Lehnert v. Ferris Faculty Ass'n, 87-1700

• Decision Date: 07 November 1989
• Docket Number: No. 87-1700,87-1700
• Citation: 881 F.2d 1388
• Parties: 132 L.R.R.M. (BNA) 2088, 58 USLW 2141, 55 Ed. Law Rep. 384 James P. LEHNERT, Elmer S. Junker, James Lindsey, Sam C. Peticolas, John R. Schauble, and Theodore D. Speerman, Plaintiffs-Appellants, v. The FERRIS FACULTY ASSOCIATION, Michigan Education Association, and National Education Association of the United States, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1388

881 F.2d 1388

132 L.R.R.M. (BNA) 2088, 58 USLW 2141,

55 Ed. Law Rep. 384

James P. LEHNERT, Elmer S. Junker, James Lindsey, Sam C.

Peticolas, John R. Schauble, and Theodore D.

Speerman, Plaintiffs-Appellants, v. The FERRIS FACULTY ASSOCIATION, Michigan Education

Association, and National Education Association of

the United States, Defendants-Appellees.

No. 87-1700.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 20, 1988.

Decided Aug. 14, 1989.

Rehearing and Rehearing En Banc Denied Nov. 7, 1989.

Steven L. Dykema, Mika, Meyers, Beckett & Jones, Grand Rapids, Mich., Robert H. Chanin, Bruce R. Lerner, Bredhoff & Kaiser, Washington, D.C., Arthur R. Przybylowicz, Okemos, Mich., for defendants-appellees.

Sam F. Massie, Jr., Allaben, Massie, Vander Weyden and Timmer, Grand Rapids, Mich., Raymond J. LaJeunesse (argued), Milton A. Chappell, National Right to Work Legal Defense Foundation, Springfield, Va., for plaintiffs-appellants.

Before MERRITT, MARTIN, and MILBURN, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

The plaintiffs, six faculty members at Ferris State College, appeal the judgment of the district court in this Sec. 1983 civil rights action, claiming that the collection and use of service fees as an agency shop violated their rights under the first and fourteenth amendments. We affirm the judgment of the district court.

I.

Since 1975, the Ferris Faculty Association, an affiliate of the Michigan Education Association and the National Education Association, has been recognized under the Michigan Public Employment Relations Act, Mich.Comp.Laws Sec. 423.211, as the exclusive bargaining representative for the faculty of Ferris State College, a four-year public institution of higher learning in Michigan. During the 1981-82 membership year, which is the only relevant year for the purposes of this appeal, the plaintiff faculty members were included in the bargaining unit represented by the Ferris Faculty Association, but did not become members of the Association. The collective bargaining agreement in effect during 1981-82 included a service fee provision that required all employees in the bargaining unit who did not belong to the Ferris Faculty Association to pay a service fee equivalent to the amount of dues required of members of the Association. Of the $284.00 service fee required in 1981-82, $24.80 was paid to the Ferris Faculty Association, $211.20 went to the Michigan Education Association, and $48.00 was collected by the National Education Association. Under the unified structure of the unions, membership in the Ferris Faculty Association constituted membership in the Michigan Education Association and the National Education Association as well; consequently, the mandatory service fees paid by nonmembers such as the six plaintiffs were divided among the three affiliated unions. The plaintiff faculty members objected to the use by the unions of their service fees for purposes other than negotiating and administering a collective bargaining agreement with the Ferris Board of Control, the governing body of Ferris State College, and they filed a civil rights action under 42 U.S.C. Secs. 1983, 1985 and 1986 against the Ferris Board of Control, the Ferris Faculty Association, the Michigan Education Association and the National Education Association. In their complaint, the plaintiffs alleged that the unions' use of their mandatory service fees to engage in certain activities, including lobbying and political campaigning, violated their rights under the first and fourteenth amendments.

A trial before the court was held in January and April of 1986. On August 25, 1986, the district court issued its opinion, holding that certain union expenditures were chargeable to the plaintiffs, that other expenditures were not chargeable as a matter of law, and that other expenditures were not chargeable because the unions failed to sustain their burden of proving the expenditures were made for chargeable activities. Lehnert v. Ferris Faculty Association-MEA-NEA, 643 F.Supp. 1306 (W.D.Mich.1986). Following a settlement agreement between the parties, this appeal is limited to the claim that the district court erred in holding that the costs of certain disputed union activities were constitutionally chargeable to the plaintiff faculty members.

II.

Before addressing the union activities specifically objected to by plaintiffs, we begin our analysis by surveying the Supreme Court decisions that plaintiffs and defendants both agree must govern our resolution of this appeal. The Court initially addressed first amendment questions in the union shop context in a series of cases brought under the Railway Labor Act. In Railway Employees' Dep't v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), the Court held that the Railway Labor Act, which authorized employers and labor organizations acting as exclusive representatives of bargaining units to enter into union shop agreements, did not violate the Constitution. Several years later in International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), the Court held that the Railway Labor Act did not allow a union, even in a closed shop, to expend union funds to support political causes over the objection of dissenting union members. The Court noted that political uses of funds by a union were not uses that helped defray the expenses of negotiating and administering collective agreements or the expenses of adjusting grievances and disputes. Street, 367 U.S. at 768, 81 S.Ct. at 1799. Similarly, in Brotherhood of Railway and Steamship Clerks v. Allen, 373 U.S. 113, 121, 83 S.Ct. 1158, 1163, 10 L.Ed.2d 235 (1963), the Court characterized the union expenditures that could be charged to dissenting employees as only those "germane to collective bargaining." Most recently, in Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984), the Court delineated the line between chargeable and nonchargeable union expenditures under the Railway Labor Act. Specifically, the Court stated that

the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.

466 U.S. at 448, 104 S.Ct. at 1892.

Although the Supreme Court has, as we discussed, decided several cases concerning the union shop in the private sector, the Court has considered the constitutionality of the union shop in the public sector only once. In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Court found the same Michigan statute at issue in this case to be constitutional, thereby approving the union or agency shop in the public sector. The Court noted, however, that the line between collective bargaining, contract administration or grievance adjustment activities, for which contributions from dissenting employees may be compelled, and ideological or political activities, for which such compulsion is prohibited, may be "somewhat hazier" in the public sector. Because the process of establishing a collective-bargaining agreement in the public sector requires not only "concord at the bargaining table, but subsequent approval by other public authorities," budgetary and appropriations decisions could be regarded as an "integral part of the bargaining process" for public employees. 431 U.S. at 236, 97 S.Ct. at 1800. In Abood, the Court remarked that it had "no occasion" to attempt to define the hazy dividing line between chargeable and nonchargeable union expenditures in the public sector, but we must, with guidance from Hanson, Street, Allen, Ellis and Abood, attempt to draw such a line in resolving this appeal.

III.

The plaintiff faculty members contend on appeal that certain union activities were improperly found chargeable to them under the standards set forth in Abood and Ellis. The challenged union activities include expenditures for the costs of (1) conventions; (2) lobbying and union electoral campaigns; (3) activities on behalf of persons not employed in the plaintiffs' bargaining unit; (4) strike preparation and public relations activities; and (5) miscellaneous professional activities. We disagree with the plaintiffs' claim that the district court erred in holding these disputed expenditures to be chargeable to them.

The plaintiffs argue that union expenditures to send Ferris Faculty Association delegates to the Michigan Education Association and the National Education Association conventions and to participate in the 13E Coordinating Council, another union structure, should not be chargeable to them. We do not agree. In Ellis, the Supreme Court found that the entire cost of the national union's convention was chargeable to employees, even though a portion of the convention was apparently "political" in nature. 466 U.S. at 459, 104 S.Ct. at 1898 (Powell, J., dissenting in part). The plaintiff faculty members attempt to distinguish Ellis on the ground that the conventions of the Michigan Education Association and the National Education Association (unlike the national convention at issue in Ellis ) were those of affiliated parent unions rather than a convention of the actual exclusive bargaining representative of the plaintiffs. We are not convinced that this distinction amounts to more than a technical difference in union organization. In any event, the district court noted that the ...