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GIBSON LAW FIRM, LLC

JILL O. GIBSON, OSB #973581
1500 SW Taylor Street
Portland, OR 97205
Tel: 503.686.0486
Fax: 866.511.2585
jill@gibsonlawfirm.org
JAMES G. ABERNATHY, WSBA #48801
DAVID M.S. DEWHIRST, WSBA #48229
(pro hac vice to be filed)
c/o FREEDOM FOUNDATION
P.O. Box 552
Olympia, WA 98507
Tel: 360.956.3482
Fax: 360.352.1874
DDewhirst@myfreedomfoundation.com
JAbernathy@myfreedomfoundation.com
MILTON L. CHAPPELL, DCB #936153 (pro hac vice to be filed)
c/o National Right to Work Legal Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, VA 22151
Tel: 703.770.3329
Fax: 703.321.9319
mlc@nrtw.org
Attorneys for Plaintiff and the Requested Class

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
EUGENE DIVISION
JULIAN BROWN, a certified Homecare
Worker of Oregon,
Plaintiff,
v.
KATE BROWN, in Her Official Capacity as
Governor of the State of Oregon; ERINN

No.: 6:15-cv-1523
CLASS ACTION ALLEGATION
COMPLAINT
Constitutional Violation Action
(42 U.S.C. 1983)
DEMAND FOR JURY TRIAL

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KELLEY-SIEL, in Her Official Capacity as

Director of the Oregon Department of Human
Services; CHERYL MILLER, in Her Official
Capacity as Executive Director of the Oregon
Home Care Commission; GEORGE
NAUGHTON, in his Official Capacity as
Acting Director of the Oregon Department of
Administrative Services; TOM PERRY, in his
official capacity as the Labor Relations Unit
Manager within the Department of
Administrative Services, and SERVICE
EMPLOYEES INTERNATIONAL UNION,
LOCAL 503, OPEU, a labor organization,
Defendants.
INTRODUCTION
1.

This case seeks to enforce and expand the United States Supreme Courts decision

in Harris v. Quinn, 134 S. Ct. 2618 (2014), to Oregon homecare workers who are not members
of the union. Harris held the First Amendment does not permit a State to compel personal care
providers to subsidize speech on matters of public concern by a union they do not wish to join or
support. The State is forcing Plaintiff and all other nonunion homecare workers who have not
affirmatively accepted membership in Defendant Service Employees International Union, Local
503, OPEA (SEIU 503 or Union) or having become Union members resigned that
membership, to accept and financially support a mandatory representative to speak to or petition
the State over its homecare policies. Plaintiff alleges that this violates his rights under the First
Amendment to the United States Constitution, as secured against state infringement by the
Fourteenth Amendment and 42 U.S.C. 1983, to choose individually with whom he associates
or supports to petition or to speak to the government. This case concerns whether it is
constitutional for a State to compel citizens to accept a mandatory representative to lobby
government over policies that affect their private employment in providing homecare services
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and seeks the return of the union fees automatically seized by the State from the homecare
voucher/service payments or salaries paid to homecare workers during any period in which
they have not consented in writing to Union membership or having been a Union member have
resigned that membership (nonunion, nonmember, or not a member of the Union).
2.

This is a civil rights class action pursuant to 42 U.S.C. 1983, seeking

declaratory and injunctive relief, as well as nominal and compensatory damages and/or
restitution of union fees illegally collected from Plaintiff and the class members he seeks to
represent. Defendants are state actors acting under the color of state lawspecifically, Article
XV, section 11(3)(f), of the Oregon Constitution, ORS 243.650 et seq., and collective bargaining
agreements between the Oregon Home Care Commission (OHCC), acting through the
Department of Administrative Services (DAS), and SEIU 503. Defendants have been
depriving and continue to deprive Plaintiff and other nonunion homecare workers of their rights,
privileges, and immunities against compelled speech and compelled association under the First
and Fourteenth Amendments of the United States Constitution.
3.

Plaintiff is a homecare worker who cares for private clients and receives

voucher/service payments or salaries from the Department of Human Services (DHS) for
that work. As a homecare worker who has not consented in writing to membership in SEIU 503,
Plaintiff brings this suit to enjoin and declare unconstitutional Article XV, section 11(3)(f), of the
Oregon Constitution, ORS 243.666, and art. 2 and art. 4 3 of the 2013-2015 Collective
Bargaining Agreement (2013-2015 CBA)1 between the OHCCacting through the DASand

Available at http://www.oregon.gov/DAS/CHRO/docs/lr/13_15_SEIU-HCC_final.pdf (last visited Aug.

10, 2015). The current working draft of the 2015-2017 CBA is available at
http://www.oregon.gov/DAS/CHRO/docs/lr/Blacklines/HCC_Blackline_05082015.pdf (last visited Aug.
10, 2015).
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SEIU 503, and similar language in any subsequent CBA to the extent that those authorities
mandate and establish an exclusive bargaining representative on behalf of all nonunion homecare
workers and force individuals who are nonunion homecare workers to accept and financially
support that exclusive bargaining representative to speak to and petition the OHCC and Oregon
government over its homecare policies. Plaintiff also brings this suit to enjoin and declare
unconstitutional those portions of ORS 243.776 and ORS 292.055 applicable to nonunion
homecare workers, along with art. 7, 9 of the 2013-2015 CBA between the OHCCacting
through the DASand SEIU 503, and similar language in any subsequent CBA which
authorizes OHCC and DHS to deduct union fees equal to SEIUs membership dues from the
payments of nonunion homecare workers and remitted those fees to SEIU 503.
JURISDICTION AND VENUE
4.

This Court has jurisdiction over this case pursuant to 28 U.S.C. 1331, because it

arises under the First and Fourteenth Amendments to the United States Constitution, and 28
U.S.C. 1343, because Plaintiff seeks relief under the Federal Civil Rights Act of 1871, 42
U.S.C. 1983. This Court has authority under 28 U.S.C. 2201 and 2202 to grant declaratory
relief and other relief, including preliminary and permanent injunctive relief, pursuant to Rule 65
of the Federal Rules of Civil Procedure, based thereon.
5.

Venue is proper in this Court pursuant to 28 U.S.C. 1391 because the claims

arise in this judicial district and division, Plaintiff resides and does business in this judicial
district and division, and Defendants do business and operate in this judicial district and division.
Because Plaintiff resides and works in Deschutes County and the claims arose in Marion County,
intradistrict assignment to the Eugene Division is proper. Local Rule 3-2.

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PARTIES
6.

Plaintiff Julian Brown is a homecare worker who provides his services in

Deschutes County, Oregon and receives homecare payments or salary from the DHS. He is a
homecare worker pursuant to OAR 411-031-020(19). Plaintiff is a member of a state-wide
bargaining unit represented by SEIU 503, but he is not a member of SEIU 503 and has not been a
member of that union at any time since August 12, 2013, having never consented in writing to
membership in SEIU 503.
7.

Defendant Kate Brown is the Governor of Oregon and is sued in her official

capacity. As such, Brown is Oregons Chief Executive, see Or Const., Art V, 1, and shall take
care that the Laws be faithfully executed. Id. at 10. Because Plaintiff challenges the
constitutionality of Oregon constitutional, statutory, and administrative provisions, Governor
Brown is a necessary party to this lawsuit. Additionally, because the Administrative Department
is subsumed within the Executive Branch of Oregon, the governor bears ultimate responsibility
for the state actions undertaken pursuant to constitutional, statutory, and administrative
provisions and CBA provisions entered into by agencies within the Administrative Department.
8.

Defendant Erinn Kelley-Siel is Director of the Oregon Department of Human

Services (DHS) and is sued in her official capacity. DHS unconstitutionally performed the fee
deductions from the voucher/service payments or salaries of nonunion homecare workers and
remitted those unconstitutionally seized monies to SEIU 503.
9.

Defendant Cheryl Miller is the Executive Director of the Oregon Home Care

Commission (hereafter OHCC or Commission), and is being sued in her official capacity.
Pursuant to Article XV, section 11(3)(f), of the Oregon Constitution, the OHCC is the employer
of record of homecare workers, for the purposes of collective bargaining. As such, on
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information and belief, Miller and the Commission are charged with the responsibility of issuing
homecare voucher/service payments or salaries to nonunion homecare workers, including
Plaintiff and class members, and processing all deductions therefrom, including nonmember
dues-equivalent fees pursuant to ORS 292.055(5) and art. 7 9 of the 2013-2015 CBA.
10.

Defendant George Naughton is the Acting Director of the Oregon Department of

Administrative Services (DAS) and is being sued in his official capacity. He and the DAS are
charged with the responsibility of negotiating and enforcing the collective bargaining agreement
on behalf of the OHCC with SEIU 503 pursuant to ORS 243.696(1).
11.

Defendant Tom Perry is the Labor Relations Unit Manager within the DAS and

is being sued in his official capacity. As Labor Relations Unit Manager, Perry oversees Labor
Relations Managers tasked with negotiating, bargaining, and signing CBAs between OHCC and
SEIU 503 that contain unconstitutional provisions.
12.

Defendant Service Employees International Union Local 503, OPEU ("SEIU

503") is a labor union conducting business and operations throughout the State of Oregon with
its headquarters located in this judicial district and division at 1730 Commercial St SE, Salem,
OR 97302. SEIU 503 is the exclusive bargaining representative of homecare workers, including
Plaintiff and the class he seeks to represent, pursuant to ORS 243.666.
FACTUAL ALLEGATIONS
I.

Homecare Workers and the State of Oregon.

13.

Oregon homecare workers care for seniors and people with disabilities in the

home of the worker or in the home of the senior or disabled individual throughout all hours of
the day, and in certain circumstances overnight and on weekends. Qualified homecare workers
may receive payments for their care of seniors or individuals with disabilities. The OHCC
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established homecare worker qualifications and maintains a registry of qualified homecare

workers hired directly by clients and financed by the state. See Or Const., Art XV, 11(1)(b).
14.

Homecare workers receive payments from DHS. 2013-2015 CBA art. 2 2.

15.

Homecare workers who care for persons eligible for subsidized care receive a

voucher/service payment or salary from the state. OAR 411-31-0040(10)(a).

II.

Oregon law compels homecare workers to accept and financially support a

mandatory exclusive representative for purposes of collective bargaining.
16.

Oregon homecare workers are public employees solely for the purposes of

collective bargaining. Or Const., Art XV, 11(3)(f). The Commission is the public employer
of homecare workers. Id.
17.

Oregon law requires all homecare workers receiving a payment to be represented

by a single, exclusive bargaining representative in a single, state-wide bargaining unit. ORS

243.666; ORS 243.682(1). See also 2013-2015 CBA, art. 2, 1, 2.
18.

On December 26, 2001, the Oregon Employment Relations Board (Board)

certified SEIU 503 as the exclusive bargaining representative of homecare workers for the
purpose of collective bargaining. Service Employees International Union Local 503 v. Oregon
Homecare Commission, Case no. RC-43-01 (E.R.B. 2001). Then, on June 14, 2011, the Board
recertified SEIU 503 as the exclusive bargaining representative of homecare workers for the
purpose of collective bargaining. Service Employees International Union Local 503 v. Oregon
Homecare Commission, Case no. UC-007-11 (E.R.B. 2011).
19.

SEIU 503, as the homecare workers' sole and exclusive bargaining representative,

is signatory to various collective bargaining agreements (CBA) with the OHCC that determine
the terms and conditions of employment of all bargaining unit members, including Plaintiff and

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other class members who have not consented in writing to membership in SEIU 503, or having
become Union members have resigned that membership (nonunion, nonmember, or not a
member of the Union). That CBA prevents the OHCC from meeting, discussing, conferring, or
negotiating with any other individual, employee organization or their representatives on any
matters pertaining to the terms and conditions of employment. CBA, art. 2, 1, 2.
20.

The 2013-2015 CBA between the OHCC and SEIU 503 contains a union

security or fair share provision which requires all nonunion homecare workers to make
payments in-lieu-of-dues to SEIU 503. CBA, art. 7 9.
21.

Oregon law directs DHS to withhold those fees from Plaintiff and other class

members and remit them directly to SEIU 503. ORS 292.055(5); ORS 243.650(10); OAR 41131-0040(10)(d)(A)-(C).
22.

SEIU 503 determines the amount of the membership dues and equivalent

nonmember fees. ORS 292.055; see also Oregon AFSCME Council 75, Local No. 2503 v. Hood
River County, 248 Or. App. 293 (2012).
III.

The State of Oregon and SEIU 503 are forcing Plaintiff and other
homecare workers to associate with mandatory representatives.
23.

Oregon's certification of SEIU 503 as the exclusive bargaining representative of

all homecare workers forces Plaintiff and other nonunion homecare workers into a mandatory
agency relationship with SEIU 503, wherein SEIU 503 has the sole legal authority to act as their
agent for purposes of petitioning the state regarding its homecare policies, contracting with the
OHCC, and petitioning the OHCC, DAS and DHS for enactment of regulations and legislation.
24.

By certifying SEIU 503 as the exclusive representative of all nonunion homecare

workers, the State forcibly associates and affiliates Plaintiff and other workers with SEIU 503's

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petitioning, speech, contracts, and public policy positions.

25.

Plaintiff opposes being forced to accept SEIU 503 as his mandatory representative

for petitioning and contracting with state agencies. He does not want to be forced into an agency
relationship with this advocacy group, and does not want to be affiliated with its expressive
activities.
26.

At various times since August 12, 2013, Plaintiff and class members have

provided homecare services to one or more persons enrolled in a government-funded care

assistance program. At various times between August 2013 and August 2014, these nonunion
homecare workers were subject to the compulsory fee requirements of ORS 292.055, and had
union fees automatically taken from their voucher/service payments, without their authorization.
The payment for any designated month is usually received by the worker within a few weeks of
the subsequent month.
27.

The automatic union deductions continued for Plaintiff until the month after he

specifically requested in writing by certified mail on July 17, 2014, that the unauthorized SEIU
deductions cease.
28.

Plaintiff opposes being forced to pay compulsory fees to SEIU 503, and does not

want to subsidize the organization or its expressive activities.

29.

Plaintiff also opposes having to opt out and specifically request that his SEIU

deductions cease in order to effectuate the discontinuance of automatic deductions from the
voucher/service payments to nonmembers of SEIU 503 (those who have not consented in writing
to membership in SEIU 503, or having become a member subsequently resigns that
membership).
CLAIMS FOR RELIEF
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30.

Plaintiffs re-allege and incorporate by reference the paragraphs set forth above.

31.

The First Amendment to the United States Constitution guarantees each

individual a right to choose whether, how, and with whom he or she associates to petition the
Government for a redress of grievances and engage in speech. A state grievously infringes on
these First Amendment rights when it compels citizens to be represented by and associate with
and financially support an expressive organization or its expressive activities. Those
infringements are subject to at least exacting constitutional scrutiny, and are permissible only if
they serve a compelling state interest that cannot be achieved through means significantly less
restrictive of associational freedoms.
COUNT I
(Exclusive representation violates 42 U.S.C. 1983 and the First Amendment)
32.

Plaintiff re-alleges and incorporates by reference the paragraphs set forth above.

33.

By and through Article XV, section 11(3)(f), of the Oregon Constitution, ORS

243.666, and art. 2 and art. 4 3 of the 2013-2015 CBA and related provisions along with
similar language in any subsequent CBA, as well as the certification of an exclusive
representative, Defendants have deprived Plaintiff of his constitutional right to not associate with
an organization for purposes of speech and petition[ing] the Government for a redress of
grievances in violation of the First Amendment, as secured against State infringement by the
Fourteenth Amendment and 42 U.S.C. 1983.
34.

No compelling state interest justifies this infringement on Plaintiffs First

Amendment rights.
35.

Article XV, section 11(3)(f), of the Oregon Constitution, ORS 243.666, and art. 2

and art. 4 3 of the 2013-2015 CBA and related provisions along with similar language in any

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subsequent CBA, as well as the Boards certification of SEIU 503 as an exclusive representative,
to the extent that those Constitutional provisions, statutes, CBA language, and certification
mandate an exclusive bargaining representative on behalf of homecare workers are
unconstitutional both on their face and as applied to Plaintiff.
COUNT II
(Compulsory financial support of SEIU 503 violates 42 U.S.C. 1983
and the First and Fourteenth Amendments.)
36.

Plaintiff re-alleges and incorporates by reference the paragraphs set forth above.

37.

By and through ORS 243.776 and ORS 292.055, along with the 2013-2015 CBA,

art. 7 5, 8, 9, and 12, and related provisions, along with similar language in any subsequent
CBA, as well as the automatic seizure of dues-equivalent fees from Plaintiff and class
membersand the requirement that nonmembers specifically opt out and request the deductions
to ceaseDefendants have compelled Plaintiff and other nonunion homecare workers to
financially support the union as their mandatory representative for petitioning and contracting
with the State. By so doing, Defendants have violated, and continue to violate, the First
Amendment rights of Plaintiff and other nonunion homecare workers, as secured by the
Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983, not to associate
with a mandatory representative and not to support, financially or otherwise, petitioning and
speech.
38.

No compelling state interest justifies these infringements on Plaintiffs First

Amendment rights.
39.

ORS 243.776 and ORS 292.055, along with the 2013-2015 CBA art. 7 5, 8, 9,

and 12, and related provisions, along with similar language in any subsequent CBA, and the
requirement that Plaintiff and other class members who have not consented in writing to
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membership in SEIU 503 or having joined the Union have resigned that membership to opt out
of membership and the automatic payment of fees to SEIU 503, are unconstitutional both on
their face and as applied to Plaintiff and the prospective class.
CLASS ALLEGATIONS
(Limited to Count II)
40.

Plaintiff brings this case as a class action pursuant to Federal Rules of Civil

Procedure 23(b)(3), for himself and for all others similarly situated. The class for Count II
consists of 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 fees 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.
41.

According to SEIU 503s 2014 LM-2 Annual Report filed with the United States

Department of Labor, the union had more than 8,000 fair share payers, nonmembers paying fees
to the Union. On information and belief, at least several thousand homecare workers have not
consented in writing to membership in SEIU 503 or have resigned prior membership but were
nonetheless forced to pay fees to SEIU 503. Thus, FRCP 23(a)(1)s numerosity prerequisite is
satisfied.
42.

There are questions of law and fact common to all class members, including

Plaintiff. Factually, all class members were, or may still be, compelled financially to support
SEIU Local 503 as their state-designated representative for the purposes of speaking to,
petitioning, and otherwise lobbying OHCC, DAS, DHS and other State agencies and their
officials with respect to homecare programs. The question of law is the same for all class

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members: does this forced financial support from nonunion homecare workers violate the First
Amendments least restrictive means test and constitute a prior restraint on class members
speech. Thus, FRCP 23(a)(2)s commonality prerequisite is satisfied.
43.

Plaintiffs claims are typical of other members of the class who are subject to the

same deprivations of their First Amendment rights by DHS deduction and transmittal and Local
503s acceptance of dues equivalent fees from nonmembers, and the State agencies and SEIU
503 owe an identical duty with regards to these claims to Plaintiff and all other class members.
Thus, FRCP 23(a)(3)s typicality prerequisite is satisfied.
44.

Plaintiff can adequately represent the interests of the class and has no conflict

with those class members who have not consented in writing to membership in SEIU 503 or have
resigned that prior membership but who were or are, as a condition of receiving their
voucher/service payment, forced by the OHCC, DAS and other State agencies to pay dues
equivalent fees to Local 503 and otherwise support a state-designated lobbyist in violation of
their First Amendment rights. Thus, FRCP 23(a)(4)s adequacy prerequisite is satisfied.
45.

A class action can be maintained under Rule 23(b)(3), because the common

questions of law or fact identified in Count II concerning the constitutional and civil rights of
nonunion homecare workers predominate over any questions affecting an individual class
member. A class action is superior to other available methods for fair and efficient adjudication
of this controversy, in that Plaintiff and class members are deprived of the same constitutional
and civil rights by the DHS deduction and Local 503s acceptance and spending of dues
equivalent fees from nonmember homecare workers. Moreover, the limited amount of money at
stake for each individual worker makes it burdensome for Plaintiff and class members to
maintain individual and separate actions. Thus, this class claim can be maintained pursuant to
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FRCP 23(b)(3).
46.

Defendants illegal actions against Plaintiff and all class members were taken

pursuant to the same Constitutional provisions, statutes and collective bargaining agreements,
and constituted a concerted scheme that results in the violation of Plaintiffs and class members
First Amendment rights at multiple levels. Thus, the pleadings requirements of LR23-2 are
satisfied.
47.

Plaintiffs attorneys are provided to Plaintiff and class members pro bono by

national charitable organizations that provide free legal aid to workers. These attorneys are
experienced in representing individuals who are not members of a union in federal civil rights
litigation, having litigated many of the leading constitutional cases in this area of law, including
class actions involving union fee issues identical or similar to those raised in this action and
pertaining to the class. These attorneys are best able to represent the interests of the class
members and will fairly, zealously, and adequately do so.
PRAYER FOR RELIEF
Wherefore, Plaintiff requests that this Court:
A.

Class action: enter an order, as soon as practicable, certifying this case as

a class action for Count II, certifying the class as defined in the Complaint, certifying
Plaintiff as class representative for the class, and appointing Plaintiffs counsel as class
counsel for the class;
B.

Declaratory judgment: enter a declaratory judgment that Article XV,

section 11(3)(f), of the Oregon Constitution, ORS 243.666, and the 2013-2015 CBA art.
2 and art. 4 3, and similar provisions in subsequent agreements, to the extent that those
statutes mandate an exclusive bargaining representative on behalf of all homecare
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workers, and those portions of ORS 243.776 and ORS 292.055, applicable to homecare
workers, along with the 2013-2015 CBA, art. 7 5, 8, 9, and 12, between the OHCC
and SEIU 503, and similar language in any future CBA which implement those statutory
provisions are unconstitutional under the First Amendment, as secured against state
infringement by the Fourteenth Amendment to the United States Constitution and 42
U.S.C. 1983, and are null and void;
C.

Permanent injunction: issue a permanent injunction enjoining

Defendants from engaging in any activity this Court declares illegal; and the enforcement
of Article XV, section 11(3)(f), of the Oregon Constitution, ORS 243.666, and the 20132015 CBA art. 2 and art. 4 3, and similar provisions in subsequent agreements, to the
extent that those statutes mandate an exclusive bargaining representative on behalf of all
homecare workers, and those portions of ORS 243.776 and ORS 292.055 applicable to
homecare workers, along with the 2013-2015 CBA, art. 7 5, 8, 9, and 12, and similar
language in subsequent agreements which implement those statutory provisions;
D.

Damages: enter a judgment awarding Plaintiff compensatory damages

under Count I and enter a judgment awarding Plaintiff and class members compensatory
damages or restitution under Count II in an amount equal to the union fees deducted from
their homecare voucher/service payments since and including August 2013, with interest,
and such other amounts as principles of justice and compensation warrant, and hold SEIU
Local 503 liable for said damages or restitution;
E.

Costs and attorneys fees: award Plaintiff(s) their costs and reasonable

attorneys fees pursuant to the Civil Rights Attorneys Fees Award Act of 1976, 42
U.S.C. 1988; and
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Other relief: grant Plaintiff(s) such other and additional relief as the

Court may deem just and proper.

DEMAND FOR JURY TRIAL
The Plaintiff(s) hereby demands trial of their claims by jury to the extent authorized by
law.
Dated: August 12, 2015.
By: /s/ Jill O. Gibson
JILL O. GIBSON, OSB #973581
GIBSON LAW FIRM, LLC
1500 SW Taylor Street
Portland, OR 97205
Tel: 503.686.0486
Fax: 866.511.2585
jill@gibsonlawfirm.org
DAVID M.S. DEWHIRST, WSBA #48229
JAMES G. ABERNATHY, WSBA #48801
(pro hac vice to be filed)
c/o FREEDOM FOUNDATION
P.O. Box 552
Olympia, WA 98507
Tel: 360.956.3482
Fax: 360.352.1874
DDewhirst@myfreedomfoundation.com
JAbernathy@myfreedomfoundation.com
MILTON L. CHAPPELL, DCB #936153
(pro hac vice to be filed)
c/o National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, suite 600
Springfield, VA 22151
Tel: 703.770.3329
Fax: 703.321.9319
mlc@nrtw.org
Attorneys for Plaintiff and the Requested Class

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