees sued their
employer and labor organizations representing various groups of railroad employees in state
court to enjoin application and enforcement of a union shop agreement entered into pursuant to
the RLA. Id. at 227. The state supreme court held that the union shop agreement violated the
First Amendment in that it deprived the employees of their freedom of association and violated
the Fifth Amendment to the extent it required members to pay for things beyond the cost of
collective bargaining, and there was no valid federal law to supersede the right to work provision
of the state constitution. Id. at 717. The Supreme Court reversed the state supreme court.
First, the Supreme Court observed that the union shop provision negotiated by the
employer and the unions in an agreement made pursuant to the RLA had the imprimatur of
federal law, and by the force of the Supremacy Clause could not be made illegal by any
provision of state law. Id. at 232. Second, as for the right to work included in the concept of
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de la Autoridad de Acueductos y Alcantarillados, et al.
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liberty within the meaning of the Due Process Clause, the Court pointed out that trade unionism
strengthened that right, and Congress could validly believe that financial support for the union
would help ensure the right to work in and along the arteries of interstate commerce. Id. at 234235. Third, the Court noted that Congress endeavored to safeguard against the possibility that
compulsory union membership would be used to impair freedom of expression by making it
explicit that no conditions to membership may be imposed except with respect to initiation fees,
periodic dues, and assessments, which the Court found acceptable, so long as those items were
imposed for purposes germane to collective bargaining. Id. at 238. Fourth, on the record before
it, the Court found no infringement of First Amendment rights. Id. However, the Court warned
that its decision would not prevent a different finding in a future case if dues, fees, or
assessments were used as a cover for forcing ideological conformity or other action in
contravention of the First Amendment. Id. To conclude, the Court held that the requirement of
financial support for the collective bargaining agency by all who received the benefits of the
agency’s work was within the power of Congress under the Commerce Clause and did not
violate either the First or Fifth Amendments. Id.14
Five years later, in Street, 367 U.S. at 740, the Supreme Court considered another case in
which workers objected to a union security clause. In that case, plaintiffs challenged in state
court the constitutionality of an agency shop agreement negotiated under § 2 Eleventh of the
14
In Harris v. Quinn, 573 U.S. 616 (2014), the Supreme Court characterized Hanson’s First Amendment analysis as
“thin,” and the resulting First Amendment holding as “narrow.” Id. at 631. It noted that “all that was held in
Hanson was that [the RLA] was constitutional in its bare authorization of union-shop contracts requiring workers to
give ‘financial support’ to unions legally authorized to act as their collective bargaining agents,” and that the Court
did not suggest that ‘industrial peace’ could justify a law that ‘forces men into ideological and political associations
which violate their right to freedom of conscience, freedom of association, and freedom of thought,’ or a law that
forces a person to ‘conform to [a union’s] ideology.” Id. at 631 (citation omitted; brackets and italics in original).
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
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RLA, complaining that the money each was compelled to pay to hold his job was in substantial
part used to finance the campaigns of candidates for federal and state offices whom the plaintiffs
opposed, and to promote the propagation of political and economic doctrines, concepts, and
ideologies with which they disagreed. Id. at 742-744. The trial court found that the union had
spent a portion of the money it had collected in fees on political activities and entered a judgment
and decree enjoining the enforcement of the clause on the ground that § 2 Eleventh violated the
Federal Constitution to the extent it permitted such use by the union of the fund exacted from the
employees. Id. at 744-745. The state supreme court affirmed the trial court. Id. at 745. The
Supreme Court, however, reversed, recognizing that the case presented constitutional questions
“of the utmost gravity.” Id. at 749. But the Court found it unnecessary to reach those questions.
Id. at 750. Instead, it construed § 2 Eleventh to allow the compulsion of dues for collective
bargaining but not for political purposes. Id. at 768-769. For the Court, this approach eliminated
free riders, without vesting the unions with unlimited power to spend exacted money. Id. at 768.
Next, in Railway Clerks v. Allen, 373 U.S. 113 (1963), the Supreme Court reaffirmed
this approach under § 2 Eleventh, describing union expenditures that could fairly be charged to
all employees in the bargaining unit as those “germane to collective bargaining.” Id. at 121.
Then, in Ellis v. Brotherhood of Railroad, Airline and Steamship Clerks, 466 U.S. 435 (1984),
the Court refined this holding, interpreting § 2 Eleventh to allow compulsion of dues to cover
expenditures necessarily or reasonably incurred by the union for “the purpose of performing the
duties of an exclusive representative of the employees in dealing with the employer on labormanagement issues.” Id. at 448. Subsequently, in Beck, 487 U.S. at 735, the Court interpreted §
8(a)(3) of the NLRA “in the same manner” as it had construed § 2 Eleventh of the RLA on the
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
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Memorandum and Order
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use of compulsory dues to cover union expenditures. Id. at 752, 762-763. By finding a statutory
limit on union expenditures, however, “the Court avoided addressing possible limits imposed by
the Constitution and by the duty of fair representation.” Virginia, supra, at p. 666.
Nevertheless, the constitutional issue was unavoidably presented in Abood, 431 U.S. at
209. There, the Supreme Court held that under the First Amendment, a public employer may
require non-union members in a bargaining unit to pay fees to the union for costs incurred in the
collective bargaining process, but not to contribute to the union’s political and ideological
projects. Id. at 224-225. The Court observed that compelling employees to financially support
their collective bargaining representative impacted their First Amendment interests (id., at 222),
but that the desirability of labor peace and the prevention of free riding justified authorization of
the agency shop in public employment. Id. at 224-225.15
Over the years, the Supreme Court “cited Abood favorably numerous times.” Harris, 573
U.S. at 669 (Kagan, J. dissenting). But in 2012 the Court decided Knox v. Serv. Emps. Int’l
Union, Loc. 1000, 567 U.S. 298 (2012), observing that Abood’s “[a]cceptance of the free-rider
argument as a justification for compelling non-members to pay a portion of union dues”
represented something of an anomaly, given that such free-rider arguments “are generally
insufficient to overcome First Amendment objections.” Id. at 311. Moreover, in discussing the
agency-shop, the Court pointed out that compulsory subsidies for private speech are subject to
By “labor peace,” the Abood Court meant avoidance of the conflict and disruption that it envisioned would occur
if the employees in a unit were represented by more than one union. See, 431 U.S. at 220-221 (describing concept).
In such a situation, the Court predicted, inter-union rivalries would foster dissension within the work force, and the
employer could face conflicting demands from different unions. Id. Confusion would ensue if the employer entered
into and attempted to enforce two or more agreements, specifying different terms and conditions of employment. Id.
And a settlement with one union would be subject to attack from a rival labor organization. Id.
15
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de la Autoridad de Acueductos y Alcantarillados, et al.
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“exacting First Amendment scrutiny” (id., at 310), a level of scrutiny that Abood did not apply.
See, Abood, 431 U.S. at 245 (Powell, J., concurring in judgment).
In 2014 the Supreme Court expressed in Harris, 573 U.S. at 636, that Abood
fundamentally misunderstood earlier cases concerning laws authorizing compulsory fees in the
private sector; failed to appreciate the difference between the core union speech involuntarily
subsidized by dissenting public-sector employees and the core union speech involuntarily funded
by their counterparts in the private sector; failed to appreciate the difficulty of distinguishing
between collective bargaining and politics in the public sector; did not anticipate the magnitude
and practical administrative problems that would result in attempting to classify public-sector
union expenditures as either chargeable or nonchargeable; did not foresee the practical problems
that would face objecting nonmembers; and wrongfully assumed that a union or agency shop is
necessary to exclusive representation.
Id. at 635-638.
Still, the Court stopped short of
overruling Abood because it was not necessary to resolve the issue in Harris, which was whether
the First Amendment permits a State to compel personal care providers who were not fullfledged public employees, to subsidize speech on matters of public concern by a union that they
did not wish to join or support. Id. at 620-622, 645 n. 19.16
In 2015, the Supreme Court granted certiorari in Friedrichs v. Cal. Tchrs. Ass’n, 578 U.S.
1 (2016), to resolve the question of “whether Abood . . . should be overruled and public-sector
‘agency shop’ arrangements invalidated under the First Amendment.” Petition for Cert. at (i),
Friedrichs, 2015 WL 393856 (Jan. 26, 2015). After the passing of Justice Scalia, the Court split
16
Plaintiffs were not considered full-fledged public employees because even though the State paid for their services,
the State’s customers were responsible for controlling all aspects of their employment relationship. See, Harris, 573
U.S. at 620-622 (describing customers’ employer status),
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de la Autoridad de Acueductos y Alcantarillados, et al.
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Memorandum and Order
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4-4 on this question. See, Friedrichs, 578 U.S. at 1. And at this crossroads, the Court decided
Janus, overruling Abood. See, Janus, 138 S.Ct. at 2486 (stating it so). In Janus, the Court dealt
with a state law requiring non-union, public-sector employees in the bargaining unit to pay,
consistent with Abood, fees to the union for costs incurred in the collective bargaining process.
Id. at 2478. All the same, the Court referred to Abood as an “anomaly” in First Amendment
jurisprudence (id., at 2483); noted that it was “not well reasoned” (id., at 2481); found it
“unworkable” (id. at 2486); and considered it as an “outlier” in First Amendment cases (id., at
2482). Correspondingly, the Court held that public sector agency shop arrangements violate the
First Amendment; states and public sector unions may no longer deduct or collect agency fees
from nonconsenting employees; and neither an agency fee nor any other payment to the union
may be deducted or collected from a non-member’s wages unless the employee affirmatively
consents to pay. Id. at 2478, 2486. Most important, the Court’s reasoning reflects the interplay
of separate but correlated premises.
First, public employees are entitled to the protection of the First Amendment, which is
significantly impinged when these employees are required to pay agency fees to financially
support a union that takes positions during collective bargaining that have “powerful political
and civic consequences,” including positions on how money is managed, which impacts a
government unit’s budget and capacity to provide services to the public. Janus, 138 S.Ct. at
2464. As such, it bestows political valence upon public-sector collective bargaining, turning it
into inherently political speech. Id. at 2480, 2483.17 And the First Amendment does not permit
17
Among the variables bearing on this subject, the Supreme Court mentioned wages, holiday and overtime pay,
promotion policies, financing of pensions and health insurance, as well as issues surrounding tenure, discipline,
dismissals, and handling of grievances, all of which influence how money is spent. See, Janus, 138 S.Ct. at 2474-
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the government to force a public employee to pay for that speech, even if the government thinks
that the speech promotes the interests of the employee who does not wish to pay. Id. at 2467.
Second, neither “labor peace” nor the worth of preventing “free riders” justifies forcing
payment of agency fees on nonconsenting public employees. Janus, 138 S.Ct. at 2465-2466.
Labor peace may serve as a compelling state interest but may be achieved through means
significantly less restrictive of first amendment freedoms than the assessment of agency fees. Id.
Designation of a union as the exclusive representative of all employees in a unit is not dependent
on a union or agency shop. Id. at 2465, 2480, 2483. In addition, avoiding free riding is not a
compelling interest.
Id. at 2466.
As such, it is generally insufficient to overcome first
amendment constraints, and has led to problems of its own. Id.
To accommodate the goal of counteracting free riding with the First Amendment interests
of employees compelled to financially support a union, Abood relied on a line between
chargeable union expenditures (that is, expenditures for collective-bargaining, contract
administration, and grievance adjustment purposes), and nonchargeable union expenditures (i.e.,
expenditures for political or ideological purposes). See, Abood, 431 U.S. at 232-236 (discussing
topic). That line, however, has proved “impossible to draw with precision,” suffering from a
degree of “vagueness” that sometimes allows what it should not allow. Janus, 138 S.Ct. at 2481.
In addition, Abood did not foresee the practical problems that would face objecting nonmembers
2477 (noting items). In turn, these items draw attention to sources of funding and may lead to shortfalls and
unsustainable collective bargaining agreements that have been blamed for municipal bankruptcies. Id. at 2483.
From this perspective, union speech in collective bargaining is not a matter of only private interest but of
overwhelmingly public concern. Id. at 2477. Along with affecting how public money is spent, the Court recognized
that union speech in collective bargaining also addresses other matters of public importance, including minority
rights, education, and child welfare. Id. at 2475.
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 23
in trying to understand the validity of a union fee. Id. at 2480-2482. While unions must provide
nonmembers with sufficient information to gauge the propriety of that fee, it has proven difficult
for them to determine whether the figures that unions come up with are even close to the mark
without retaining the services of attorneys and accountants. Id. at 2482. And even with those
services, the evaluation of union-provided figures is difficult and laborious. Id.
Third, considering this landscape, union fees cannot be extracted from “nonconsenting”
public sector employees. Janus, 138 S.Ct. at 2481. Neither an agency fee nor any other payment
to a union may be deducted from a nonmember’s wages, nor may any attempt be made to collect
such a payment unless the employee consents to pay.
Id.
Consent, however, cannot be
presumed. Id. To the effective, it must be freely given and shown by clear and compelling
evidence. Id. Thus, the employee must clearly and affirmatively consent to pay those fees. Id.
D. Parties’ Response to Janus
1.
GOVERNOR
The Governor pointed out that under Janus, a public employee who does not wish to join
a union or who wishes to no longer be a union member has a right to do so and cannot be
required to pay any dues to the union (Docket No. 64, p. 8). Thus, he acknowledged that the
challenged provisions of Law 130 are unconstitutional, and the remedies that plaintiff has
requested should be granted. Id.
2.
PRASA
PRASA stated that although the situation in Janus is distinguishable from the situation in
this case, it would follow the Puerto Rico Secretary of Justice’s lead and prospectively abide by
Janus (Docket No. 70, pp. 8-11). To justify this position, PRASA asserted that it had the
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
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Page 24
obligation to comply with Law 130, which at the time plaintiff initiated this action, was in full
force and effect and, to PRASA’s knowledge, had not been judicially questioned. Id. at 8. From
this perspective, it noted that under Law 130 plaintiff has no right to request unenrollment from
the Union because as negotiated in the CBA pursuant to Law 130, being a member of the Union
is a requirement for employment with PRASA. Id. at 6-8. PRASA explained that is why it had
to withhold union dues from plaintiff’s wages and remit those dues to UIA. Id.18 For PRASA,
Janus does not expressly address these prescripts, as it assumed that public sector employees
have the right to request unenrollment from unions as allowed under Illinois Labor Relations
Act. Id. at 8. Hence, in PRASA’s view, the controversy in Janus was simpler than the one here.
Id. at 6.
At the same time, PRASA mentioned that in the wake of Janus, the Puerto Rico Secretary
of Justice issued an Opinion concluding that the challenged provisions violate the free speech
rights of public sector employees by allowing labor organizations to negotiate all union and
maintenance of membership agreements, and that negotiation of those agreements with
government corporations is impermissible under Janus as an infringement of the employees’
freedom of speech and association (Docket No. 70, p. 9). Further, the Secretary of Justice
explained that as a direct consequence of Janus, union shop clauses in collective bargaining
agreements with government corporations such as PRASA are null, and that any deduction from
an employee’s salary to pay dues to a union must be expressly authorized by the employee, as
18
Relatedly, PRASA argued that it had acted in good faith (Docket Nos. 190, p. 10; 70, p. 8). Plaintiff took issue
with this proposition, arguing that PRASA acted in bad faith, blatantly disregarding his requests after he confronted
it with the unconstitutionality of Law 130, the CBA’s conforming provisions, and PRASA’s practices (Docket No.
204, p. 4). Additionally, he asserted that good faith compliance with an overruled law is not a cognizable defense
under 42 U.S.C. § 1983, and that state actors who deprive persons of their constitutional rights are liable for
enforcing unconstitutional laws even when following faulty precedent. Id. at 7-8.
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de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 25
otherwise, the employer would be infringing upon the employee’s constitutional right to freedom
of speech. Id. at 9-10.19
On this basis, PRASA had no objection to entry of a prospective declaratory judgment as the
one entered in Janus regarding the unconstitutionality of the statutory and contractual provisions
in question (Docket No. 70, p. 10-11). Even more, it stated to have discontinued deducting
union fees from plaintiff and nonconsenting employees. Id. at 11. That said, it objected to
plaintiff’s request for restitution of all union dues paid from the date that he resigned from the
Union plus interest and damages. Id. In the alternative, however, it submitted that UIA would
be liable for them. Id.
3.
UIA
For UIA, Law 130 does not fall under the aegis of Janus but under that of Hanson, 351
U.S at 225; Street, 367 U.S. at 740; and Allen, 373 U.S. at 113 (Docket No. 65, pp. 13-17). This,
because Law 130 applies not to the central or municipal governments, but to private-sector
entities and government corporations and instrumentalities that operate as private businesses. Id.
In UIA’s view, that is the case with PRASA, which, it claims, must be considered a private
employer rather than a public sector employer within the scope of Janus (Docket Nos. 76, pp. 78; 89, p. 3).
To this end, UIA pointed out that PRASA is organized and operates as a private
corporation funded by its own activities, with a budget derived from its income (Docket Nos. 65,
pp. 6, 24; 89, p. 10). Besides, it has the capacity to sue and be sued; to enter into contracts; to
19
In the same manner, in July 2018, the Puerto Rico Secretary of Labor and Human Resources and the Director of
the Office for the Administration and Transformation of Human Resources of the Government of Puerto Rico issued
Special Joint Memoranda (Nos. 2018-01 and 2018-02), laying out the policies and procedures to enforce Janus for
employees of all public sector agencies and government corporations in Puerto Rico.
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
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Memorandum and Order
Page 26
purchase and dispose of property, over which it has complete dominion; to borrow money; and to
issue bonds for any of its corporate purposes (Docket No. 76, p. 5). As well, none of PRASA’s
employees is elected or directly responsible to the electorate, and its obligations are exclusively
its own and do not bound the government of Puerto Rico (Docket No. 65, pp. 6-8). Those
obligations are paid for with PRASA’s funds (Docket No. 89, p. 11). And those funds are not
part of the operating funds of the government of Puerto Rico (Docket Nos. 65, p. 9; 89, p. 11).
Rather, they remain under PRASA’s control and are deposited in accounts under PRASA’s
name. Id. Over and above, PRASA does not have the power to levy taxes or pledge the credit of
Puerto Rico (Docket No. 65, p. 7).
According to UIA, PRASA’s focus is on profitability as a corporate entity operating in a
market (Docket Nos. 65, p. 6; 76, p. 7). PRASA charges for the services it renders and because
it deals with revenue bonds, it must collect their total value to allow, as in the case of a similar
private financing, the adequate payment of the debt (Docket No. 76, p. 5). The wages, benefits,
and pensions that it pays to union members do not originate in Puerto Rico government coffers,
and do not have the same political valence as the ones that the Supreme Court expressed concern
about (Docket No. 65, p. 9). To UIA’s way of thinking, the fact that unsustainable collective
bargaining agreements could lead to bankruptcy, rings hollow in the case of PRASA (Docket No.
89, p. 11).
Furthermore, UIA observed that in light of PRASA’s characteristics, the entity’s
employees cannot be properly considered public sector employees (Docket No. 65, p. 5). It
noted that consistent with this feature, PRASA’s employees are not subject to the Personnel Law
of the Commonwealth of Puerto Rico, which differentiates them from their counterparts in the
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v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
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central government, whose labor grievances are heard by the Commonwealth’s Public Service
Labor Commission, as opposed to those of PRASA’s employees and employees of other
government corporations that operate as private businesses, which are heard by the Labor
Relations Board of Puerto Rico (Docket Nos. 65, pp. 9-12; 89, p. 6). Along the same line, it
mentioned that unlike with central government employees, §§ 17 and 18 of Article II of the
Constitution of Puerto Rico grant government corporation employees the right to organize; to
engage in collective bargaining; to participate in concerted activities; and to strike (Docket No.
76, pp. 5-6).20
UIA argued that based on these elements, it cannot be regarded as a public-sector union
(Docket No. 65, p. 2). It posited that, by extension, its relationship with PRASA is the same as
that of any union with a private employer, and that its members are basically in the same position
as the private sector union members of unions engaged in collective bargaining. Id. at 6. Thus,
it asserted that collective bargaining with PRASA cannot be considered political speech any
more than collective bargaining between a union and a company in the private sector can be
considered political speech. Id. at 5. As such, it claimed that collective bargaining here does not
unduly infringe upon the First Amendment rights of PRASA employees. Id. at 2-5, 24. From
UIA’s frame of reference, applying Janus to PRASA’s employees would be unwarranted and
short sighted; declaring Law 130 unconstitutional under Janus would be tantamount to declaring
similar dispositions of the NLRA unconstitutional; and the Puerto Rico Secretary of Justice’s
opinion should be rejected as faulty (Docket Nos. 76, pp. 5-7; 89, p. 2).
Contrary to UIA, PRASA acknowledged that government corporations’ employees are considered public
employees (Docket No. 70, p. 1, n. 1).
20
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de la Autoridad de Acueductos y Alcantarillados, et al.
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Finally, UIA brought forth the fact that Law 130 is modeled after the Wagner Act, which
recognized the legality of the closed and agency shop (Docket No. 76, pp. 12-13). For UIA, that
was the policy choice that the Puerto Rico Legislature made, and it is a choice that should not be
questioned by this court. Id. at 13.21 UIA, however, expressed that if the court found Janus
controlling, Janus only requires public employers to prospectively abstain from deducting union
fees from a nonmember’s wages without the employee’s affirmative consent (Docket No. 65, p.
23). And it reasoned that this should end the matter, simply barring PRASA from deducting
agency fees from nonconsenting nonmembers but leaving intact exclusive representation and
other items such as PRASA’s agreement with UIA to deduct dues from union members’ wages.
Id. at 22-24.
4.
AMICUS I
Amicus I alleged that Janus does not apply here, because in Janus the plaintiff was
employed by a state government agency, whereas plaintiff is employed by a corporation of the
Government of Puerto Rico that operates as a private business (Docket No. 108, pp. 2-3). In this
connection, Amicus I observed that government corporations like PRASA function as private
companies that provide goods and/or services to generate their own revenue, which is kept
separate from that of the government of Puerto Rico; their officers are not elected officials and
are not subject to confirmation by the legislative branch even though they are appointed by the
executive branch; their management is not directly accountable to the electorate; they do not
21
In addition, UIA stated that, as in the private sector, PRASA and UIA may negotiate agency shop provisions
(Docket No. 65, pp. 15-16, 18). As plaintiff, however, observed, the contested provisions are not “agency shop”
clauses where employees can refrain from joining a union and instead be required to pay union service fees as a
condition of employment (Docket No. 77, p. 13). Instead, they require full-fledged union membership and payment
of fees as a condition of employment. Id.
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 29
make public policy determinations that correspond to the executive and legislative branches of
government; as opposed to public agencies, they pursue profit in order to provide their
corresponding services to the public; and may issue bonds that are independent from those of the
Commonwealth of Puerto Rico. Id. at 6. So, for Amicus I, decisions undertaken in collective
bargaining do not have any important or crucial political or civic consequences. Id. Likewise, it
claimed that there is no risk that unions may use the dues to promote public policy or political
interests or pursuits. Id. at 5.
As for why the compulsory union membership and fee-paying requirements are
appropriate, Amicus I indicated that because government corporations provide essential services
to the public, Puerto Rico has a compelling interest in preventing labor strife, an interest which,
in its view, goes beyond that of guaranteeing labor peace by avoiding competition among labor
unions (Docket No. 108, pp. 5, 7). This, in Amicus I’s view, to safeguard a labor relations
scheme in which unions are granted the right to exclusive representations; the employees’
constitutional right to strike is accounted for; and all employees in the unit contribute to fund the
collective bargaining process. Id. at 5. In addition, Amicus I expressed that contrary to the
situation in Illinois, Law 333 provides to government corporation employees covered by a
collective bargaining agreement, with safeguards and concrete procedural mechanisms to protect
transparency and compel unions to be open in the use of funds received from fees, allowing
employees to police, investigate, and sanction malfeasance in the use of those funds. Id. at 8. In
consequence, for Amicus I, these elements justify maintaining the existing statutory scheme, for
it duly takes care of plaintiff’s constitutional claims, properly balancing all interests at stake. Id.
at 9.
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 30
5.
AMICUS II
Amicus II argued that the present case differs in meaningful ways from Janus, which
according to Amicus II, does not apply here (Docket No. 128, p. 5). To this end, it observed that
Janus involved a collective bargaining agreement negotiated pursuant to a state law where,
consistent with Abood, employees who declined to join the union could instead pay an agency
fee amounting to a percentage of union dues. Id. Janus, however, went further than Abood,
holding that requiring a public employee to pay even an agency fee as a condition of
employment violates the free speech rights of non-members. Id. at 4-5. So, from Amicus II’s
viewpoint, Janus did not deal with a statute like Law 130, which requires a public employee to
join a union as a condition of employment. Id. at 5-6
6.
PLAINTIFF
First, plaintiff pointed out that government corporations are public employers within the
meaning of the First Amendment and persons acting under color of state law under 42 U.S.C. §
1983 (Docket Nos. 77, p. 3; 112, p. 6). As for PRASA, he noted that it is a government-run
monopoly entrusted with and carrying out the important government function of providing and
helping to provide to the citizenry adequate water, sanitary sewage, and other services or
facilities proper and incidental therefor (Docket No. 77, p. 5). Along this line, PRASA was
created by a legislative act and is overseen by a board of directors, the majority of whom are
appointed by the Governor with the advice and consent of Puerto Rico’s Senate and subject to
removal proceedings at the instance of the Governor. Id. at 4. Further, Puerto Rico’s Legislature
delegated to PRASA the power of eminent domain and the power to enact rules and regulations
regarding the use and conservation of water and the disposal of sewage, all of which have the
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 31
force of law. Id. at 4-5. Similarly, PRASA’s contracts with aqueduct systems in Puerto Rico are
subject to the approval of the Governor and the Legislature, and its property, income, bonds,
obligations, and activities are exempt from taxation. Id. at 5. Plaintiff added that, in this setting,
PRASA’s separation of budget and finances from the central government is of no consequence to
its status as a public employer. Id. at 6. Correspondingly, he asserted that like the employees of
other government corporations, PRASA’s employees are public employees entitled to the
protection of the First Amendment and, that being the case, PRASA cannot curtail his freedoms
of speech and association (Docket No. 112. pp. 13-15).
Second, plaintiff complained that despite this constitutional prohibition, he was forced
not only to pay union fees as a condition of employment, but also to be a full-fledged union
member (Docket No. 112, p. 13). On these elements, he indicated that collective bargaining in
government corporations that perform essential government services like PRASA has powerful
political and civic consequences to the government and citizens, for it revolves around budgetary
issues and the performance of government services to the people (Docket No. 77, p. 6). Hence, it
has political valence, touching on key items like the cost of employees’ wages, benefits, and
pensions, and on how much PRASA raises and allocates money among those items, and between
operations and infrastructure, which impacts how much PRASA charges to the public, its credit
rating and financial stability or solvency. Id. at 7. In consequence, plaintiff claimed that under
Janus he cannot be forced to pay agency fees and, by extension, be compelled to be a fullfledged union member, which is far more restrictive of First Amendment freedoms than the act
of simply requiring payment of agency fees (Docket Nos. 77, p. 11; 112, pp. 13-14).
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 32
Third, from plaintiff’s standpoint, there is no justification for these burdens, which cannot
stand unless they survive exacting scrutiny (Docket No. 112, p. 9). In other words, they must
serve a compelling state interest achieved through means significantly less restrictive of
associational freedoms than are present here. Id. Along this line, plaintiff asserted there has
been no showing that forced union membership and union fee deductions serve a compelling
state interest. Id. He reasoned that as the Supreme Court did in Janus, the court may assume that
labor peace is a compelling interest, but as the Court concluded in Janus, that justification falls
apart because it is predicated on unfounded fears of confusion, disruption, and dissension in the
work force. Id. at 10-11. Likewise, he stated that rebranding labor peace as the need to prevent
labor strife does not explain why forcing public sector employees to become full-fledged union
members and pay union dues is necessary to accomplish that objective. Id.22 In the same vein,
he argued that guaranteeing unions’ ability to obtain non-members’ reasonable contribution of
union dues merely resurrects the free rider rationale that Janus rejected. Id. at 12. And he
contended that the forced membership and fee payment requirements of Law 130 are nowhere
near being the least restrictive means for achieving whatever compelling state interests Puerto
Rico might have on this matter. Id. at 12, 14. For him, forcing nonmembers to pay fees was the
last vestige of union membership requirements “now swept away into obsolescence” by Janus
(Docket No. 77, p. 12).
Plaintiff highlighted that no one in this case has explained how “labor strife” is distinct from “labor peace” or
shown that it raises any distinct concerns, and that whatever the “labor strife” context of “labor peace” might be,
there has been no spelling out of how forcing public sector employees to become full-fledged union members or pay
union fees is even related to employees’ right to strike or otherwise preventing “labor strife.” Id. at 11.
22
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 33
E. Motion for Summary Judgment
After discovery, plaintiff moved for summary judgment, basically relying on the
arguments he had advanced in previous stages of the litigation (Docket No. 173). PRASA
responded, noting in part that because it stopped requiring employees to be part of a union as a
condition of employment, the action is moot as to it and should be accordingly dismissed
(Docket No. 190, p. 12). UIA asked for dismissal on mootness grounds (Docket No. 191, p. 2).
Plaintiff opposed PRASA’s and UIA’s requests (Docket Nos. 204 and 205).
F. Mootness
Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and
“Controversies.” U.S. CONST. art. III, § 2. The doctrine of mootness enforces the mandate that
“an actual controversy must be extant at all states of the review, not merely at the time the
complaint is filed.” Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003). If events have
transpired “to render a court opinion merely advisory, Article III considerations require dismissal
of the case.” Am. Civ. Liberties Union of Mass. v. U.S. Conference of Bishops, 705 F.3d 44, 5253 (1st Cir. 2012). Moreover, when the issues presented “are no longer live or when the parties
lack a legally cognizable interest in the outcome . . . a case or controversy ceases to exist, and
dismissal of the action is compulsory.” Libertarian Party of N.H. v. Gardner, 638 F.3d 6, 12 (1st
Cir. 2011). The party raising a mootness defense “has the burden of establishing the facts
necessary to sustain that defense.” Ramírez v. Sánchez-Ramos, 438 F.3d 92, 100 (1st Cir. 2006).
To satisfy this burden, the challenger must show that, after the case’s commencement,
intervening events have blotted out the alleged injury and established that the conduct
complained of cannot reasonably be expected to recur.
Id. If it is sufficiently plain that
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 34
intervening events have wiped the slate clean, the case has become moot. Id. Such is the case
here.
First, it is undisputed that: (1) in July 2018, UIA accepted plaintiff’s resignation from the
union; (ii) since then, union dues and fees have not been deducted from his pay; and (iii) he has
remained employed with PRASA (Docket No. 192, p. 6).
Neither PRASA nor UIA has
backtracked on this, and, on the contrary, both have accepted the voluntary —not compulsory or
forced— nature of union membership and union dues and fees deductions from PRASA
employees. Where the challenged measures no longer adversely affect the plaintiff’s primary
conduct, “injunctive relief is unavailable.” Harris v. Univ. of Mass. Lowell, 43 F.4th 187, 192
(1st Cir. 2022). Second, declaratory relief can only survive a mootness challenge where the facts
show that there is a substantial controversy of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment. Id. The situation that plaintiff invoked to justify declaratory
relief no longer exists. Third, a claim for damages “will keep a case from becoming moot where
equitable relief no longer forms the basis of a live controversy.” Thomas R.W. v. Mass. Dep’t.
of Ed., 130 F.3d 477, 480 (1st Cir. 1997). But UIA requested authorization to deposit in court —
and deposited— the amount corresponding to union dues and fees deducted from plaintiff’s
wages from the point that he resigned from UIA and until PRASA ceased collecting them, plus
interest.23
Plaintiff also sought nominal damages (Docket No. 1). These are damages “awarded by default until the plaintiff
establishes entitlement to some other form of damages, such as compensatory or statutory damages.” Uzuegbunam
v. Preczewski, 592 U.S. ___, 141 S.Ct. 792, 800 (2021). As such, they are “an alternative to actual damages under §
1983.” Lamberty v. Conn. State Police Union, 2018 WL 5115559, *7 (D. Conn. Oct. 19, 2018); Cortés-Reyes v.
Salsas Quintana, 608 F.3d 41, 53, n. 15 (1st Cir. 2010)(“[I]f a jury in a case brought pursuant to § 1983 finds a
violation of the plaintiff’s constitutional rights but fails to award compensatory damages, a plaintiff may ask the trial
court for nominal damages on the occasion of, or immediately after, the return of the verdict”)(emphasis in original).
23
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 35
Nonetheless, plaintiff alleges that the case is not moot relying, among other things, on an
exception to the mootness doctrine for situations in which the defendant voluntarily ceases the
challenged conduct. To this extent, he argues that PRASA and UIA can go back to their old
ways and the Secretary of Justice can change the opinion upon which PRASA relied to change
course (Docket Nos. 204, pp. 8-10; 205, pp. 6-7) Where a defendant’s voluntary cessation to
injury-causing conduct is alleged to have mooted a case, the defendant must show that the “the
allegedly wrongful behavior could not reasonably be expected to recur.” Mangual, 317 F.3d at
60. The requirement reflects the principle “that a party should not be able to evade judicial
review, or to defeat a judgment, by temporarily altering questionable behavior.” Am. Civ.
Liberties Union of Mass., 705 F.3d at 54. By extension, it serves to prevent a manipulative
litigant from immunizing itself from suit indefinitely, altering its behavior long enough to secure
a dismissal and then reinstating it immediately after. Id. at 54-55.
Still, PRASA and UIA have done more than pay lip service to plaintiff’s concerns. They
changed their posture approximately 60 months ago to discontinue compulsory union
membership and collection of union dues and fees from members of the bargaining unit who do
not belong to the UIA and do not affirmatively consent to pay those amounts. Since then, Puerto
Rico has had three governors: Ricardo Rosselló-Nevárez, Wanda Vázquez-Garced, and Pedro
Pierluisi-Urrutia; and two PRASA Executive Presidents: Eng. Elí Díaz-Atienza and Eng. Doriel
Pagán-Crespo. The succession has not resulted in a reversal of policy leading to the situation
that brought plaintiff to court. As for the Puerto Rico Secretary of Justice’s Opinion, it was
Given that plaintiff quantified the amount of union dues and fees withheld from his wages from the point that he
attempted to resign from the Union until PRASA ceased deducting them (Docket No. 82, ¶ 84), and UIA
unconditionally deposited with the court that amount plus interest, the request for payment of nominal damages does
not prevent dismissal on grounds of mootness.
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 36
issued by then Secretary Wanda Vázquez-Garced. From that point, there have been three
Secretaries of Justice in the Commonwealth: Wanda Vázquez-Garced, Dennise Longo-Quiñones
and Domingo Emmanuelli. Yet, there is no indication that the Secretary’s Opinion has been
qualified or repealed.24
In all, the case is moot. See, LaSpina v. SEIU Pa. State Council, 985 F.3d 278, 283-284,
289 (3rd Cir. 2021)(union’s acceptance of employee’s resignation from union and employer’s
stopping deductions of union fees from employee’s wages following Janus rendered moot action
against union and employer for injunctive relief and refund of membership dues deducted from
plaintiff’s paycheck after she resigned her union membership); Branch v. Commonwealth
Employment Rel. Bd., 120 N.E.3d 1163 (Mass. 2019)(challenge to state statute’s agency-fee
provisions rendered moot by union’s cessation of agency-fee collection in response to Janus and
issuance by the state attorney general and labor relations department of guidance categorically
prohibiting agency-fee collection).
IV.
CONCLUSION
For the reasons stated, the case must be dismissed. Dismissal will be without prejudice to
allow plaintiff to return to court in the event PRASA reengaged in the conduct that led plaintiff
to initiate this action.
The Secretary of Justice’s opinions are not a statute, an ordinance, or a regulation, and neither are PRASA’s and
UIA’s positions on compulsory union membership and fees deductions as a condition of employment in PRASA.
Take them as policy. But even a change in policy may render a case moot when: (1) the policy change is evidenced
by language that is “broad in scope and unequivocal in tone;” (2) the policy change “fully addresses all of the
objectionable measures” that government officials took against the plaintiff in the case; (3) the case in question was
“the catalyst” for the agency’s adoption of the new policy; (4) the policy has been in place “for a long time” when
the court evaluates whether the case is moot; and (5) since the policy’s implementation, the agency’s officials “have
not engaged in conduct similar” to that challenged by plaintiff. Rosebrock v. Mathis, 745 F.3d 963, 972 (9th Cir.
2014). Overall, the record satisfies these criteria.
24
Reynaldo Cruz
v. Unión Independiente Auténtica de los Empleados
de la Autoridad de Acueductos y Alcantarillados, et al.
Civil No. 17-2261 (PAD)
Memorandum and Order
Page 37
SO ORDERED.
In San Juan, Puerto Rico, this 17th day of October, 2023.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge
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