Flosenzier v. John Glenn Educ. Ass'n

• Decision Date: 24 October 1995
• Docket Number: No. 71A05-9501-CV-16,71A05-9501-CV-16
• Citation: 656 N.E.2d 864
• Parties: 151 L.R.R.M. (BNA) 2059, 104 Ed. Law Rep. 850 Barbara FLOSENZIER and Patricia Setnor; Kent Adams; Robert Miller and Lori Overmyer, Appellants-Defendants, v. JOHN GLENN EDUCATION ASSOCIATION, Mishawaka Education Association, and Penn-Harris-Madison Teachers Association, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 864

656 N.E.2d 864

151 L.R.R.M. (BNA) 2059, 104 Ed. Law Rep. 850

Barbara FLOSENZIER and Patricia Setnor; Kent Adams; Robert

Miller and Lori Overmyer, Appellants-Defendants, v. JOHN GLENN EDUCATION ASSOCIATION, Mishawaka Education

Association, and Penn-Harris-Madison Teachers

Association, Appellees-Plaintiffs.

No. 71A05-9501-CV-16.

Court of Appeals of Indiana.

Oct. 24, 1995.

William F. Diehl, Indianapolis, Milton L. Chappell, Springfield, VA, for appellants.

Richard J. Darko, Mary Jane LaPointe, Lowe Gray Steele & Hoffman, Indianapolis, for appellees.

OPINION

RILEY, Judge.

Defendants-Appellants nonunion teachers (Teachers) employed by three public school corporations appeal from a summary judgment in favor of the John Glenn Education Association, the Mishawaka Education Association, and the Penn-Harris-Madison Teachers Association (collectively referred to as "Associations") in an action against the Teachers for failing to pay their fair share fees for the 1992-93 contract year. ¹

We affirm.

ISSUES

The Teachers present the following consolidated and restated issues for our review:

1. Is the evidence submitted by the Associations adequate to support the trial court's grant of summary judgment in light of our decision in Albro v. Indianapolis Educ. Assoc. (1992), Ind.App., 585 N.E.2d 666, aff'd and adopted by Fort Wayne Educ. Assoc. v. Aldrich (1992), Ind., 594 N.E.2d 781, reh'g denied?

2. Did the Teachers affirmatively set forth specific facts establishing the existence of genuine issues in dispute?

FACTS ²

The John Glenn Education Association is the exclusive bargaining representative of the certificated school employees of the Board of School Trustees of the John Glenn School Corporation. The Mishawaka Education Association is the exclusive bargaining representative of the certificated school employees of the Board of School Trustees of the School City of Mishawaka. The Penn-Harris-Madison Teachers Association is the exclusive bargaining representative of the certificated school employees of the Board of School Trustees of the Penn-Harris-Madison Corporation. See IND.CODE 20-7.5-1-1 (1993) et seq. The Associations entered into collective bargaining agreements with their respective school boards covering the 1992-93 school year. Each collective bargaining agreement contains a provision that requires the members of the bargaining unit represented by an association or union, who do not become members of the union, to pay a fair share fee to the union and its affiliated organizations, the Indiana State Teachers Associations (ISTA) and the National Education Association (NEA) for services rendered and expenses for collective bargaining, contract administration, grievance adjustment, and other costs related to its duties as exclusive bargaining representative. ³

In the fall of 1992, the Associations provided particulars on union expenses for the contract year to nonunion members of the bargaining units showing the Associations' expenditures and explaining which expenditures it believed were properly charged as part of the fair share fee. ISTA then engaged in non-binding arbitration under the auspices of the American Arbitration Association (AAA) which determined the fair share fee for the 1992-93 school year at $363.84 for the John Glenn Education Association, $381.45 for the Mishawaka Education Association, and $379.43 for the Penn-Harris-Madison Teachers Association. ⁴

The Associations initiated legal proceedings against nonunion members of the bargaining units who, after notice, refused to pay the 1992-93 fair share fee. The Associations moved for summary judgment which the trial court granted, awarding the Associations the fair share fees as determined by the AAA.

The Teachers appeal.

DISCUSSION

Standard

The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Kerr v. Carlos (1991), Ind.App., 582 N.E.2d 860, 863. When reviewing a grant of summary judgment, we face the same issues as the trial court and carefully scrutinize the trial court's determination to ensure that the nonprevailing party is not improperly prevented from having his day in court. Oelling v. Rao (1992), Ind., 593 N.E.2d 189, 190. "On appeal, a trial court's grant of summary judgment is 'clothed with a presumption of validity.' The appellant bears the burden of proving that the trial court erred in determining that there are no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law." Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431, 434. We liberally construe all inferences and resolve all doubts in the nonmovant's favor. Inland Steel v. Pequignot (1993), Ind.App., 608 N.E.2d 1378, 1381, trans. denied. Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper when there is no dispute regarding facts that are dispositive of the litigation. Murphy v. Mellon Accountants Professional Corp. (1989), Ind.App., 538 N.E.2d 968, 969, reh'g denied, trans. denied.

The present case does not involve disputed material facts; rather, it stems primarily from conflicting interpretations of recent case law, specifically, the methodology for proving the fair share fee in light of Albro v. Indianapolis Educ. Assoc. (1992), Ind.App., 585 N.E.2d 666, aff'd and adopted by Fort Wayne Educ. Assoc. v. Aldrich (1992), Ind., 594 N.E.2d 781, reh'g denied. Thus, our focus is on the second part of the summary judgment test, whether the moving party is entitled to judgment as a matter of law.

I.

The "agency shop" provision and requirement for payment of a fair share fee contained in the contracts between the Teachers and their respective Association is valid and enforceable through collection proceedings such as the present action. See Abood v. Detroit Bd. Of Educ. (1977), 431 U.S. 209, 215, 97 S.Ct. 1782, 1789, 52 L.Ed.2d 261. In such an action, the union has the burden of proving the amount of the fair share fee, and it does so by establishing the ratio of chargeable expenses to total expenses. Albro, 585 N.E.2d at 668. Once established, the ratio, expressed as a percentage, is multiplied by the amount of a union member's dues to determine a nonunion member's fair share fee. Abood, 431 U.S. at 215, 97 S.Ct. at 1789. Prior to Albro, a union could prove the amount of a fair share fee by a formula that subtracted its nonchargeable expenses from its total expenses. See Fort Wayne Educ. Assoc. v. Aldrich (1992), Ind.App., 585 N.E.2d 6, 9, vacated, (1992), Ind., 594 N.E.2d 781, reh'g denied; Cheeseman, 527 N.E.2d at 719; Abels v. Monroe County Educ. Assoc. (1986), Ind.App., 489 N.E.2d 533, 539, reh'g denied, trans. denied, cert. denied, (1987), 480 U.S. 905, 107 S.Ct. 1347, 94 L.Ed.2d 518, overruled in part by Albro, 585 N.E.2d 666; New Prairie Classroom Teachers Assoc. v. Stewart (1986), Ind.App., 487 N.E.2d 1324, 1328, reh'g denied, trans. denied, cert. denied, (1987), 480 U.S. 917, 107 S.Ct. 1370, 94 L.Ed.2d 686. However, in Albro, Judge Shields changed this formulation, holding that chargeable expenses must be proven affirmatively. Albro, 585 N.E.2d at 670; see Chicago Teachers Union v. Hudson (1986), 475 U.S. 292, 306-07, 106 S.Ct. 1066, 1076, 89 L.Ed.2d 232.

In the present case, the Teachers contend that Albro not only changed the formula by which a union arrives at a fair share fee but also the quantity and nature of the proof that a union is required to produce. Indeed, the Teachers suggest that the Albro requirement of affirmative proof prohibits a court from granting summary judgment in favor of a union in fair share fee collection cases. See Appellant's Brief at 7. They do this relying mainly upon two footnotes from that case.

The Teachers argue:

Analogous to the affidavits and exhibits filed in Albro, the affidavits and exhibits filed herein contain "a list of expenditures of each ISTA department, the structure, operation, and activities of each department, and a statement of chargeable and nonchargeable expenses." Id. at 668 n. 2. However, this court specifically held that the mere listing of chargeable and nonchargeable activities and expenses does not meet the unions' burden of proving their chargeable expenses. Id.

Appellant's Brief at 14 (citations in original). ⁵ Initially, we note that specific holdings are rarely found in footnotes. More significantly, in Footnote 2 Judge Shields was concerned with the methodology of proving chargeable expenses, differentiating between the previously accepted method of subtracting nonchargeable expenses from total expenses to arrive at the chargeable expenses, and the proposed method of affirmatively proving chargeable expenses. She was not commenting on the sufficiency of the unions' documentation to prove chargeable expenses.

The Teachers also rely on Albro 's Footnote 5 which they assert demands that unions produce more evidence of an exact nature to prove that fair share fees are based solely on chargeable union expenses. The Teachers characterize the evidence produced in this case as "twenty-two summary documents and seven self-serving and conclusory affidavits" and seek instead that the Associations prove their chargeable expenses using "the actual, documentary, best evidence and other proof of the exact nature of the unions activities and expenses." Appellant's Brief at 1. The argument goes on to suggest that in order for a union to meet its prima facie burden of proof it would need to produce all the time and expense reports created by its employees during a contract year, and possibly require that all union-staff employees testify at trial. ⁶ Apparently, while depending upon the language of two footnotes, Teachers have overlooked the body of the Albro decision which states, in relevant part:

we continue to recognize that absolute precision will not be expected or required in the calculation of the...