IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 1 of 17 PageID 706 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JOSE SERNA, MARY RICHARDSON, ROBERTO CRUZ, SANTOS CORDERO, SARI MADERA, RALPH ANDERSON, WARREN LAMBERT, GREG HOFER, and KENT HAND, v. Plaintiffs, TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Defendant. Case No. 3:13-cv-02469-N FIRST AMENDED COMPLAINT--CLASS ACTION--FOR DECLARATORY, MONETARY, AND INJUNCTIVE RELIEF Plaintiffs Jose Serna, Mary Richardson, Roberto Cruz, Santos Cordero, Sari Madera, Ralph Anderson, Warren Lambert, Greg Hofer, and Kent Hand (collectively Employees ) file this amended class action complaint against the Defendant Transport Workers Union of America, AFL-CIO ( Union ) and allege: I. Summary of the Case: 1. In Knox v. SEIU, Local 1000, 567 U.S., 132 S. Ct. 2277 (2012), the United States Supreme Court ( Supreme Court ) signaled that it was ready to reassess whether compulsory union fees cross[] the limit of what the First Amendment can tolerate. The Court referred to its prior rationale justifying compulsory union fees as generally 1

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 2 of 17 PageID 707 insufficient and something of an anomaly. Here, Employees who oppose being compelled to support a union invoke the Supreme Court s invitation to re-litigate the constitutionality of statutes and union practices that require compulsory union fees as a condition of employment. The Employees also make two alternative claims challenging the constitutionality of the Union s compulsory fee procedures. First, in Knox the Court questioned past dicta that nonunion employees who reject union membership must take the additional step of opting out of union politics and other non-bargaining activities, as opposed to being required to opt in to support such activities. The only choice structure consistent with the First Amendment s least restrictive means requirement is that neither the state nor unions may exact any funds from nonmembers for politics or other non-bargaining activities unless nonmembers affirmatively consent, i.e., opt in. Second, if the Union s current opt out requirement passes the least restrictive means test, these Union requirements do not: that Employees annually renew their objection, Shea v. Machinists, 154 F.3d 508 (5th Cir. 1998); and that Employees provide the Union with involuntary loans, Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). II. Jurisdiction and Venue: 2. Employees claims arise under the Railway Labor Act ( RLA ), 45 U.S.C. 151, et seq., and the First and Fifth Amendments to the United States Constitution. Accordingly, this Court has jurisdiction over this action pursuant to 28 U.S.C. 1331 2

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 3 of 17 PageID 708 (federal question) and 1337 (interstate commerce). Pursuant to 28 U.S.C. 2201 and 2202, the Court may declare Employees rights. Venue is proper in this Court pursuant to 28 U.S.C. 1391 because Employees claims arose in this district and Union maintains an office in this district. III. Plaintiffs: 3. Jose Serna was, and Mary Richardson, Roberto Cruz, Santos Cordero, and Sari Madera are, employees within the meaning of 45 U.S.C. 151, Fifth. They are or were employed by American Eagle Airlines ( American Eagle ), which is part of AMR Corporation, and is a common carrier by air within the meaning of 45 U.S.C. 181. Neither American Eagle nor AMR is a defendant here. 4. Ralph Anderson, Warren Lambert, Greg Hofer, and Kent Hand are employees within the meaning of 45 U.S.C. 151, Fifth. They are employed by Southwest Airlines Co. ( Southwest ), which is a common carrier by air within the meaning of 45 U.S.C. 18. Southwest Airlines Co. is not a defendant here. IV. Defendant: 5. Defendant Transport Workers Union of America, AFL-CIO is a representative within the meaning of 45 U.S.C. 151, Sixth and is the exclusive bargaining representative for the Employees under 45 U.S.C. 152, Ninth, notwithstanding their decision to reject Union membership. 3

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 4 of 17 PageID 709 V. Facts: 6. Jose Serna was, and Mary Richardson, Santos Cordero, and Sari Madera are, Fleet Service Clerks. Roberto Cruz is a Fleet Service Crew Chief. They all work or worked at the Dallas/Fort Worth International Airport (DFW) for American Eagle, are not members of the Union, and want nothing to do with the Union. 7. Ralph Anderson, Warren Lambert, Greg Hofer, and Kent Hand are Flight Attendants for Southwest. Anderson s base is Baltimore/Washington International Thurgood Marshall Airport (BWI); Lambert s base is Las Vegas McCarran International Airport (LAS); and Hofer s and Hand s base is Oakland International Airport (OAK). At times, these Flight Attendants fly into Dallas Love Field (DAL). They are not members of the Union and oppose being compelled to financially support the Union and having to opt out in order to refrain from supporting the Union s political and other non-bargaining activities. 8. As authorized by the RLA, 45 U.S.C. 152, Eleventh, which preempts the Texas Right to Work law (TEX. CODE ANN., 3 101.051 et seq.), the Union entered into a collective bargaining agreement with American Eagle (or its predecessor Simmons Airlines) ( American Eagle Agreement ) requiring all Fleet Service Clerks, including the American Eagle Fleet Service Employees, to join the Union, pay Union fees, or face discharge. If not preempted by federal law, the Texas Right to Work law would void that agreement to compel fees on penalty of discharge. 4

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 5 of 17 PageID 710 9. As authorized by the RLA, U.S.C. 152, Eleventh, the Union entered into a collective bargaining agreement with Southwest ( Southwest agreement ) requiring all Flight Attendants, including the Southwest Flight Attendant Employees, to join the Union, pay Union fees, or face discharge. 10. The Union makes refraining from joining or supporting the Union much more burdensome than joining or supporting the Union. For example: a. Article 25, K of the American Eagle Agreement allows employees to pay union dues through automatic check-off by simply executing a form. In contrast, Article 25, L of the agreement provides that any revocation of the check-off must be in writing, signed by the employee and delivered by certified mail, addressed to their respective Local Union Office. b. Article 26, 6 of the Southwest Agreement allows employees to pay union dues through automatic check-off by simply executing a form at any time. In contrast, once the check-off form is signed, it becomes irrevocable for a full year, and thereafter shall continue to be irrevocable unless the employee gives the Company and the Union a written notice of revocation within the fifteen (15) day period prior to the anniversary date of the authorization. 5

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 6 of 17 PageID 711 c. Although the Union requires compulsory fees ostensibly to support negotiating collective bargaining agreements, it bars nonmembers from having a voice or a vote on those agreements. d. Although the Union requires compulsory fees ostensibly to support its expenses for protecting employees terms and conditions of employment, it bars nonmembers from participating in Union meetings and activities that are pertinent to the implementation or enforcement of collective bargaining agreements. e. No employee can be required to support union political and ideological activities. Machinists v. Street, 367 U.S. 740, 771 (1961). Notwithstanding this, the Union automatically includes in its compulsory fees the political, ideological, and other non-bargaining expenses charged to its members, without requesting the nonmember employee s consent. As a result, employees who wish to maintain their political and ideological autonomy, and not subsidize these non-bargaining expenses, must comply with the following opt out Union procedures contained in attached Exhibit A ( Transport Workers Union of America Policy on Agency Fee Objection ): 1. Decipher the Policy and plan and draft a written notice of objection; 6

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 7 of 17 PageID 712 2. Mail the objection to both the Union s International Secretary Treasurer and the Treasurer of the Union s local; 3. Annually postmark the objection notice during the month of January; 4. Sign the objection; 5. Reveal to the Union the employee s home address; 6. Include in the objection notice the local union s number, if known; 7. Purchase at least two envelopes, find the addresses of the Union and its local, make a copy of the notice, pay for sufficient postage to send the objection notice to two separate addresses, and deposit the envelopes in the mail; 8. If the employee is currently a member of the Union, the Union imposes the obligation to resign from membership, and then submit the objection within a thirty day deadline; if newly hired, a nonmember must submit objection within thirty days of entering the bargaining unit; 9. Even if an employee precisely follows all of these steps, the Union requires the employee to make a Union fee payment that includes the Union s political, ideological, and non-bargaining expenses unless the employee pays the fee by 7

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 8 of 17 PageID 713 cash or check and successfully takes the following steps: finds the December issue of EXPRESS, the Union s magazine for its members, locates in that issue an audited report, deciphers the report, and reduces the payment by what the Union refers to as the nonchargeable amount ; 10. If the employee is paying Union fees by payroll deduction, the employee is required to provide the Union with an involuntary loan, because the Union waits until a month after the end of each quarter to refund its political and ideological expenses for the quarter (the Union pays interest on the amount of this forced loan); and 11. If the employee thinks the Union s refund is insufficient, the employee must follow two additional pages of instructions and procedures. VI. Class Action Allegations: 11. This is brought as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1)(A) and (b)(2), and alternatively, 23(b)(3), by Employees Cruz, Cordero, Madera, and Anderson ( Class Representatives ) for themselves and for all others similarly situated. The class for all counts consists of all former (employed at some time since July 1, 2012), current, and future nonmember employees within the meaning of 45 U.S.C. 8

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 9 of 17 PageID 714 151, Fifth who are, have been, or will be represented by the Union and are, have been, or will be compelled to pay compulsory union fees as a condition of employment. 12. Upon information and belief, the number of persons in the class exceeds one thousand in locations across the country, and therefore the class is so numerous that joinder is impractical. 13. There are questions of law and fact common to all class members, including Class Representatives. These include: a. Whether Congress authorization of any compulsory union fee requirement under the RLA is constitutional; b. Whether the Union s requirement that nonmembers opt out of its political, ideological, and other non-bargaining expenses to avoid paying for them violates the First Amendment s least restrictive means test and constitutes a prior restraint on speech; c. Whether the Union may lawfully treat nonmembers objections to supporting the Union s political, ideological, and other nonbargaining expenses as expiring at the end of a year and therefore require them to be annually renewed; and, d. Whether the Union may lawfully require nonmembers to make a forced loan for political and other non-bargaining purposes if they pay forced fees by payroll deduction. 9

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 10 of 17 PageID 715 14. All of Class Representatives claims are typical of the claims of other class members who are subject to the same deprivations of their rights by the Union s collection of compulsory union fees. The Union owes an identical duty with regard to these claims to Class Representatives and all other class members. 15. Class Representatives can adequately represent the interests of the class and have no conflict with other class members who have chosen not to join the Union but are likewise forced to pay monies to the Union as a condition of employment. 16. Because the Union s compulsory union fee practices and procedures apply equally to all in the class, the prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications which would establish incompatible standards of conduct for the Union. 17. The Union has acted, and continues to act, to deprive Class Representatives and each class member of their constitutional rights on grounds generally applicable to all, thereby making appropriate declaratory, injunctive, and other equitable relief appropriate for all class members. 18. Alternatively, the questions of law or fact raised in this complaint concerning the constitutional rights of nonmembers of the Union are common to the class members and predominate over any questions affecting only individual class members. 19. A class action is superior to other available methods for the fair and efficient adjudication of the controversy, in that individual class members are deprived of the same 10

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 11 of 17 PageID 716 constitutional rights by the Union s compulsory fee collection, differing only in immaterial aspects of their factual situations. The limited amount of money at stake for each individual employee makes it burdensome for class members to maintain separate actions. 20. The illegal actions taken by the Union and its affiliates against all nonmembers were and are taken pursuant to the same Union forced fee policy and procedures, and constitute a concerted scheme that results in the violation of Class Representatives rights at multiple levels and locations of the Union. 21. Class Representatives attorneys are provided by a national charitable legal aid organization and are experienced in representing nonunion employees in federal litigation, having litigated many of the leading constitutional and statutory cases in this area of law, including class actions involving compulsory 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 and will fairly and adequately do so. VII. Violation Count I (First Amendment Challenge to Compulsory Fees): 22. The facts alleged above are incorporated here by reference. 23. The Union, under color of federal law, forces employees who have rejected Union membership to financially support it through compulsory fees or suffer discharge from their job. 11

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 12 of 17 PageID 717 24. The RLA, 45 U.S.C. 152, Eleventh, authorizes this, yet the federal government lacks a compelling interest to require employees who reject Union membership to financially support the Union. 25. Compulsory union fees, as permitted by the RLA, 45 U.S.C. 152, Eleventh, are a prior restraint on speech and violate the free association rights of employees who reject Union membership. 26. The burdens of objection and litigation on employees seeking to vindicate their First Amendment rights far exceed any constitutionally permissible burden. 27. The standards for separating the chargeable portion of union fees from the political, ideological, and non-bargaining portion are inherently vague and inappropriate to regulating speech. The initial allocation is done by self-interested union officials and the final line-drawing is done by the judiciary, which has extraordinary difficulty agreeing on and applying the proper constitutional standards. See, e.g., Lehnert v. Ferris Faculty Ass n, 500 U.S. 507 (1991). 28. Because there is no compelling governmental interest justifying compulsory union fees, and given the prior restraint, vague standards, and burden on employees free speech and free association rights, the RLA s authorization of compelled Union support, 45 U.S.C. 152, Eleventh, violates the Employees and class members First Amendment rights not to speak and not to associate. 12

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 13 of 17 PageID 718 VIII. Alternative Violation Count II (First Amendment Challenge to Compulsory Opt Out Requirement): 29. The facts alleged above are incorporated here by reference. 30. Whenever the Union, under color of law, impinges upon nonunion employees speech and associational rights (if such impingement is allowed at all), it must use procedures that are least restrictive on employee speech and association rights. Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2289 (2012). 31. When Congress passed the RLA, it authorized unions to extract only those fees and dues necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Commc ns Workers v. Beck, 487 U.S. 735, 762-63 (1988) (quoting Ellis v. Ry. Clerks, 466 U.S. 435, 448 (1984)). Thus, the Union has no authority to collect even a penny from nonmembers to support its political, ideological, and other non-bargaining activities, much less require nonunion employees to affirmatively opt out of such support. 32. The way choice is structured largely determines the outcome of a decision. The Union, as alleged above, requires employees to opt out of paying compulsory fees to which the Union has no lawful claim, forces those on payroll deduction to make a loan to the Union of that amount, makes it burdensome to revoke payroll deduction and avoid the forced loan, also makes it burdensome to file a valid objection, denies a vote and a voice to nonmembers, makes it difficult for employees to understand and follow the Union s 13

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 14 of 17 PageID 719 requirements for dissent, imposes a 30 or 31-day objection window, requires annual renewal of objections, and is the sole initial judge of the annual, chargeable amount that nonmembers are required to pay to Union. Taken as a whole, this choice structure is designed to cause the employees choice to default in a way that defeats their free speech rights and political autonomy in violation of the First Amendment s least restrictive means requirement. 33. In particular, by making it more difficult for nonmembers to choose their own political and ideological autonomy, the Union s opt out requirement structures their decision in a way that violates the First Amendment rights of Employees and the class. 34. If the RLA, 45 U.S.C. 152, Eleventh, is construed to allow the Union to collect from nonmembers its political, ideological, and other non-bargaining expenses, and to require nonmembers to affirmatively opt out to retain their political and ideological autonomy, the RLA s authorization of forced fee agreements is an unconstitutional violation of their speech and association rights. IX. Alternative Violation Count III (First Amendment Challenge to Annual Objection and Involuntary Loan Requirement): 35. The facts alleged above are incorporated here by reference. 36. Whenever the Union, under color of law, impinges upon nonunion employees speech and associational rights (if such impingement is allowed at all), it must use procedures that are least restrictive on employee speech and association rights. By mandating that nonmembers objections expire after one year, and by requiring them to 14

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 15 of 17 PageID 720 object annually to subsidizing its ideological and political activities, as opposed to treating objections as continuing, the Union has not utilized the least restrictive procedural alternative. This violates the First Amendment rights of Employees and the class. Shea, 154 F.3d at 517. 37. Even when employees successfully assert an objection, the Union improperly, under color of law, collects its political, ideological, and other non-bargaining expenses from employees who pay by payroll deduction and only returns those expenses after the passage of several months. This forced loan is not the least restrictive procedural alternative, and it violates the First Amendment free speech and associational rights of Plaintiff Employees and the class. See Hudson, 476 U.S. at 303-06. X. Prayer for Relief: WHEREFORE, Employees, including the Class Representatives, for themselves and the class, pray that this Court: A. Enter an order, as soon as practical, certifying this case as a class action, appointing Roberto Cruz, Santos Cordero, Sari Madera, and Ralph Anderson as class representatives, and appointing Attorneys Chappell, McGrath, Watkins, and Winford, as class counsel. B. Declare that the RLA s authorization of compulsory union fees, 45 U.S.C. 152, Eleventh, is unconstitutional, or in the alternative, that requiring nonunion employees to opt out of supporting union political, ideological, and/or other non-bargaining activities 15

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 16 of 17 PageID 721 is unconstitutional, or, in the alternative, that requiring an annual opt out and forced loans are unconstitutional. C. Grant equitable relief by permanently enjoining the Union from, under the RLA, forcing or attempting to force nonmembers to support it financially as a condition of employment or, in the alternative, from charging nonmembers for anything more than their pro-rata share of collective bargaining expenses unless they affirmatively consent (opt in) to support the Union s political, ideological, and/or other non-bargaining expenses, and, in any event, from requiring annual objections and involuntary loans. D. Grant a permanent injunction mandating that the Union inform all employees, within RLA bargaining units in which it is the exclusive bargaining agent, of the final Order of this Court. E. Award, as appropriate, compensatory and/or nominal damages. F. Award Employees their costs and attorneys fees in this action. G. Grant such further relief as the Court deems necessary and proper. H. Retain jurisdiction of this action for a reasonable period of time after entering a final judgment to ensure that the Union complies with the Orders of this Court. Dated: October 9, 2013 16

Case 3:13-cv-02469-N Document 37 Filed 10/09/13 Page 17 of 17 PageID 722 Respectfully submitted, /s/ David E. Watkins David E. Watkins* Texas Bar No. 20922000 dwatkins@jenkinswatkins.com Jason E. Winford* Texas Bar No. 00788693 jwinford@jenkinswatkins.com JENKINS & WATKINS A Professional Corporation 2626 Cole Avenue, Suite 200 Dallas, Texas 75204-0817 Tel: 214-378-6675 Fax: 214-378-6680 /s/ Milton L. Chappell Milton L. Chappell* (pro hac vice) mlc@nrtw.org Bruce N. Cameron (pro hac vice) bnc@nrtw.org Glenn M. Taubman (pro hac vice) gmt@nrtw.org Nathan J. McGrath* (pro hac vice) njm@nrtw.org c/o National Right to Work Legal Defense Foundation, Inc. 8001 Braddock Road, Suite 600 Springfield, Virginia 22160 Tel: 703-321-8510 Fax: 703-321-9319 Attorneys for Plaintiffs *Attorneys for Plaintiffs and Class Members 17