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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JULIAN BROWN, a certified Homecare,

worker of Oregon, Case No. 6:15-cv-01523-MC

Plaintiff, OPINION & ORDER

v. 

KATE BROWN, in Her Official Capacity as

Governor of the State of Oregon, et al.,

Defendants.

_____________________________

MCSHANE, Judge:

Since 2011, plaintiff Julian Brown has worked as a certified home healthcare worker 

(“HHW”) for his father. Brown seeks to certify a class of HHWs who had “fair share” fees 

deducted without consenting in writing to union membership and/or after resigning their union 

membership. Like every other post-Harris court considering similar motions to certify classes of 

HHWs, I conclude Brown’s motion for class certification, ECF No. 4, fails to satisfy the 

requirements of rule 24(b)(3).

BACKGROUND

Since 2001, pursuant to the Oregon Constitution, all HHWs are represented by a single 

representative. That year, the HHWs voted to have defendant Service Employees International 

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Union Local 503 (the “Union”) represent them in negotiations with the state. The state pays 

HHWs, in part to avoid higher costs if the disabled or elderly had to go instead to nursing homes. 

Although the Union negotiates collective bargaining agreements for all HHWs with the 

state, not all HHWs are members of the Union. Union members pay union dues. Under the 

Supreme Court’s decision in Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), Oregon, along 

with many other states, withheld “fair share” fees from non-union members and sent those fees 

to the union. The fair share fees were equal to the dues paid by union members. In 2014, the 

Supreme Court distinguished Abood and held the First Amendment prohibits withholding fair 

share amounts from those “who do not want to join or support the union.” Harris v. Quinn, 134 

S. Ct. 2618, 2644 (2014). After Harris, Oregon stopped automatically deducting fair-share fees.

In the wake of Harris, the National Right to Work Legal Defense Foundation and the 

Freedom Foundation brought several First Amendment cases around the country that are similar 

to the action here. Although those plaintiffs sought to certify classes similar to the proposed class 

here, to date all have failed. Those cases, while not binding, are indeed persuasive. 

STANDARDS

A plaintiff seeking to certify a class must establish each prerequisite of rule 23(a): 1) 

numerosity; 2) commonality; 3) typicality; and 4) adequacy. Plaintiff’s burden of proof for these 

elements is a preponderance of the evidence. Zinser v. Accufix Research Institute, Inc., 253 F.3d 

1180, 1186 (9th Cir. 2001). The predominance requirement of Rule 23(b)(3) mandates that 

“questions of law or fact common to the class predominate over any questions affecting only 

individual members.” 

“The test of typicality is whether other members have the same or similar injury, whether 

the action is based on conduct which is not unique to the named plaintiffs, and whether other 

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class members have been injured by the same course of conduct.” Wolin v. Jaguar Land Rover 

N. Am. LLC., 617 F.3d 1168, 1175 (9th Cir. 2010). To satisfy this element, Brown must prove 

that he possesses the same interest and suffers the same injury as the putative class members, 

meaning his claims must rest on a common contention. Wal-Mart Stores, Inc. v. Dukes, 131 S. 

Ct. 2541, 2551–52 (2011); Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147 (1982). 

DISCUSSION

As noted, in Abood, the Supreme Court upheld fair share provisions for non-union state 

employees to pay for union work related to CBA negotiations. 431 U.S. at 235-36. The purpose 

of fair share provisions is to prevent non-union members from obtaining a “free ride” by 

receiving benefits bargained for in the CBA without paying union dues. The Harris majority 

concluded Abood applied solely to state employees and not HHWs who, although paid by the 

state, were only quasi employees of the state, i.e., state employees for CBA purposes but 

employees of the patient for most other purposes. Harris held that the First Amendment prohibits 

the collection of union fees from the checks of non-public employees “who do not want to join 

or support the union.” 134 S. Ct. at 2644.

Brown seeks to certify the following class:

all homecare workers who have not consented in writing to membership in SEIU 

503 and/or who have resigned prior membership AND from whom DHS deducted 

monies from their voucher/service payments or “salaries” and remitted the 

deducted monies to SEIU Local 503 and its affiliates. The class includes everyone 

who comes within the class definition at any time from August 12, 2013, until the 

conclusion of this action.

The proposed class here is similar to proposed classes of HHWs other courts have 

declined to certify. See Riffey v. Rauner, 2016 WL 3165725 (N.D. Ill June 7, 2016); Centeno v. 

Inslee, C14-200 (W.D. Wa. Sept. 17, 2015); Schlaud v. Snyder, 785 F.3d 1119 (7th Cir. 2015). 

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Those courts each rejected the plaintiffs’ attempt to broaden Harris by compelling a First 

Amendment violation absent prior express and/or written authorization by the HHW for fair 

share deductions. Brown argues those courts simply got it wrong. I disagree.

In seeking to certify the proposed class, Brown seeks to extend Harris’s holding to the 

conclusion that any fair share deductions without prior written consent equal de facto

constitutional violations. I agree with the three courts listed above and conclude nothing in 

Harris (or constitutional law generally) compels such a result. The holding of Harris could 

hardly be clearer: “The First Amendment prohibits the collection of an agency fee from [HHWs] 

who do not want to join or support the union.” 134 S. Ct. at 2644. The constitutional violation 

discussed in Harris depended not on prior written consent, but on the HHW’s subjective desire 

to join or support the union. Riffey, Centeno, and Schlaud all agree with that conclusion. No case 

supports Brown’s argument for a per se First Amendment violation. At oral argument, I likened 

this situation to one involving mandatory school prayer. While a student not wishing to pray 

would suffer a constitutional violation, a student voluntarily choosing to join the prayer would 

suffer not only no injury, but no constitutional violation in the first place. Likewise, an individual 

with no desire to purchase a firearm does not suffer an injury under the Second Amendment

simply by living in a city with unconstitutional restrictions on handguns. These cases, like the 

case here, necessarily involve questions into the subjective intent or desires of the plaintiffs.

As discussed in the three post-Harris cases deciding this issue, the fact-sensitive inquiry 

involved in determining each proposed class members’ subjective intent has fatal consequences 

to any motion to certify a class like the proposed class here. In Centeno, the district court denied 

a motion to certify the class and then a renewed motion to certify the class. See ECF No. 36-1, 

36-2. Washington had a similar fair share program and, like Oregon, stopped automatic 

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deductions immediately after Harris. Plaintiffs sought to certify a class of “all Individual 

Providers who, at any point from February 2011 to the present, were subjected to the compulsory 

deductions without their explicit consent.” ECF No. 36-1, 3. Judge Pechman concluded plaintiffs 

failed to demonstrate common questions as to class members predominated over questions as to 

individual members.1 While plaintiffs sought to define the class to include HHWs who failed to 

give “explicit consent” to dues deductions, Judge Pechman noted there were other ways than, 

say, signing a union card, to express consent or support for the deductions. The court noted some 

members may have voted in favor of a CBA without joining the union and thus the deductions 

would have been constitutional even though those members may not have provided “explicit 

consent” to the deductions.

Because consent was not understood to be necessary by the Defendants prior to 

Harris, the Court can anticipate pervasive factual disputes about whether 

particular instances of alleged explicit consent (potentially including oral 

representations to a union member) were effective. Plaintiffs themselves dispute 

that consent that postdates deductions is necessarily effective retroactively, thus 

introducing the possibility of factual disputes about whether individual union 

members suffered any injury prior to signing a membership card. Consent is a 

fact-intensive issue even in non-constitutional areas, as courts have seen in 

consumer protection cases involving the Telephone Consumer Protection Act. 

There is no reason to think it would be more easily resolved on a class-wide basis 

here.

Factual questions concerning evidence of consent are likely to dominate the 

inquiry into Defendants’ liability for individual providers’ deductions, so class 

certification is inappropriate on the basis of predominance as well.

ECF No. 36-1, 12-12 (internal citations omitted). Similar hurdles are present here. 

Schlaud, concerning Michigan’s fair share program, is also instructive. Plaintiffs sought 

to certify a class of HHWs who “did not sign authorization cards for the Union or vote in 

 

1

Judge Pechman—and the Schlaud and Riffey courts—also concluded plaintiffs failed to demonstrate the 

“adequacy” prong of rule 23(a)(4). ECF No. 36-1, 10. Although the reasoning of those courts is persuasive, I need 

not decide the issue here as Brown’s motion fails under rule 23(b)(3).

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elections that regarded Union representation or ratification of the Union’s collective bargaining 

agreement.” Schlaud II, 785 F.3d 1119, 1123 (6th Cir. 2015). The Sixth Circuit analyzed Harris

and agreed with the district court that “short of requiring depositions of each provider in the 

proposed subclass, it is impossible to determine the motivations behind each provider’s action 

(or inaction) regarding the Union.” Id. at 1123.2

On remand from the Supreme Court, Riffney, decided less-than one month ago, also 

points out fatal flaws similar to Brown’s motion to certify. Riffney also concerned arguments 

regarding per se constitutional violations. Judge Manish S. Shaw described plaintiffs’ argument:

Plaintiffs believe that a First Amendment injury occurs whenever an individual is 

compelled to subsidize the speech of another without prior authorization. And 

because the union received fair-share fees from the nonmember personal 

assistants without their affirmative consent, plaintiffs conclude that all 

nonmember personal assistants who paid fair-share fees suffered First 

Amendment injuries—their money was wrongfully seized whether they agreed 

with the union or not.

2016 WL 3165725 at *3. Judge Shaw discussed Knox v. Serv. Emp. Int’l Union, Local 1000, 132 

S. Ct. 2277 (2012) and Harris and concluded that if a HHW wished to support the union, the 

HHW would suffer no First Amendment injury from a fair-share deduction. Id. “Thus, to prove 

injury, and the complete constitutional tort, plaintiffs must prove contemporaneous subjective 

opposition to the compelled payments.” Id. As discussed above, I agree. Judge Shaw concluded 

the factual questions involved in determining individual damages to potential class members 

would predominate over other issues, making certification unavailable under rule 23(b)(3). Id. at 

*8. 

Likewise, factual issues present here prevent Brown from demonstrating the 

predominance of questions common to the class required under rule 23(b)(3). Under these facts, 

 

2

As in Centano, the Schlaud court pointed to problems under rule 23(a)(4) concerning plaintiffs’ representation of 

the class. Id. at 1127, 1128 n.2. Once again, while this is a persuasive argument, I need not decide it here.

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especially considering the apparent post-Abood and pre-Harris constitutionality of automatic 

fair-share deductions, the particular inquiries regarding subjective intent make class certification 

inappropriate. Brown argues:

The factual issue is not whether these HCWs subjectively may have or do support 

SEIU, financially or otherwise, but whether they had given written authorization 

or permission for the State to make the union deductions. The legal issue 

presented is the legality of those automatic and unauthorized deductions, not the 

motives of Plaintiff or class members’ subjective views about SEIU or each other.

Reply, 2. 

But this case, like the three cases discussed above, is entirely about the motives of the 

class members. Harris did not hold automatic deductions absent prior written authorization 

violated the First Amendment. As noted, the holding of Harris was much narrower. Determining 

whether individual class members “want[ed] to join or support the union” are critical factual 

questions that will vary as to each individual class member. See Harris, 134 S. Ct. at 2644. 

While plaintiff is correct that under Harris, the mere fact a non-member benefits from the 

union’s negotiations does not alone justify the automatic deduction, that issue is irrelevant to this 

action. No one argues that the deductions here were constitutional because the non-members 

benefitted (via higher wages, insurance, etc). Rather, the individual constitutional claims of each 

proposed class member depend on whether, at the time of the deduction, the member wished to 

join or support the union. 

Brown’s proposed class includes HHWs who had fair share deductions from August 12, 

2013 until today without consenting in writing to union membership. That class undoubtedly 

includes hundreds, if not thousands, of HHWs who support the union or wish to join the union 

but for whatever reason have not consented in writing to joining the union. The Union submitted 

evidence that the proposed class would include more than 9,400 HHWs who had fair share 

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deductions withheld and then subsequently joined the union. Conroy Decl. ¶ 40. Additionally, 

the proposed class does not appear to take into account the few months of lag time between when 

a new HHW starts working and when the union learns of this and gets the paperwork to the 

worker (often returned signed later). During that interim period, DHS automatically withheld fair 

share fees. Conroy Decl. ¶ 42. 

The union also submitted declarations regarding the odd form of accounting for the fair 

share provisions. Because the fair share deductions equaled the union dues, some of the

“financial intermediaries” charged with processing” HHW paychecks “consistently classified 

their withholdings as fair share payments instead of union dues, even though the homecare 

workers had signed membership authorizations.” Conroy Decl. ¶45. As the compelled deductions 

were lawful before Harris, and as the amounts were identical, apparently no one was overly 

concerned with how the deductions were classified. In short, many HHWs thought they were in 

the union (and were happy to be so) when in fact they were non-members. 

I agree with the Union that the only way for it to defend itself in this action would be to 

conduct depositions of each and every proposed class member to determine that individual’s preHarris subjective intent or desire concerning union membership. Apart from any potential 

conflicts with the class resprentative(s), the factual inquiries specific to individual class members 

predominate over questions of law or fact common to the class. Brown’s proposed class fails to 

meet the requirements of rule 23(b)(3).

/ / / /

/ / / /

/ / / /

/ / / /

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CONCLUSION

Because Brown’s proposed class fails to meet the predominance requirement of rule 

23(b)(3), the motion for class certification, ECF No. 4, is DENIED.

IT IS SO ORDERED.

DATED this 29th day of June, 2016.

______/s/ Michael J. McShane__

Michael McShane

United States District Judge

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