Andrews v. Education Ass'n of Cheshire

Decision Date17 February 1987
Docket NumberH-83-898(JAC).,Civ. A. No. H-83-481(JAC)
Citation653 F. Supp. 1373
CourtU.S. District Court — District of Connecticut
PartiesHoward K. ANDREWS, Valerie A. Andrews, Paul Bourdeau, Robert N. Brown, Joseph Fioccla, Barbara C. Hammer, Nancy G. Hultgren, Judith Kollias, John A. Kosloski, Frances McLaughlin, Peter Navage, Mary W. Newman, Denise Panos, John A. Pawloski, Joann Peterson, Thomas Quinlan, Norman C. Remsen, Mildred C. Richard, Arlene L. Salvati, Maureen Schmidt, Barbara T. Stapleton, Frieda B. Stegerwald, George Szigeti v. EDUCATION ASSOCIATION OF CHESHIRE, Richard Bye, President, in both his individual and official capacities; New Milford Education Association, Richard Sheridan, President, in both his individual and official capacities; Branford Education Association, John D'Amato, President, in both his individual and official capacities; Connecticut Education Association, Robert F. Eagan, President, in both his individual and official capacities; National Education Association, William McGuire, President, in both his individual and official capacities; Branford Board of Education; Cheshire Board of Education; Windsor Board of Education; and New Milford Board of Education. Alexander J. JACOVINO, Peter H. Galullo, Joseph A. Mannello, Richard C. Mantiglia, Janice Eterginio, Henry P. Capozzi, Francis Desiderio, Mary Lou Walsh, George R. Desiderio, Carl J. Theriault, Kurt A. Meyer, Rosemary Hudimatch, Louis M. Ruggiero, Michael F. Arcovio, Merle Kadish Arcovio, Susan Cox, Terese P. Filippone, Richard N. Calabro, Carmel Perillo, Charlene Burkacki, Ann M. Farese, Marianne D. Derwin, Jane Mucciacciaro, Anthony Mucciacciaro, Francis G. Creto, Edmund A. Laudati, Charlotte Shocki, Marguerite R. Theriault, Charles L. Stango, Alexander F. Lenda, Jr., Thomas P. Cerasulo, George T. Berardi, William A. Guisto, John F. Keefe, Carol Mambruno, Margaret Generali, Frances B. Marcuse, Joseph B. McGurk, Mitchell Arisian, Barbara Bianco, Barbara Carrington, Anne Costa, Evelyn E. Craft, Francis P. Desiderio, Ralph E. Knapp, Ned Mencio, Gennaro M. Palmento, Lawrence Purdy, Rosemary Purdy, and David R. Macharelli v. WATERBURY TEACHERS ASSOCIATION, Connecticut Education Association, National Education Association, and Waterbury Board of Education.

John C. Scully, National Right to Work Legal Defense Foundation, Springfield, Va., for plaintiffs.

Robert H. Channin, Bruce R. Lerner, Bredhoff & Kaiser, Washington, D.C., William J. Dolan, Ronald Cordilico, Connecticut Educ. Ass'n, Hartford, Conn., for defendants.


JOSÉ A. CABRANES, District Judge:


These cases present challenges to the constitutionality of proposed procedures for determining agency fees (fees assessed by unions against non-members who benefit from the unions' bargaining and contract administration) in light of the Supreme Court's ruling in Chicago Teachers Union v. Hudson, ___ U.S. ___, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986) ("Hudson"). Plaintiffs also challenge the proposed procedures for collecting agency fees under Connecticut law.

Plaintiffs are employees of the various Connecticut school boards of education named as defendants in this action. The other named defendants are the labor organizations authorized to bargain with the school boards and other groups affiliated with these organizations. Included among these defendants are the Connecticut Education Association ("CEA") and the National Education Association ("NEA"). (The other, local education associations named as defendants may be considered collectively and denominated "LEAs.")

Plaintiffs are not members of the defendant labor organizations, but are in the bargaining units represented by these defendants and therefore are charged agency fees. These fees are collected by the board of education defendants, who function as conduits for the fees from the employees to the unions. Otherwise the defendant boards appear to have little interest in the substance of this litigation and have adopted the position of the defendant labor organizations.

In essence, plaintiffs seek a declaratory judgment that defendants' proposed system is constitutionally deficient under Hudson and a permanent injunction against enforcement of the present "union security" clauses in the contracts between the school board defendants and the association defendants. Defendants seek a declaratory judgment that their proposed system complies with the constitutional mandate of Hudson. It is undisputed that there are no genuine issues of material fact that would prevent the entry of summary judgment for the party prevailing on the questions of law presented by these motions. Fed.R. Civ.P. 56.


In Hudson, the Supreme Court stated the procedural requirements necessary to achieve the overall objective of "`devising a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining.'" Hudson, 106 S.Ct. at 1074, quoting Abood v. Detroit Board of Education, 431 U.S. 209, 237, 97 S.Ct. 1782, 1800, 52 L.Ed.2d 261 (1977). The Court held that such requirements included "an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." Id. at 1078.

Defendants' proposed "Procedure for Determining Amount of Service Fee to be Charged by Local Affiliates of the Connecticut Education Association" ("Defendants' Procedure") appended to defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Defendant Associations' Cross-Motion for Summary Judgment (filed Sept. 17, 1986) ("Defendants' Memorandum"), was created specifically to provide the procedures found to be constitutionally required in Hudson, but plaintiffs contend that this effort was a total failure. Relying upon language in Hudson emphasizing the need to minimize infringement upon first amendment rights in the creation of such procedures, plaintiffs argue that Hudson requires that a union provide the "least restrictive" or "best" system for collecting agency fees. See, e.g., Plaintiffs' Memorandum in Opposition to Defendants' Cross-Motions for Summary Judgment (filed Oct. 14, 1986) ("Plaintiffs' Memorandum") at 3. Many of plaintiffs' arguments rely on parenthetical quotations within footnotes in the Hudson decision, but these quotations only provide authority for the proposition in the main text — that proceedings affecting first amendment rights must be "carefully tailored to minimize the infringement" of such rights. Hudson, 106 S.Ct. at 1074. Moreover, this important truism was a starting point, not the end product, of the Supreme Court's analysis in Hudson. By exclusively emphasizing only the first amendment component of the Hudson decision, plaintiffs frequently ignore the actual balance between first amendment and union rights struck by the Supreme Court in Hudson and seem to assume that mere invocation of generalized propositions concerning the sanctity of the first amendment are enough to dispose of any competing union interest.

Perhaps because they are unhappy with the balance between first amendment and union interests actually struck in Hudson, plaintiffs purport to find in the Hudson opinion requirements that simply are not there. Plaintiffs read Hudson as requiring that a "least restrictive test" be applied to any proposed union scheme for collecting agency fees. According to plaintiffs, "when the least restrictive standard mandated by the Court in Hudson is applied, the union can prevail only when its system is the best." Plaintiffs' Memorandum at 3 (emphasis in original). Plaintiffs also restate the requirements of adequate notice, prompt impartial review, and escrow of funds in terms far stronger than those which appear in the Hudson opinion itself:

In general terms, a "least restrictive system" requires advance disclosure of the basis for the compulsory fee verified by an independent auditor, prompt review by a genuinely neutral decisionmaker, an independently controlled escrow account, and an objection and appeal procedure that is simple, fair, and readily accessible.

Id. Compare Hudson at 1078. At one point, plaintiffs appear to deny that any balance whatsoever is required by Hudson: "The fee payors' rights are constitutionally based and no `cost' can permit those rights to be violated." Brief in Support of Plaintiffs' Motion for Summary Judgment (filed Aug. 15, 1986) ("Plaintiffs' Brief") at 31. But if not tautological, this statement is simply incorrect. The least restrictive test by definition presumes a balancing of interests, not an inevitable trumping of union rights by any conceivable first amendment claim. Despite plaintiffs' characterization of the dispute between themselves and defendants as one between "constitutionality" on the one hand and "administrative convenience" on the other, Plaintiffs' Memorandum at 2-3, it is no disparagement of the constitutional interests at issue in this litigation to recognize that costs and practicality are at the heart of this case.


The Supreme Court in Hudson did not simultaneously recognize that the union's right to collect an agency fee is important enough to infringe upon first amendment rights and then take back that right by requiring unions to meet a constitutional standard which makes the collection of those fees impossible. Nor did the Court rule that it is constitutionally necessary for defendants' fee collection system to provide those procedural protections which would be necessary if only first amendment interests were at stake. For example, the Supreme Court explicitly rejected the idea that particular procedures, such as placing 100% of the nonmember objector's fees in escrow (as is...

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