UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ...

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION SEIU HEALTHCARE MICHIGAN, Plaintiff, v. Case No. 2:12-cv-12332-NGE-DRG RICHARD SNYDER, in his official capacity Hon. Nancy G. Edmunds as Governor of Michigan; OLGA DAZZO, in her official capacity as Director of the Michigan Department of Community Health; and ANDY DILLON, in his official capacity as Michigan State Treasurer, Defendants. _______________________________________/

John R. Canzano (P30417) KLIMIST, MCKNIGHT, SALE, MCCLOW & CANZANO, P.C. 400 Galleria Officentre, #117 Southfield, MI 48034 (248) 354-9650 [email protected]

Date: June 20, 2012 Time: 9:30 a.m.

Scott A. Kronland (Application for Admission Pending) P. Casey Pitts (Application for Admission Pending) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 [email protected] [email protected] Attorneys for Plaintiff ________________________________________________/

SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION ...................................................1 CERTIFICATE OF SERVICE ........................................................................................................5

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TABLE OF AUTHORITIES FEDERAL CASES Burlington Northern R. Co. v. Nebraska, 802 F.2d 994 (1986) ....................................................................................................... 3 Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373 (6th Cir. 1995) ......................................................................................... 2 Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307 (6th Cir. 1998) ......................................................................................... 3 Wash. Serv. Contractors Coalition v. Dist. of Columbia, 54 F.3d 811 (D.C. Cir. 1995) ......................................................................................... 3 Ex Parte Young, 209 U.S. 123 (1908) ....................................................................................................... 3

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SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Plaintiff SEIU Healthcare Michigan (“SEIU HCMI” or “Union”) submits this supplemental brief in support of its motion for a preliminary injunction. The Union submitted a Brief in Support of Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction on May 29, 2012, Doc. #2, and, as the Court has permitted, we will continue to rely on that brief as the primary statement of our legal position. That brief and the evidence submitted therewith demonstrate that SB 1018 operates as a substantial impairment of the Union’s existing collective bargaining agreement (“CBA”), that the application of SB 1018 to the existing CBA is not “reasonable and necessary,” and that the Union and its members will suffer irreparable harm in the absence of a preliminary injunction to maintain the status quo. The Union makes only two additional points in this supplemental brief, both in response to arguments raised by defendants at the May 30, 2012 hearing: 1.

At that hearing, defendants suggested that the Union would suffer no irreparable

harm if the dues and fees were placed in escrow pending a final judgment and the outcome of an appeal, because that loss of funds would not be “ruinous.” The First Supplemental Declaration of Bob Allison, submitted herewith, demonstrates that this is not correct. At the outset, we emphasize that the renunciation of the CBA will impose on the Union and those it represents significant harms that are distinct from the loss of dues and fees. As detailed in our prior submission, those harms include the Union’s loss of recognition and representational rights, including access to grievance procedures and enforcement mechanisms relating to the employee rights contained in the CBA. The bargaining unit’s members will lose the existing legal protection for the employment terms (and enforcement mechanisms) contained in the CBA. This harm to the members would of course injure the Union as well, both in terms 1

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of its status among its members and inasmuch as the Union is an association composed of those members. See May 29, 2012 Allison Decl. ¶¶31-34. Apart from the harm that the Union and its members will suffer from the Union’s loss of recognition as the providers’ legitimate bargaining representative, the dues and fees at issue here represent more than half of the Union’s total income, and virtually all of the operating income that the Union uses to represent the interests of providers in the Home Help Program bargaining unit. June 6, 2012 Allison Decl. ¶¶16, 18. Any delay in receiving those funds will be ruinous for the Union, which will have to lay off a significant portion of its staff and will be unable to represent the providers and to protect their interests, whether in collective bargaining, in upcoming legislative matters, during the impending general election, or otherwise. Id. ¶¶17-18; see, e.g., Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1381-82 (6th Cir. 1995) (finding irreparable harm where plaintiff was threatened with loss of more than 60% of total projected revenues). In addition, because the Union would have little or no income to commit to representing the Home Help Program providers, those providers would be denied the benefits of representation by their chosen representative – even though the very funds that they want to be used for that purpose have already been withheld from them. June 6, 2012 Allison Decl. ¶18. The Union is an advocacy organization, and the inability of the Union to advocate vigorously on behalf of its members now could no more be remedied after the fact than if a political candidate’s campaign treasury were placed into escrow and released to the candidate after the election is over. Moreover, although this case does involve money, it is not a typical injunction case in which the defendants claim some entitlement to that money. Defendants are merely the conduit,

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and more than 98 percent of the funds at issue are dues paid by voluntary Union members to their chosen representative.

May 29, 2012 Allison Decl. ¶22.

Defendants do not have a

legitimate interest in holding those funds in escrow pending resolution of this case. 2.

Defendants also suggested that the Union should have sued the Michigan Quality

Community Care Council (“MQC3”), not them. That is not correct. State officers who threaten to enforce “an unconstitutional [state] act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” Ex Parte Young, 209 U.S. 123, 155-56 (1908). Defendants are state officials who are implementing and enforcing SB 1018, a state law whose explicit purpose is to impair the Union’s contractual obligations and rights, on the basis of the Michigan Attorney General’s determination for the Executive Branch as a whole that SB 1018 renders the Union’s existing contractual bargaining agreement “invalid and void.” May 29, 2012 Allison Decl. Exh. E, at 2. Because defendants are implementing and enforcing SB 1018, they are the proper defendants in this Contract Clause action to prevent implementation of that law. See, e.g., Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307 (6th Cir. 1998) (Contract Clause cause of action against state officials charged with enforcing law prohibiting payroll withholding); Wash. Serv. Contractors Coalition v. Dist. of Columbia, 54 F.3d 811 (D.C. Cir. 1995) (Contract Clause cause of action against District of Columbia challenging District law regulating employment relationship between certain service contractors and their employees); Burlington Northern R. Co. v. Nebraska, 802 F.2d 994 (1986) (Contract Clause cause of action against Nebraska alleging that state law impaired employer’s existing contractual bargaining agreement).

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Respectfully submitted, ALTSHULER BERZON LLP By: /s/ Scott A. Kronland SCOTT A. KRONLAND P. CASEY PITTS 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 [email protected] [email protected] KLIMIST, McKNIGHT, SALE McCLOW & CANZANO, P.C. JOHN R. CANZANO (P30417) 400 Galleria Officentre, Suite 117 Southfield, MI 48034-8460 (248) 354-9650 [email protected] Attorneys for Plaintiff Dated: June 6, 2012

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CERTIFICATE OF SERVICE I hereby certify that on June 6, 2012, I electronically filed the foregoing document with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record that are registered with ECF. I hereby certify that I have emailed and mailed by United States Postal Service the foregoing document to the following non-ECF participants: Joshua B. Smith Chantal B. Fennessey Michigan Department of Attorney General Health, Education, and Family Services Division PO BOX 30758 Lansing, MI 48909 [email protected]. [email protected]

/s/ Scott A. Kronland ALTSHULER BERZON LLP Attorney for Plaintiff 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 [email protected] CA State Bar Number 171693

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