Lowary v. Lexington Local Bd. of Educ.

• Decision Date: 02 March 1988
• Docket Number: No. C86-1536A.,C86-1536A.
• Citation: 704 F. Supp. 1456
• Parties: William LOWARY, et al., Plaintiffs, v. LEXINGTON LOCAL BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

704 F. Supp. 1456

William LOWARY, et al., Plaintiffs, v. LEXINGTON LOCAL BOARD OF EDUCATION, et al., Defendants.

No. C86-1536A.

United States District Court, N.D. Ohio, E.D.

March 2, 1988.

COPYRIGHT MATERIAL OMITTED

Glenn M. Taubman, Rossie D. Alston, Jr., Nat. Right to Work Legal Defense Foundation, Inc., Springfield, Va., James Calhoun, Calhoun, Benzin, Kademenos & Heichel, Mansfield, Ohio, for plaintiffs.

Alexander M. Andrews, Ulmer, Berne, Laronge, Glickman & Curtis, Cleveland, Ohio, for all other defendants.

Ira Mirkin, Green, Schiavoni, Murphy, Haines & Scambati, Youngstown, Ohio, for Lexington Teachers Ass'n and Ohio Educ. Ass'n.

Loren L. Braverman, Kathleen McManus, Columbus, Ohio, for Anthony Celebrezze.

ORDER

DOWD, District Judge.

I. INTRODUCTION.

This is a § 1983 action brought by the plaintiffs challenging the fair share fee provisions of the collective bargaining agreement between the defendant Lexington Local Board of Education and the defendant Lexington Teachers' Association. The case was submitted to the Court on stipulated facts and on October 21, 1987, the Court issued a Memorandum Opinion finding that the fair share fee provision plans for the years 1985-86 and 1986-87 were unconstitutional. 704 F.Supp. 1430. The Court maintained continuing jurisdiction over this action for the supervision of a proper relief and remedy.

The Court has before it a number of matters pending for resolution including: (1) the plaintiffs' motion for partial reconsideration of the memorandum opinion issued on October 21, 1987, docket # 131; (2) the defendant Ohio Education Association's (OEA) motion for partial reconsideration of the October 21, 1987 memorandum opinion, docket # 134; (3) the constitutional validity of the OEA's proposed fair share fee procedure for the year 1987-88, docket # 138 and # 147; (4) the determination of the monetary and equitable relief; and (5) the plaintiffs' motion to intervene in the cross complaint filed by the Lexington Local Board of Education against the Lexington Teachers Association and the Ohio Education Association, docket # 140.

The Court conducted a hearing on all the above-described motions on January 11, 1988 with counsel present and participating. Upon consideration of the parties' briefs and oral arguments, the Court is now in a position to rule on the motions and questions before the Court.

II. MOTIONS FOR RECONSIDERATION.

A. Plaintiffs' Motion for Partial Reconsideration.

The plaintiffs move the Court pursuant to Rule 59, Fed.R.Civ.P. for reconsideration of that part of the Court's memorandum opinion of October 21, 1987 which holds that the plaintiff, Sara Wyatt, is precluded from relief or damages as a result of the deductions made in the year 1985-86 because she failed to object to the use of her funds for noncollective bargaining purposes. The plaintiffs argue that the Court found that for the year 1985-86 the fair share fee procedure employed by the union failed to provide for proper notice of the fair share fee reduction, proper financial disclosure, and a proper opportunity to object. Consequently, the plaintiffs argue that Ms. Wyatt cannot be penalized for failing to object under a plan that was constitutionally deficient in terms of notice. The defendant Association opposes the plaintiffs' motion and argues that the Court correctly decided that Ms. Wyatt is precluded from relief in the year 1985-86 because she failed to object to the fee collection.

At page 1446 of the October 21, 1987 memorandum opinion, the Court found

that plaintiff Sara Wyatt failed to object to the fair share fee deduction in the 1985-86 school year. Stipulated Fact 35. It is well settled that the dissenting member bears the duty of objecting to the fair share fee before relief is granted. Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 1076 n. 16 (1986); Abood v. Detroit Board of Education, 431 U.S. 209, 238 (1977). Accordingly, any relief for damages as a result of a deduction, made in the year 1985-86 are foreclosed as to the plaintiff Sara Wyatt.

Memorandum Opinion at 1446. The plaintiff argues that the cases cited in Hudson at footnote sixteen addressed the issue of requiring an objection before a challenge to the expenditure of fees, and not to a challenge of whether a plaintiff was afforded due process in the collection of the fees. The plaintiffs argue that the latter is the case here, i.e., that there is a challenge to the collection aspect of the fair share fee and a denial of due process. Accordingly, the plaintiffs argue that the plaintiff Sara Wyatt was not afforded proper due process because of the inadequate notice under the 1985-86 fair share fee reduction plan and as such, could not properly object to a constitutionally deficient plan. The defendant Association argues that there is no distinction between expenditures and collection in the cases relied upon by this Court in denying plaintiff Wyatt's relief in the year of 1985-86 are controlling here. The Court agrees.

The Court declines to accept the plaintiffs' due process argument on a motion for reconsideration. The plaintiffs have failed to convince the Court that it has overlooked or neglected to adopt any alternative reasoning. Moreover, this is the first time the plaintiffs have attempted to make this collection versus expenditure distinction. The Court remains committed to the decision that plaintiff Sara Wyatt's failure to object to the 1985-86 plan for a year's deductions foreclosed any relief for violations of that year's deductions. The relevant case law supports the defendant's proposition that dissent is not to be presumed.

Accordingly, the plaintiffs' motion for reconsideration is denied.

B. Defendants' Motion for Reconsideration.

The defendant Association's motion for reconsideration pursuant to Rule 59, Fed.R. Civ.P., asks the Court to reconsider that part of the October 21, 1987 memorandum opinion which addresses the role of the independent auditor in the fair share fee computation process. The defendant Association takes exception to the Court's interpretation of Tierney v. City of Toledo, 824 F.2d 1497 (6th Cir.1987), where the Court stated that "the accounting must clearly identify whether a particular major category of expense, is, in the auditor's view, for ideological purposes or for collective bargaining purposes." Memorandum Opinion at 1444 (emphasis added). The defendant Association asks the Court to delete the phrase "in the auditor's view" from page 1444 of the memorandum opinion because Tierney and Supreme Court cases on this issue clearly do not require the auditor to perform such a task. The plaintiff opposes the defendant Association's motion for partial reconsideration and argues that the Court properly identified the role of the auditor.

The defendant Association argues that the Court's holding requires the auditor to make an independent determination of what items are chargeable and nonchargeable to objecting nonmembers. The defendant Association argues that such a requirement goes beyond the mandate of Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986) and Tierney. The defendant Association argues that those two cases merely required that the union's expenditures be verified by an independent auditor, and did not require the independent auditor to make a legal determination of chargeability. The legal determination of chargeability is, according to the defendant Association, a decision to be made by the impartial decisionmaker.

The defendant Association directs the Court's attention to the Second Circuit case of Andrews v. Education Ass'n of Cheshire, 829 F.2d 335 (2d Cir.1987) where the Second Circuit specifically addressed the role of the independent auditor. The fair share fee procedure under attack in Andrews provided a nonmember with two types of financial information. First, the nonmember received the year-end financial report of the union showing its various expenses verified by an independent auditor. Andrews, 829 F.2d at 339. Second, the nonmembers were provided a memorandum listing the unaudited major categories of chargeable activities. Id. The nonmembers argued that the fair share procedure was constitutionally inadequate because it did "not provide for an independent audit of the breakdown of expenditures to each major category of chargeable activities, even though it did provide for independent verification of the past-year's expenditures." Id.

The Second Circuit carefully considered the standards enunciated by the Supreme Court in Hudson and concluded that the nonmember's interpretation of the role of independent auditor was misplaced. The Court viewed the nonmembers argument as requiring the auditor to make a legal determination of chargeability rather than an accounting decision. Andrews, 829 F.2d at 340. The Second Circuit found that "Hudson's auditor requirement is only designed to ensure that the usual function of an auditor is fulfilled. That usual function is to ensure that the expenditures which the union claims it made for certain expenses were actually made for those expenses." Id. The Court viewed the nonmember's approach as requiring the independent auditor to make the same decision as the impartial decisionmaker. "The appellants' interpretation of Hudson's auditing requirement is overly broad because it seeks to have the auditor function both as an auditor in the traditional sense and as the independent decisionmaker as to chargeable expenses." Id. (footnote omitted). The defendant Association asks this Court to adopt a similar analysis regarding the role of the independent auditor.

The defendant Association also argues that although Tierney may be read broadly, it cannot be read as requiring the independent auditor to make the determination of chargeability. The defendant Association points out that the Court's interpretation of Tierney fails to cite any...